1836113 (Refugee) [2024] AATA 2332 (13 June 2024)

Last Updated: 10 July 2024

1836113 (Refugee) [2024] AATA 2332 (13 June 2024)

DECISION RECORD

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Mr Stanley Chan (MARN: 0430097)

CASE NUMBER: 1836113

COUNTRY OF REFERENCE: Taiwan

MEMBER: Noelle Hossen

DATE: 13 June 2024

PLACE OF DECISION: Perth

DECISION: The Tribunal affirms the decision not to grant the applicant a protection visa.


Statement made on 13 June 2024 at 10:43am

CATCHWORDS
REFUGEE – protection visa – Taiwan – borrowed money for mother’s medical treatment – parents threatened and their possessions smashed – collusion between bank, gangs and police – applicant sent to another country for safety and now citizen there – no right to enter and reside in country of birth – consent to decision without hearing – insufficiently detailed and unsubstantiated claims – no evidence of attempts to repay or continued threats – visa, travel and residence history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (3), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam [1992] FCA 470; (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 dependants.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 November 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant who claims to be a citizen of Taiwan, applied for the visa on 7 November 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
3. The applicant was represented in relation to the review.

CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
7. Under s 5J (1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J (2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
8. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

Before the Department

10. The applicant applied for Protection on the 7 November 2017 and in her application for protection claimed that she needed protection because:

She was persecuted by the government of Taiwan and [Country] because she was unable to repay money to an “underground bank.”

She said that she borrowed the money for her mother’s medical treatment as she needed to have an operation. She borrowed the money even though the interest was very high as she felt that she had no choice.

She said that her mother had telephoned her as the underground bank had sent people to her parent’s home to collect the money. They smashed her parents’ possession and threatened her parents. Her parents were concerned for her safety, so they sent her to Taiwan. She said that they did send people to monitor her parent’s home and continued to threaten them.

She said that her friend had told her that the “gangdom” was the protective umbrella of the underground bank and that they also colluded with police. She decided to write a public letter to distribute so as to get some help from society but that seemed to upset the gangdom, so they sent people to catch her, and she was so scared that she escaped from Taiwan and fled to Australia.

11. The delegate initially made a finding that her application filed 7 November 2017 was not valid. The Department assessed her claim as she was born in [Country] and moved to Taiwan in 2003.The assessment was done pursuant to s91 P to ascertain her citizenship as it was thought that she was a dual citizen of both countries. However, the Department found that she was a citizen of the Republic of China (Taiwan).
12. On the 23 November 2018 a delegate of the Department refused to grant the applicant a protection visa.
13. In the Decision of the Delegate a summary:

26/04/2013 TZ417 Working Holiday Visa Application lodged offshore.

2/05/2013 TZ417 Working Holiday Visa granted offshore.

[07]/2013 Arrived in Australia on TZ417 Working Holiday Visa expiry date [07]/2014.

13/05/2014 TZ417 Working Holiday visa (extension) application lodged.

13/05/2014 Bridging Visa A granted, expiry date:15/07/2014.

[07]/2014 Departed Australia as holder of TZ417 working Holiday visa.

15/07/2014 TZ417 Working Holiday Visa (extension) granted, expiry date 12/07/2015.

15/07/2015 UD 601 Electronic Travel Authority (ETA) visa granted.

[09]/2015 Arrived in Australia as holder of UD 601 Electronic Travel Authority (ETA) visa.

6/10/2015 UD 601 Electronic Travel Authority (ETA) visa cancelled s128 Holder outside of Australia.

10/12/2015 TU570 Student Visa application lodged offshore.

4/01/2016 TU570 Student Visa granted offshore.

[02]/2016 Arrived in Australia as holder of TU 570 Student Visa expiry date 15/11/2017.

7/11/2017 XA 866(first) Permanent Protection Visa lodged

Before the Tribunal.

14. The applicant applied for a review of the Decision of the delegate on the 9 December 2018 and provided a copy of the delegate’s Decision record with her review application.
15. On the 24 May 2024 the Tribunal wrote to the applicant’s authorised recipient nominated email address advising her that it had considered the material before it but was unable to make a favourable decision on the material alone, and inviting her to a hearing before the Tribunal scheduled for the 18 June 2024 at 9.30 am. The applicant was invited to provide a hearing Response and further submissions before the 11 June 2024. The applicant did not respond and did not provide a copy of a completed response form prior to the 11 June 2024.
16. On the 11 June 2024 the Tribunal wrote to the applicant by email to remind her through her authorised representative that she should file a hearing response.
17. On the 11 June 2024 the applicant through her authorised representative advised that she did not intend to attend the hearing and that she wanted the matter dealt with on the Papers.
18. The review applicant did complete the Tribunal’s Response to hearing Invitation form to respond to the hearing invitation.
19. Since lodging the review application, the applicant has not provided any additional evidence or information in support of her review application or her claims for protection.

Receiving country and identity

20. The applicant claims to be a citizen of Republic of China (Taiwan). She provided the department with a copy of the biodata page of her passport. The delegate was satisfied of the applicant’s identity and the authenticity of her passport. In the absence of any evidence to the contrary and for the purposes of this decision the Tribunal is satisfied that the applicant is a citizen of Republic of China (Taiwan), and that Taiwan is her receiving country.
21. The applicant had made claims in her Protection Visa application relating to both [Country] and Taiwan. The applicant claimed that she was born in [Country]. Her current Passport lists this country as her place of birth.
22. The applicant claimed in her protection application that she resided in Taiwan from January 2003 until June 2013.She arrived in Australia in July 2013 for the first time. She returned to Taiwan in July 2015 and lived there until February 2016. She acquired citizenship in Taiwan in January 2003 and does not hold citizenship of any other country.
23. The Department relied on an article published on the Taiwanese website on 1 April 2013 which provided information regarding obtaining Taiwanese citizenship:

The main obstacle for many foreigners in Taiwan is applying for and getting Taiwanese citizenship is that at the beginning of the process you are required to renounce your original citizenship before you can continue with the application process^[1]

24. The Department concluded that the applicant would have been required to renounce her [Country] citizenship. She provided no documentary evidence to indicate that she held any residency rights in any other country. She does not claim to be a national of any other country other than Taiwan.
25. The Tribunal accepts the evidence and finds that based on the evidence before the Tribunal the applicant does not have a right to enter and reside in a country other than Taiwan. The Tribunal accepts that s36(3) of the Act does not apply to the applicant.

Evidence before the Tribunal.

26. The Tribunal finds that the applicant has provided insufficient detail about her claims and the harm she fears in Taiwan and that she is a person in respect of whom Australia has protection obligations. The information set out in her application is vague, general, and lacking in specific detail. On the limited evidence before it, the Tribunal does not accept that she borrowed money from an” underground bank “and that she will suffer harm if she returns to Taiwan. It is not clear when the money was borrowed and whether it was before she travelled to Australia on a working holiday visa or on the student visa. The applicant lived in Taiwan since 2003 and came to Australia in 2013. She has provided no documents to prove that the money was borrowed. She did not state when the money was borrowed and how much. She did not update her evidence and there is no evidence regarding her attempts to repay the funds or that her parents have continued to be threatened whilst she has lived in Australia. She has not lived in Taiwan for a very long time.
27. The Tribunal does not accept that she will be persecuted in Taiwan and will be harmed by the “gangdom” or the underground bank on return to Taiwan. The Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm now or in the reasonably foreseeable future on return to Taiwan for the reasons she claims or for any other reasons.

Applicant’s Refugee claim

28. The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is for the reason claimed or that it is well-founded. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. 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/ herself in as much detail as is necessary to enable the decision maker to establish the relevant facts. The decision maker is not required to make the applicant’s case him/her. Nor is the Tribunal required to accept uncritically all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam [1992] FCA 470; (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 16970).
29. In this case the applicant’s claims are made in the most general terms, and they are unsubstantiated. She has not filed any documentary evidence with the Department or the Tribunal to support her claims. As she did not wish to attend the further hearing before the Tribunal which was listed for 18 June 2024 and subsequently requested that a decision be made on the papers, the Tribunal was unable to obtain further details of his claims and to test their veracity.
30. The applicant claims that she was persecuted, her parents were threatened, her parents goods were smashed and that persons were sent to Taiwan to catch her for not meeting their demands for repayment of the debts. The Tribunal does not accept that the applicant borrowed funds from an underground bank and could not make the repayments and finds that the evidence contained in her Protection Application is false, therefore the Tribunal is not satisfied that the applicant left Taiwan for the reasons claimed or that she fears returning to Taiwan for the reasons claimed.
31. On the evidence before it, the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm to the applicant, for any of the reasons claimed if she returns to Taiwan now or in the reasonably foreseeable future.
32. On the limited evidence before it and in view of the above findings, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of her race, religion, nationality, membership of a particular social group or political opinion, or any other reason as set out in section 5J(1) (a) of the Act, and that there is a real chance that she would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of Taiwan. Therefore, she does not meet the definition of refugee as set out in section 5H of the Act. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36 (2) (a) of the Act.

Complementary Protection criterion

33. As the Tribunal has found that the applicant does not meet the refugee criterion in section 36 (2) (a) of the Act the Tribunal has considered whether she may nevertheless meet the criterion for the grant of a protection Visa pursuant to the complementary protection criterion.
34. The Tribunal accordingly does not accept that the applicant faces a real risk of significant harm, as a necessary and foreseeable consequence of being removed from Australia to Taiwan, that will amount to significant harm, including being subjected to cruel or inhuman treatment or punishment or being subject to degrading treatment or punishment.
35. At no stage of the applicant advance any other reason in her claims that she is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims including based on the applicant’s accepted circumstances, to be considered.
36. On the limited evidence before it and in view of the above findings, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk that she will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36 (2) (aa) of

CONCLUDING PARAGRAPHS

37. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
38. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2) (aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa)
39. : There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

DECISION

40. The Tribunal affirms the decision not to grant the applicant a protection visa.

Noelle Hossen
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

...

cruel or inhuman treatment or punishment means an act or omission by which:

(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c) that is not inconsistent with Article 7 of the Covenant; or

(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or

(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a) for the purpose of obtaining from the person or from a third person information or a confession; or

(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c) for the purpose of intimidating or coercing the person or a third person; or

(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

...

5H Meaning of refugee

(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note: For the meaning of well-founded fear of persecution, see section 5J.

...

5J Meaning of well-founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c) the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b) conceal an innate or immutable characteristic of the person; or

(c) without limiting paragraph (a) or (b), require the person to do any of the following:

(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii) conceal his or her true race, ethnicity, nationality or country of origin;

(iii) alter his or her political beliefs or conceal his or her true political beliefs;

(iv) conceal a physical, psychological or intellectual disability;

(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b) the persecution must involve serious harm to the person; and

(c) the persecution must involve systematic and discriminatory conduct.

(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a) a threat to the person’s life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill‑treatment of the person;

(d) significant economic hardship that threatens the person’s capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6) In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b) disregard any fear of persecution, or any persecution, that:

(i) the first person has ever experienced; or

(ii) any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a) a characteristic is shared by each member of the group; and

(b) the person shares, or is perceived as sharing, the characteristic; and

(c) any of the following apply:

(i) the characteristic is an innate or immutable characteristic;

(ii) the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii) the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures

(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a) protection against persecution could be provided to the person by:

(i) the relevant State; or

(ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a) the person can access the protection; and

(b) the protection is durable; and

(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

...

36 Protection visas – criteria provided for by this Act

...

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa of the same class as that applied for by the applicant.

(2A) A non‑citizen will suffer significant harm if:

(a) the non‑citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non‑citizen; or

(c) the non‑citizen will be subjected to torture; or

(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non‑citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

...

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^[1] Turning Taiwanese A step by step guide to acquiring Taiwanese citizenship Taiwanese 1 April 2013.