2216260 (Refugee)

2216260 (Refugee) [2023] AATA 4562 (6 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2216260
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Christine Cody
DATE:6 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 6 November 2023 at 4:59pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – Federal Circuit and Family Court remittal – initial claims – illegal money lender – new claims – expression of political opinion in the workplace – depression – finances/work opportunities – credibility concerns – war between China and Taiwan – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 418, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW – BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).
The applicant who claims to be a citizen of Taiwan (Republic of China), applied for the visa on 12 December 2018. The applicant’s protection visa claims related to the consequences for him and his family of taking out a loan from illegal money lenders.
The delegate considered the claims, noted there was insufficient detail, referred to the law and country information and refused to grant the visa.
The applicant lodged an application for review to the Tribunal on 1 September 2019. He provided a copy of the delegate’s notification letter to the Tribunal.
The Tribunal received from the Department its file in accordance with s 418(3) of the Act, and has confirmed that it had received all relevant documents.
The Tribunal (“the first Tribunal”) affirmed the delegate’s decision on 25 January 2022. The applicant had not attended a scheduled hearing before the first Tribunal. The applicant lodged an application for review with the Federal Circuit and Family Court of Australia (“FCFCA”). In his supporting affidavit he stated that he had got confused with the hearing date and his English was poor and he had not checked his emails all the time. The first Tribunal’s decision to affirm was set aside by the FCFCA on 27 October 2022 on the grounds that the first Tribunal committed a jurisdictional error by making its decision on the papers in the circumstances.
The matter is now before the current Tribunal (differently constituted, referred to as “the Tribunal”) pursuant to the order of the FCFCA.
The applicant appeared before the Tribunal on 10 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal checked that the applicant understood the interpreter and said that it is very important that he say immediately if he does not understand what is being said as the Tribunal can rephrase it. He agreed. The Tribunal explained that it would make up its own mind on the material before it and it was not bound to follow the delegate’s findings, and it noted that the first Tribunal’s findings had been quashed.
The applicant made assertions about people who had assisted him with his case. He gave changing evidence about what may have previously been sent to either the Department or the Tribunal. He suggested that submissions would be sent to the Tribunal and the Tribunal allowed further time for this after the hearing. He then engaged with the Tribunal and sought further time; the Tribunal agreed to delay a further 2 weeks, but not the period of 3 months that he sought. He did not respond to the Tribunal’s letter, nor did he contact the Tribunal within the 2 weeks or after the expiry of the 2-week period. This is discussed in more detail below.
CLAIMS AND EVIDENCE
The Departmental file
The applicant lodged his protection visa application form electronically on 12 December 2018.[1] He later provided a certified copy of his passport to the Department.
Protection visa application form
[1] Confirmed by the Department’s Notification letter provided by the applicant to the Tribunal with his application for review form.
According to his form, he was born in [year] in Hsinchu City. His ethnicity is Chinese and his religion is Buddhist. He speaks, reads and writes in English, Cantonese, and Chinese.
He departed legally from Taipei airport [in] September 2018, arriving in Australia [in] September 2018 with a visitor visa. He had never previously travelled (although at hearing he told the Tribunal he travelled to China in 2017).
His provided only one address in Taiwan (the same as his place of birth) stating that he resided there until he came to Australia.
The applicant attended primary and high school in Taichung City, and completed a [Discipline 1] course at [University 1], in Tainan City (he told the Tribunal at hearing that he had actually studied a course in [Discipline 2] at university).
He has never been employed (this changed at hearing, as discussed below); he has worked in a small business and has been supported by family members.
The applicant’s claims relate to Taiwan and are as follows:
Provide reasons why this applicant left that country
I have left my country, because I have failed to settle big amount of outstanding debt that I have owed from money lender. In subsequent to the late of monthly payment as agreed, the gangster of the money lender tend to harm my siblings and my closed family members. This has caused a huge impact and ruined my life. It also ruined my relationship with my family members because none of my family members could afford to help me financially since we came from a very poor family backgrounds.
Did the applicant experience harm in that country?
Yes. The money lender came to our house and threaten our family members to kill us due to our failure of settling the debts.
Did the applicant seek help within the country?
No. I don’t think Taiwan is safe for me so do other region of Taiwan as I believe the loan shark money lender will eventually found me.
Explain what the applicant thinks will happen to them if they return to that country?
If I return to Taiwan, the gangster/money lender will continue to use violence as they did to me and my family members before. I don’t think staying in Taiwan is the best option, otherwise if I stay in Australia, I’m able to work and save money to pay my debt.
Does this applicant think they will be harmed or mistreated if they return to that country?
Yes. Death, the money lender and failure of settling debt.
Does this applicant think the authorities of that country can and will protect this applicant if they go back?
No. Taiwan authorities shall not be able to protect me because this illegal conduct of borrowing money from loan shark is a personal responsibilities.
Does this applicant think they would be able to relocate within that country to an area where they would not be harmed?
No because the money lender will still be able to identify my current location.
In the application form it was stated that the applicant must provide all details about why he is seeking protection, noting that a decision may be made on the information provided in the application and applicant may not be given another opportunity to present these claims; therefore it is important that the applicant include all details relevant to their case and attach any supporting documentation to the application before it is submitted. The applicant declared in submitting the form that the information was all true and correct.
The applicant provided his email address for correspondence and did not appoint a representative or authorised recipient in his application form submitted to the Department. He stated that he had received no assistance in completing the form. He did not provide any supporting documentation or further information to support his claims.
The delegate’s decision record
The applicant was not invited for an interview. The delegate’s decision record noted that no decision was made as to the subjective nature of the applicant’s claimed fear of return. The delegate was not satisfied that the applicant’s claimed fear of harm was due to political opinion, religion, race, nationality or membership of a particular social group and thus did not accept that the applicant was a refugee. Concerning complementary protection the delegate referred to country information indicating that Taiwan has a low crime rate, is a beacon of liberalism in the East Asia region and can be regarded as a vibrant liberal democracy, with the then newly elected President Tsai Ing-wen committing to implement reforms to improve the lives of Taiwanese people. Corruption was seen as a problem but the authorities had taken action in this regard. The delegate was not satisfied that the applicant faced a real risk of significant harm.
The first Tribunal
The applicant did not provide any documentation to the first Tribunal other than a copy of the delegate’s notification letter, and an application for review form on 1 September 2019. The applicant did not provide details of a representative or authorised recipient in his application for review form; he provided the same email address for correspondence as had been provided to the Department, which he stated was both his email address, and his email address for correspondence.[2]
[2] In his Affidavit to the court (8 February 2022) he suggested that he had a different email address. On 7 November 2022 the Tribunal wrote to the applicant’s postal address stating that it would continue to send emails to the email address he had initially provided the Tribunal [in his application for review form] unless otherwise informed. He did not respond. The Tribunal sent all correspondence (including the hearing invitation) to the initial email address (and he did attend the hearing).
Request for evidence, and correspondence with the first Tribunal and the current Tribunal
The first and current Tribunal wrote to the applicant at his email address informing him on a number of occasions that he should provide any information or documents as soon as possible, as follows:
·     On 3 September 2019 the Tribunal registry emailed the applicant an acknowledgement of his application for review, informing him that he should inform the Tribunal immediately if his personal circumstances change, and that any material or written arguments should be provided to the Tribunal as soon as possible.
·     On 22 October 2021 the applicant was emailed a letter by the first Tribunal inviting him to attend a hearing on 10 November 2021. He was informed that any information that he would like to rely upon should be provided to the first Tribunal within 7 days, and any documents should be provided by 3 November 2021.
·     On 30 October 2021 he provided his signed and dated Response to Hearing Invitation, confirming his email address and stating that he had no documents to rely upon.
·     The hearing scheduled for 10 November 2021 was subsequently cancelled by the first Tribunal, and on 20 December 2021 the applicant was emailed a new hearing invitation by the first Tribunal, for 20 January 2021, which hearing invitation also requested that he provide, at least 7 days before the hearing, all documents he intends to rely on to establish that he meets the criteria for the visa.
·     He did not attend the hearing on 20 January 2021, but on 21 January 2021 he acknowledged receipt of the hearing invitation sent on 20 December 2021 (which had requested documents to be provided), saying that he had not seen it on time as he did not check his email every day and his English is not that great.
·     On 5 September 2023 the current Tribunal emailed the applicant stating that his case was being prepared and he should provide any documents or information as soon as possible.
·     On 22 September 2023 he was sent an email inviting him to a hearing on 10 October 2023, and stating that he should provide any information within 7 days and all documents he intends to rely on to support his case by 3 October 2023.
The applicant provided no documentation, submissions, evidence or information to the Tribunal before the hearing.
Evidence at hearing
The applicant’s evidence included the following:
·     The applicant said that he changed his name officially in Taiwan; he used to be known as [Name 1].
·     He stated that the address in his application form was his previous home address. He and his elder sister and their mother had resided at a different address, in the [named] District, Taichun City, for the 8 years before he came to Australia. His mother and elder sister still live there. His mother is a [Occupation 1] who is not currently working as she has an injury, and his elder sister is an [Occupation 2] in a [company]. He is in contact with them about once per week. When asked what he discussed with his family, he said they ask how he is going and they discuss investing in the stock market (cryptocurrency).
·     The Tribunal asked the applicant if his protection visa application form was true and correct and he said no (this is discussed further below). New claims were made at hearing.
·     In Taiwan he worked as a [Occupation 3] doing [specified] work in an office. When asked the name of the company, he said he forgot; after a while he said it was [Company 1]. He said he worked there from 2017–2018. Then he changed his evidence stating he stopped working there 11 months before he came to Australia [thus in about November 2017], he later changed his evidence again and said that he stopped working there in early 2018.
·     He then said that he did a delivery job in a [Industry 1] company in February 2018.
·     When asked what he did between February 2018 and September 2018 when came to Australia, he said he was jobless and staying at home. He supported himself from his savings.
·     When he came to Australia, in the first 1–2 months he had no job, although he would occasionally go pick [fruits] because he had to support himself (later he changed his evidence and said he supported himself without working, from his savings, in that period). After 1–2 months he started work in a [factory] and on a farm. He worked there for about 3 years. In 2023 he started working in the city on a construction site.
·     The applicant said that when he came to Australia he did not have the right to work. When he was picking [fruits] a friend told him that if he wanted to get the right to work he could lodge a refugee visa application.
Further relevant evidence is set out below.
At the end of the hearing the Tribunal put to the applicant that it had concerns with his credibility and it may not accept that he has a genuine fear of any of the matters he has claimed, but it has not made up its mind and will delay making a decision to allow the applicant further time to produce evidence or submissions.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
The issue in this case is whether or not the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant produced his passport to the Department and the Tribunal. The Department accepted that he was a citizen and national of Taiwan (Republic of China), and assessed his claims against Taiwan (Republic of China). The Tribunal also accepts this nationality for the purposes of assessing his refugee claims, and as the receiving country for the purposes of his complementary protection claims.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded”, or that it is for the reason claimed. Similarly, the fact that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal put to the applicant its concerns about his new claims, and his preparedness to rely upon an application to the Department containing false claims, and his credibility generally.
The applicant’s new claims of past harm/fears made at hearing – political expression and finances
The Tribunal asked the applicant what his claims related to; his responses were vague: he said that the political had an impact on his living, but that his claims do not relate to political; just the news report from the Chinese Communist Party and Taiwan government and some social comments and these sorts of things can have an impact on his living. The Tribunal asked if he had any concerns about going back to Taiwan, and whether there was any reason why he doesn’t want to go back. The applicant said he had a problem when he was leaving due to social comment and financial reasons.
The Tribunal asked what the financial problem was and he was said that his income was not very high. There is no other financial problem.
The Tribunal asked what the social comment problem was and he clarified that this was not social media/online, he meant that he had had discussions with colleagues at work where they expressed different political views and he believes that due to this he was not informed of certain meetings which led to difficulties with the client he was looking after and the client blamed him. The Tribunal asked for more detail and he said that he told his colleagues that he has travelled to China and that he saw good things such as construction and transport and human culture. He said in response his colleagues said it doesn’t matter how good the development is in China, as long as they have the same government in charge, they will still limit freedom and there will be violence in China. The applicant told the Tribunal that he had forgotten the rest of the conversation, but it involved cursing words.
When asked what he did within the company to resolve the situation, for example whether he had informed his bosses or supervisors, he said he told them about this but they think it is not a big issue so he should just leave it. The Tribunal asked whether he made a formal written complaint and he said no. He said that he resigned. When the Tribunal asked why he didn’t do anything more official he said they don’t have the environment to solve such a problem.

This evidence led to a number of concerns.
Firstly, the applicant changed his evidence about employee’s rights in Taiwan when country information was put to him, and the Tribunal considered that his evidence regarding the circumstances of his workplace situation was difficult to accept.
The Tribunal asked if he was suggesting that complaints cannot be made in the workplace in Taiwan and his response was vague: I don’t know I should engage with a certain department or there was not any specific situation. The Tribunal sought clarification, asking whether he was saying that there is no way a person can make a written complaint in workplaces in Taiwan, and he responded more or less like this. He then changed his evidence when the Tribunal put country information to him. It noted that although he claimed that there were effectively no processes for dealing with employee complaints in Taiwan, country information indicates that this is not the case. It noted that Taiwan is well-developed and employees have rights in Taiwan, and there are unions. There are formal processes (inside and out of the workplace), employee rights, employee benefits including employee assistance programs (offering mental health assistance and advice).[3]
[3] This is referred to further in Annexure B.
Although the applicant had earlier said that there were no such systems in place in Taiwan, he now agreed that there are, but said that the scale of his company is small and so instead of making a formal procedure, it is “more common” to just “have a verbal communication”. He suggested that to make a submission to a labour protection association, one needs forms and material approved by the company. The Tribunal noted that the applicant changed his claims about the workplace complaint situation in Taiwan in response to material put to him, which it considered undermined his credibility and his claims that no one can make a workplace complaint in Taiwan.
Further, the Tribunal put to him that there is no reason why he could not have taken formal action if he was unfairly dealt with, especially if the actions of others in excluding him from meetings resulted in a negative impact on a client of the company. He could have even written a letter to the boss. The applicant said he did not do anything. The Tribunal put to him that it may not accept his claims, noting that there are rights for employees. In response he said that big companies have advanced measures but he would not get a chance to work in a big company, his only chance would be to approach the media, but he would not have evidence to do so. This explanation was inconsistent with the country information discussed, and the Tribunal put to the applicant that it may not accept that he resigned from his job for the reasons claimed.
The Tribunal did not find the applicant’s evidence that he resigned from the company instead of taking steps to resolve the issue, in the circumstances, to be persuasive. He did not offer any substantive reason as to why he did not raise with the company in a more formal manner a matter that he claims was significant enough for him to resign from the company. The Tribunal’s concerns with the applicant’s evidence are heightened because when initially talking about this, he could not even recall the name of the company where he claimed to have worked and to have suffered harm; and he kept changing his evidence as to when he left the company (which he claims he had to do because of the harm he suffered at the company). Further, the applicant also claimed that he could not recall the rest of the conversation with these colleagues, which is difficult to accept if he was engaged in a conversation because of his actual political beliefs and this was the conversation that led to him suffering harm.
The Tribunal has concerns that the applicant was prepared to say there were no rights/ protections/processes for employees, and it was only when the Tribunal put to the applicant country information that in Taiwan there are processes that can be taken by employees, including that employees can make written complaints, he changed his evidence to admit this, but then he claimed this only applied in large companies. The country information does not indicate that this is the case and the Tribunal is not satisfied that this can explain why the applicant changed his evidence.
The Tribunal considered that the applicant’s evidence undermines his credibility and his claim that he suffered harm at work in Taiwan and could not get justice in this regard so he had to resign.
Secondly, the applicant’s claims at hearing that income was not very high were discussed; he claimed that he may not be able to get work if he returned to Taiwan, however this was difficult to accept.
The Tribunal put to him that he is educated, he has work experience in Taiwan and Australia, and there does not appear to be a reason why he would not be able to get work. The applicant indicated that he didn’t like the type of work he was doing in Taiwan (in a [Occupation 3] company); instead he prefers to do labouring work like he has been doing in Australia. He likes that the work is simpler and one doesn’t have to be on call outside of work hours. The Tribunal put to him that he could do labouring work in Taiwan; he responded that he tried that, he tried a [Industry 1] job before coming to Australia (for one month in February 2018) but he cannot afford to live on that salary.
The Tribunal put to him that it does not have evidence before it that people who earn a salary from doing [Industry 1] or similar jobs cannot afford to support themselves or are destitute. The applicant did not respond to this, except to say that when his mother was injured he paid for her treatment (from his work in Australia). He seemed to suggest that he would not be able to support such an expense if he did a labour type of job in Taiwan. The Tribunal put to him that his sister, who is working, could contribute to their mother’s treatment, he agreed and then changed his evidence as to who paid for his mother’s treatment: he said that his sister had also paid for their mother’s treatment, and she had also borrowed some money from a relative to pay for the treatment, and he had contributed.
The Tribunal is not satisfied that the applicant genuinely feared or fears that he will not be able to get a job with a reasonable salary in Taiwan, and it considers that his assertion in this regard undermines his credibility.
Thirdly, the applicant claimed at hearing that violence “can happen” if there are discussions about politics. However, he did not provide any satisfactory explanation as to why he believed this would happen to him.
When the Tribunal asked him what he would do if he went back to Taiwan, he said that he has not really thought about it, maybe he would open his own business but if there were discussions about politics this could lead to cursing, and violence can happen, even though violence did not happen to him before.
The Tribunal asked if he would express his opinion if he went back to Taiwan and he said yes. When the Tribunal asked what his political opinion is, he said he talks about the good and bad of China but people don’t like if he mentions the good about China. The Tribunal asked if that is his only political opinion and he said yes.
The Tribunal put to the applicant that people can have disputes at work and provide different political opinions to each other, and people can swear at each other, noting that this happens in Australia; this does not mean that different political opinions expressed at work could lead to violence. The Tribunal noted, and the applicant agreed, that in Taiwan some people support China and some people are opposed to China. The Tribunal put to him that it is difficult to accept that this means there would be violence towards him at work; it put to him that it does not have country information before it that would support this claim. Instead, the country information refers to freedom of expression in Taiwan.[4]
[4] USDOS Country Report on Human Rights 2022, Taiwan: The constitution provides for freedom of expression, including for members of the press, and other media, and Taiwan authorities generally respected this right. An independent press, an effective judiciary, and a functioning democratic political system combined to promote freedom of expression, including for members of the media….. Authorities did not restrict or disrupt access to the internet or censor online content, and there were no credible reports they monitored private online communications without appropriate legal authority
The Tribunal considered that the applicant was not able to explain why he would face a real chance or a real risk of violence in the workplace due to having a different political opinion, noting also he did not claim that this had occurred (or had even been threatened) in the past. The Tribunal is not satisfied that the applicant had or has a genuine fear of a real chance or a real risk of violence in the workplace for expressing a political opinion, and it considers that his assertion in this regard undermines his credibility.
Fourthly, although the applicant claimed that he suffered from depression as a result of these events, his evidence about this was inconsistent and difficult to accept. At hearing the applicant said that he felt better after he left the company and he rested at home. However, he later made a claim at hearing that he suffered from depression at that time. When asked about this, he said that he did not have a diagnosis of depression, a friend who is not medically qualified told him he might be depressed. He attended a medical clinic in Taiwan where he could have got drugs but he decided not to. The Tribunal asked if he had consulted a medical professional in the 5 years he had been in Australia and he said no.
The applicant’s post-hearing letter contradicted this evidence in two respects; in it, he claimed that the doctor (in Taiwan) told him that he had a diagnosis of depression (whereas he told the Tribunal he did not been diagnosed). Further, in his post-hearing letter the applicant said that medicine didn’t help (which indicates that he tried medication), whereas it was his evidence at hearing that he decided not to take medication at all. The Tribunal was concerned that his evidence concerning depression was changing, which undermined his claim of depression due to the claimed circumstances.
Fifthly, it is reasonable to expect that if the applicant had experienced past harm in the manner claimed at hearing, and if he held the fears claimed, he would have mentioned these in his application form. Instead, his protection visa application form relates to a fear of harm arising from a debt to and dealing with a loan shark, which claim the applicant disavowed before the Tribunal. The Tribunal discussed these concerns at hearing, and put to the applicant the provisions of s 423A of the Act.
When the Tribunal put to the applicant that his new claims were not provided to the Department or the Tribunal, he gave changing evidence about when he was aware that he was relying upon false claims, and when he understood new claims/submissions were notified. The Tribunal was also concerned with his assertion that he knew nothing about his initial claims.
Claim that a Malaysian man made up the applicant’s claims without the applicant’s knowledge: When the Tribunal put to the applicant that his claims at hearing are completely different to his claims in his protection visa application form, he said that he approached a Malaysian man whom he heard was good at writing these things and although the applicant told him about his claims, the Malaysian man must have instead written the loan shark claims. The Tribunal put to him that it did not make any sense that the Malaysian man would randomly make up claims that were different to the claims that the applicant was telling him. He responded that he charged the applicant more, so maybe that is why. The Tribunal does not find this to be a persuasive explanation. The Tribunal considers it unlikely that this would occur without any input or understanding of the applicant.
Claim that the Malaysian man disappeared and the applicant passed on the false claims to a solicitor to lodge without checking what he was handing over to the solicitor[5]: The applicant then said that the Malaysian man disappeared afterwards, so the applicant then consulted a solicitor and gave the false claims written by the Malaysian man to the solicitor to lodge on his behalf. The Tribunal put to the applicant that it does not make sense that, noting he is a university-educated person who speaks, reads and writes in English (as set out in his application form) and noting that had reason to be suspicious about the person who had written his claims (who had subsequently run away), that he now claims he approached a solicitor to assist him to lodge his application, but he did not even check what claims he was handing over to the solicitor, nor what claims or information was lodged on his behalf in his application form. In response he said that he was trying to get the application lodged. The Tribunal did not consider that the applicant’s response engaged with the concern. The Tribunal repeated its concern that he was claiming to have handed over to a solicitor, false claims to be lodged, without even checking them. The Tribunal said that it may not accept that he did not know that he gave false claims to a solicitor. He responded that his English was not very good.
[5] The applicant referred to this person as a solicitor but when asked f it was an agent or a solicitor, he said he did not know; this is discussed further later.
The Tribunal does not accept this explanation. The claims made on his behalf are, as stated above, completely different to the claims he gave at hearing. The applicant told the Tribunal that he had friends in Australia who he consulted for advice, and he had the claims in his possession (which he subsequently took to a solicitor for lodgement on his behalf). The Tribunal finds it difficult to accept that he did not know or actively enquire as to what claims were being made on his behalf.
Changing evidence as to when the applicant became aware that his initial claims were false, and claims of steps taken to advise of the correct claims: The applicant gave changing evidence as to when he became aware that the claims lodged on his behalf were false and what steps were then taken.
When the Tribunal asked if his protection visa application was true and correct, and he responded no, he said that “[Mr A]”, his solicitor or migration agent,[6] said he would “submit another application”. The applicant said [Mr A] was not attending the hearing today. The Tribunal noted that there was no one on record with the Department or Tribunal as his representative.
[6] He told the Tribunal that he did not know whether [Mr A] was a solicitor or migration agent, although after the Tribunal raised that there is a distinction, the applicant said he asked [Mr A] in the break and he is a solicitor. The Tribunal explained that the applicant did not have to tell the Tribunal any advice received from a solicitor on the basis of legal professional privilege.
The applicant initially told the Tribunal that he found out the claims were false when the application was before the Department; so “a new application” was submitted to the Department. He said that in 2018 they submitted an application and “after that” he saw some mistakes and he asked [Mr A] to “do the revision”. The Tribunal noted that there was no “revision” on the Department file. The Tribunal asked what the revision was about and he said the political part that impacted his life.
The applicant then said that he knew the claims were false in 2021 or 2022 and that is why he saw a solicitor. However, in 2021 or 2022, his case was no longer before the Department, as he submitted his application for review to the Tribunal in September 2019, and thus this claim was inconsistent with his initial evidence that he was aware the claims were false when the application was still before the Department. The Tribunal noted that there was no “revision” on the Tribunal file. Another inconsistency in this claim (that he knew the claims were false in 2021 or 2022 and that is why he saw a solicitor) arose because it was his earlier evidence that the reason he saw the solicitor was to submit the protection visa application after the Malaysian man ran away, and that this was at a time when he did not know the claims were false (in 2018).
This inconsistent evidence as to when he became aware of the false claims and when he understood the solicitor would submit the new, correct, claims (to either the Department or the Tribunal) was not clarified by the applicant’s post-hearing letter. In that letter he stated that the application was lodged with the Department when he was unaware it contained false claims; “later” he consulted an “agent” and “told him my situation” and “the agent” said he would “go to the Department and the AAT to clarify my case”. The letter suggests that the applicant had told the agent of the circumstances when the case was before the Tribunal; he did not explain why he had initially said he had discovered that false claims were submitted when the application was still before the Department.
The Tribunal is not satisfied that the applicant’s explanation is credible as to when he discovered that false claims were lodged on his behalf and when steps were taken to notify this. The Tribunal considers this undermines his credibility and his claim that he took steps to inform (the Department or the Tribunal) when he discovered that his claims were false.
The Tribunal’s concerns were heightened because the applicant changed his evidence about both what had been submitted, and whether the person assisting him was a solicitor or an agent. While there is no evidence that the applicant is legally qualified and the Tribunal would not ordinarily place weight on these matters, they did raise some small, additional, concerns when considered in light of the other credibility concerns:
· The applicant’s changing evidence as to what documents had been lodged to notify both the false claims, and the new claims: The applicant claimed he was conveying to the Tribunal what he had been told; however this kept changing. As noted above he initially said that a new (amended) application had been submitted. The Tribunal had informed him that nothing had been received (at the Department or the Tribunal) by way of amended application, and it suggested that he call [Mr A] in the break to discuss this and obtain further details. The applicant then said that he spoke to the solicitor [Mr A] in the break who said that “these materials” [had been submitted] and he will submit a new application and the solicitor’s “licence”. The Tribunal again put to the applicant that he cannot submit a new application at this stage of the proceedings. The applicant then said that the solicitor said he will submit amendments. The applicant then said that the solicitor said that he will submit new submissions. When the Tribunal had put to the applicant that both he and his solicitor had had a long time to lodge any amendments or submissions, the applicant said that the solicitor had shown him a “bundle of documents” so he thought that these had been submitted. The Tribunal confirmed that nothing had been submitted to the Tribunal apart from the application for review (and a copy of the delegate’s notification of refusal letter). The applicant has not specified what particular document(s) he claims had been lodged in order to notify that false claims had been made, and to inform of the new claims.
· Whether the applicant had engaged a solicitor or a migration agent: At the hearing the applicant claimed that he had telephoned [Mr A] in the break and had confirmed that [Mr A] was a solicitor, and not an agent. However, in his post-hearing letter he stated that he had previously told his situation to his “agent” who was going to clarify his case. While this I specific knowledge that an applicant may not know, the applicant himself had made the distinction at the hearing after he said he spoke to [Mr A]. A further concern with his claim about [Mr A] arose because, despite the applicant saying that he had spoken to [Mr A] in the hearing break on 10 October, in his letter 2 days later the applicant wrote to the Tribunal saying that he could no longer find his “agent”; indicating that his agent had now disappeared, and indicating that he is not able to produce any of the documents he claimed the agent had previously prepared for lodgement with the Department or Tribunal. While the Tribunal accepts that it is possible that [Mr A] had disappeared, when considering the above credibility concerns, the Tribunal does have some doubts that there has been a solicitor or agent, [Mr A], who has been falsely advising him about his case, who then disappeared.

The Tribunal put to the applicant that it may not accept that he knew nothing about the false claims at the time his application was lodged with the Department, and that he believed other claims had been lodged. This raises concern that he has been prepared to make false claims in his protection visa application form, and that none of his new claims were raised at the time because they may not be genuine claims. He responded that he understood the new claim (political impact) was lodged. The Tribunal is not prepared to accept this. It notes that the applicant has been provided with numerous reminders that he should present all relevant information and claims as soon as possible (as noted above) to both the Department and the Tribunal. The Tribunal is not satisfied that the applicant has provided a credible explanation as to why he has never submitted information to the either the Department or Tribunal as to his claimed actual claims[7]. It is not satisfied that a [Mr A] (or a Malaysian man) are the reasons why the applicant has not provided these new claims earlier.
[7] His post-hearing letter stated that this was written after concerns were raised at the hearing; he did not suggest it was a copy of what had previously been submitted.
The Tribunal has considered that in his Affidavit submitted to the FCFCA he had claimed that a (different) email address was his “own” email address (which may imply that he was using someone else’s email address, although he never made this specific claim to this Tribunal when it informed him on numerous occasions that the documents he claimed were being sent to the Department/Tribunal were not on the files). He had provided an application for review form to the Tribunal stating that the email address he gave to the Tribunal represented both his email address and his address for service, and he has written to the Tribunal from both email addresses, despite the Tribunal informing him that it has one address for correspondence and if he wishes to change this, he should complete the appropriate form. The Tribunal is not satisfied that two different email addresses is sufficient evidence that he was being advised by a solicitor/agent in the circumstances he has claimed (and the applicant himself did not suggest to the Tribunal that the email address he was using was that of an agent/ solicitor). Further, while the Tribunal has observed that a Justice of the Peace, “[Alias A]”, witnessed the applicant’s affidavit submitted to the FCFCA, the Tribunal is not satisfied that this is sufficient evidence that this is a person who had been falsely advising the applicant as claimed.
The Tribunal considers that the above undermines the applicant’s credibility and his claims that he was unaware that false claims had been submitted and maintained for the last 5 years on his behalf, and that when he did become aware, he had sought assistance to provide his new claims to the Department and/or the Tribunal.
Concerning s 423A of the Act, whereby the Tribunal is to draw an adverse inference towards claims or evidence that were not provided before the primary decision was made, if the applicant does not provide a reasonable explanation as to why these claims were not raised before the primary decision was made: The Tribunal is not satisfied with the explanations provided for the omission (of every new claim made by the applicant at hearing) from his protection visa application form. The applicant’s case has been ongoing since 2018. In that time he has managed to organise a variety of jobs to support himself and to travel and live in different locations, most recently moving this year to the city. He has managed to communicate online to his family to discuss cryptocurrency trading/investments, and he has various friends who give him advice. He has managed to survive in a new and different culture and country. It is not satisfied with his explanation that he had no knowledge of false claims and when he did, he informed an agent or a solicitor that the correct claims should be notified. At one stage he seems to suggest that he thought one could not access the claims made; however he did not suggest that he directly contacted the Department or the Tribunal to ask for a copy of his claims. The Tribunal does not accept the applicant’s reasons for not making these new claims before the primary decision was made. The Tribunal is therefore satisfied that the applicant does not have a reasonable explanation as to why these claims were not raised before the primary decision was made. Therefore, the Tribunal draws an adverse inference about these new claims made at hearing. Even if it did not draw an adverse inference by operation of s 423A of the Act, the Tribunal would, however, have drawn an adverse inference as to the credibility of these new claims because the applicant only made these claims to the Tribunal at the hearing, despite claiming that he was aware false claims had already been made on his behalf year(s) ago.
Sixthly, the Tribunal had concerns that the applicant provided inconsistent evidence about his new claims after the hearing. In this regard the applicant provided a post-hearing letter to the Tribunal on 12 October 2023. In this letter he provided additional detail of the claims he made at hearing that he suffered discrimination and bullying from his workmates. However, he has not explained why, when he was given the opportunity at hearing to provide these details, he did not do so. The new details include that his manager and colleagues considered him a “freak” and that he didn’t fit in because he refused to make fun of Chinese people; his colleagues argued with and humiliated him and called him a rebel; the leadership encouraged his colleagues behind his back and deliberately excluded him, he contacted human resources but they refused to help him; he left the company but his colleagues continued to bully him online; his former classmates and several relatives were involved and called him a traitor and said that he should not live in Taiwan. The Tribunal notes that not only did he not provide these details at hearing when he was asked about his new claims, but some of this post-hearing evidence is also inconsistent with his oral evidence. For example:
·     Contrary to the post-hearing letter, he did not say at hearing that it was his manager who was part of the harassment he had been suffering in the workplace, and he had the opportunity to provide this detail during the hearing, for example when the Tribunal had put to him that he had not written a letter to his manager and it did not understand why he had not done so. His response was not to say that his manager was also involved; rather his explanation was that the usual course of action in his company was to raise it verbally, he did so with his manager, who told him not to worry about it.
·     The Tribunal had, as set out above, asked the applicant about what steps he had taken within his company to seek help and he claimed that he didn’t know what department to contact. Further, he had claimed at hearing that there are no procedures for making workplace complaints in Taiwan. This evidence undermines that he approached the human resources department and they refused to help him (as set out in his post-hearing letter).
·     He told the Tribunal that he left the job in early 2018. The Tribunal asked whether anything else happened and he said that it got better after he left the company, and he just rested at home. This is inconsistent with the post-hearing letter where he states that the bullying continued after he left (and expanded to former classmates and relatives) and that his health deteriorated. The applicant has not explained in his post-hearing letter why this evidence was not provided at hearing although he was given the opportunity at hearing, and he had been specifically asked whether anything else had happened. The Tribunal considers that his post-hearing further details are inconsistent with his evidence at hearing, and he has provided no explanation of this.
Seventhly, the applicant made another claim about political discussions with friends at hearing which he suggested was the reason why he left Taiwan; this however was inconsistent with his claim that it was the specific workplace incident that made him leave Taiwan for Australia.
In this regard, when the Tribunal had asked the applicant if anything else happened in Taiwan, he said that he thought the situation with the government would become worse or exacerbate and his friend told him that he could apply for a visa as a refugee and so he came to Australia (in 2018). The Tribunal asked him whether the situation with the Taiwan government did get worse, and he said that the conflicts among political parties were getting intense and they would only say positive words during voting. The Tribunal asked how this affected him and he said he disagreed with friends when talking about political issues. The Tribunal asked if there was anything else or whether he had any other political involvement, he said no.
The applicant in his post-hearing letter stated that he came to Australia because he was depressed after the workplace incident (as he also said at hearing). The Tribunal considers that the applicant would give consistent reasons as to why he came to Australia (the workplace incident where he suffered due to political discussions with colleagues v conflict among Taiwan political parties led to political disagreements with his friends) if his claims were true. The Tribunal had further concerns with the claim that the workplace incident led him to come to Australia, because of his delay in leaving Taiwan. As put to the applicant at hearing, he had the ability to leave Taiwan almost immediately with an electronic visa; yet he showed no urgency in leaving. The applicant did not offer a satisfactory explanation as to why he did not leave earlier. The Tribunal considers that this delay undermines that he had any concerns or fears of harm when he was in Taiwan.
Further new claim at hearing – fear of war between China and Taiwan and adverse consequences for him, raised after the Tribunal had put concerns to him
The Tribunal was concerned that the applicant made a further new claim at hearing, after a break was given, despite having confirmed before the break that he had told the Tribunal all the reasons why he did not want to go back to Taiwan. His claims up to that point related to income and concerns about what happens if he makes positive comments about China when he is in the workplace in Taiwan (later he claimed concerns if he makes positive comments about China to friends).
As the applicant had been making new claims at hearing, the Tribunal asked him on numerous occasions if he could tell the Tribunal if anything else had happened to him in Taiwan or if he had anything else worrying or concerning him about returning to Taiwan. Just before the break the Tribunal checked again and he confirmed that nothing else had happened, and he had no other reason for fear or worry if he returned to Taiwan.
After the break the Tribunal asked him if there was anything further he wanted to say and he said no on 2 occasions. The Tribunal then raised with him its concerns with his new claims and put to him that, although the Tribunal had not made up its mind, if his claims are not accepted then it appeared that he did not face a real chance of serious harm or a real risk of significant harm.
The Tribunal was concerned that the applicant then made another new claim. He stated that it is not just about financial pressure or economy, he is worried about the war because of cross border relations. He said that this would cause him to lose his job and to be sent to the front line because he would just be an ordinary soldier as opposed to someone who has connections. He will be sacrificed. No one would have expected Russia and Ukraine, and Israel, so the possibility of war between China and Taiwan is very high.
The Tribunal put to him that this is the first time he has mentioned such a claim; it noted that the situation between China and Taiwan is longstanding, and if he believed that he would have faced harm for this reason, he could have mentioned this in his protection visa application form. The Tribunal asked why he did not do that and he said the war has not happened but it could happen at any time but he is not sure. He didn’t include it because he didn’t know if the war would happen. The Tribunal noted that if he was genuinely worried about a war, he could have left Taiwan at any time (noting that all he needed to come to Australia was an electronic visa).
Further, the Tribunal put to the applicant that he has had a whole hearing to tell the Tribunal this concern, but he only made this claim when the Tribunal put to him that, on the claims he had made, it did not appear that he would satisfy the criteria for a protection visa. In response he said that during the hearing the Tribunal mainly asked about his financial situation and that is why he only mentioned it now, when the Tribunal put to him that he could return to Taiwan. The Tribunal noted that this was not the case, it had given him numerous opportunities to tell the Tribunal everything that concerned him, the previous discussions were not “mainly about his financial situation”, and he made no reference to any war. The Tribunal asked if the applicant had a reasonable explanation for not mentioning these claims when he lodged his protection visa application and he said at that time it was mostly about the financial status of his family, but there is a possibility or probability of war which has also become more intense and the instruction on reunification. The Tribunal put to the applicant that it has been a high possibility in the past[8] yet he has never previously left Taiwan in the past. The Tribunal notes that the applicant did not suggest that any of his earlier evidence formed the basis of this new claim.
[8] For example on 28 February 2018 SPGlobal.com published China-Taiwan Cross Strait Relations, stating: “China’s relationship with Taiwan has deteriorated since President Tsai Ing-wen’s electoral victory in 2016… Deteriorating relations between China and Taiwan are highlighted by the steep drop in official diplomatic interactions since Tsai Ing-wen’s election. Both sides view the other side’s military build-up as a threat to their strategic interests, especially for China, which views the ability to dominate this region, which it regards as party of its natural sphere of influence, including assuring the free movement of its air, naval and commercial assets, as a strategic imperative. China’s ongoing military exercises near Taiwan increase Taiwan’s perception of a Chinese military threat. Although these exercises have historically been a regular occurrence, most notably the 1996 Chinese firing of missiles into the Taiwan Strait, resulting in military deployments by both Taiwan and the US, recent Chinese exercises have been significantly more provocative and more frequent. … In a report released in December 2017, the Ministry of National Defence (MND) explicitly designated China as the island’s biggest security threat, making specific reference to the increase in frequency of Chinese military activities. China’s air force carried out 14 military aircraft exercises close to Taiwan’s ADIZ from July to December 2017, compared to only two from January to June. On January 2018, Chinese aircraft carrier, the Liaoning, briefly entered the Taiwan ADIZ while sailing towards the South China Sea.
He said that he didn’t think about this previously when he was younger, but he did think about it after he had a working holiday in China. The Tribunal notes that he returned to Taiwan after that, and it put to him that he delayed in leaving Taiwan, even after he claimed to have had the workplace issue, die to which he left work (2017/ early 2018), yet he still did not leave Taiwan, until later in 2018.
The Tribunal has considered his explanation for failing to mention this claim in his protection visa application form, and while his application was before the Department, but it does not consider this is a reasonable explanation. As put to the applicant at hearing, the tensions between China and Taiwan are not new [there had been increasing tensions since the 2016 elections]; he delayed in leaving Taiwan despite having left his job, although he had the ability to leave straight away with an electronic visa if he had a genuine fear of harm. The Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claims of a future war between China and Taiwan, and its consequences, were not raised before the primary decision was made. Therefore, the Tribunal draws an adverse inference about this new claim made at hearing. Even if it did not draw an adverse inference by operation of s 423A of the Act, the Tribunal would, however, have drawn an adverse inference as to the credibility of this new claim because the applicant only made this claim to the Tribunal after he had said he had no other concerns about returning to Taiwan, and after the Tribunal put to him that the claims he had made at hearing did not appear to meet the criteria for a protection visa.
Having regard to the above, the Tribunal is not satisfied that the applicant is a credible witness in relation to the claims for protection made at any stage.
Other matters
The applicant’s request for further time: As noted above, the Tribunal said to the applicant at hearing that there were no amended documents/submissions on the Department or Tribunal file. Given his claim was (at one stage) that the documents existed and were with his solicitor whom he had just contacted in the break, the Tribunal decided it was appropriate to allow the applicant an opportunity to produce the documents he claimed had been previously prepared for lodgement. The Tribunal noted that there had already been a long period of time for the documents to have been provided, but it would agree to delay making its decision for a further 2 days to allow this solicitor to provide the submissions to the Tribunal (by 5 pm, 12 October 2023).
This did not, however, occur. The applicant wrote to the Tribunal on 12 October 2023 stating that his “agent” had effectively disappeared, he didn’t have the money to hire anyone else, so he could only provide “these materials” himself. He said that he would need 3 months to “collect and sort out the materials from Taiwan”, which he would then submit.
In response the Tribunal wrote to the applicant acknowledging his request, but noting that it did not agree to a period of 3 months, given that he has not explained what materials he proposed to provide, nor why he did not provide these materials (that he now has to locate in Taiwan) when he lodged his protection visa application in 2018. The Tribunal agreed to delay making a decision for a further 2 weeks until 5 pm, 27 October 2023, and stated that it would take into account any information and documents received before making a decision.
The Tribunal did not receive a response to this letter, some 10 days later.
The Tribunal has decided to proceed to making a decision without taking any further steps. The Tribunal, as noted above, has significant doubts that the applicant was being advised by a solicitor/agent off the record while his application has been before the Department and 2 different Tribunal members. Even if he had been effectively pursuing false claims for the last 5 years without knowledge of this (which the Tribunal is not prepared to accept), he was informed by the current Tribunal about 3 weeks ago that his request for a further 3 months was vague and without detail. He has not explained why he could not specify which documents he was seeking to provide from Taiwan, their relevance, and why he had not sought out or provided those documents in the last 5 years while his claims have been ongoing.

4 January, Taiwan had sharply criticised a decision by the Civil Aviation Administration Authority of China (CAAC) allowing the use of the M503 civil flight route, ostensibly to ease airspace congestion over southeast China. M503 runs near Taiwan’s airspace, and more importantly, its military bases. Taiwan’s defence ministry warned that its military would “warn, intercept and repel” any aircraft that enters Taiwanese airspace. The Taiwanese aviation regulator retaliated by denying two Chinese airlines extra Lunar New Year traffic rights on 19 January. On 31 January, China’s Eastern Airlines and Xiamen Airlines cancelled around 200 flights to Taiwan after they were unable to receive permits…. Confrontational political rhetoric between Beijing and Taipei has also intensified, with Chinese President Xi Jinping threatening during the 19th Party Congress in October 2017 that China “has the resolve, confidence and ability to thwart any attempt by Taiwan to declare independence”:

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Immigration
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Citations

2216260 (Refugee) [2023] AATA 4562

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20

[2023] AATA 4562

6 November 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies