1504343 (Refugee)

[2017] AATA 716

1504343 (Refugee) [2017] AATA 716 (24 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504343

COUNTRY OF REFERENCE:                  Taiwan

MEMBER:Sydelle Muling

DATE:24 April 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 24 April 2017 at 12:00pm

CATCHWORDS
Refugee – Protection visa – Taiwan – Debt with illegal bank – Previous violence from ex-boyfriend – Credibility issues

LEGISLATION
Migration Act 1958, ss 36(2)(a), (aa), (b), or (c), 65, 499,
Migration Regulations 1994, Schedule 2

CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Taiwan, applied for the visa [in] October 2013 and the delegate refused to grant the visa [in] March 2015.

3. The applicant appeared before the Tribunal on 20 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. 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 a protection 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 the applicant 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’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

9. The applicant claims to be a citizen of Taiwan who was born in Kaohsiung, Taiwan on [date]. According to her protection visa application, she resided in [name] district, [Taipei] City from 2000 to 2005 and in [name] Township, Changua City from 2005 to 2011. She attended school from [year] to [year] and is fluent in Mandarin and English. The applicant last arrived in Australia [in] October 2012 on a [temporary] visa. She had returned to Taiwan from Australia [in] June 2012.

10. The applicant presented her claims in her protection visa application [in] October 2013 (folios 1 to 30 of the Department file [number]) and at her Tribunal hearing on 20 April 2017.

11. The applicant claimed in her protection visa application that she left her country to seek a job so she can slowly pay back her debt. She claimed she had a large debt due to loss in her business. She had a business selling [certain items] from 2008 to 2011. Her boyfriend helped her with the money for all her business activities. She claimed when her business failed she faced a lot of problems with her boyfriend. He beat her many times and threatened to kill her if she did not pay him back. The applicant also claimed that she did not marry her boyfriend when things got bad, as she had initially agreed to. She claimed that her boyfriend was also involved in “gangsterism”. With all this torture, threatening and continuous harassment, she had no choice other than to leave him.

12. The applicant claimed she was tortured and beaten many times by her ex-boyfriend and his gang of people. A few times they came and harassed her in her house in front of her family members and said if she did not agree with his demands she cannot live safely there. This created fear and worry among her family members.  She claimed they reported the incidents but the police cannot guarantee her safety and security all the time. Her family were scared for her safety and always asked her to go to a far-away place.

13. The applicant claimed if she returns to Taiwan she has to face her ex-boyfriend and his gang members. Since she did not pay back or agree to his demands, she may suffer with their torture and harassment again, which may lead to her life being at risk. Her ex-boyfriend had even said that he would not hesitate to kill her for the problems he faced due to her. She claimed her boyfriend had borrowed a certain amount of money from others for her previously and was experiencing too much pressure from them too. She claimed if she goes back to her country she will face a terrible risk from her boyfriend and his members. He had made two reports that she had cheated money from him and had purportedly made it so she can get arrested. She also claimed that he wants to publicise her photograph in the newspaper and the incident of the arrest. The applicant claimed her photograph was circulated among the gangsters network and they have a large network throughout the country which can lead to her being spotted anywhere in the country. With all the stress and fear she cannot live peacefully.

14. The applicant claimed that she did not think the authorities in Taiwan can give her protection all the time. She claimed this kind of case is common and regularly happens in her country, as well as lots of murder cases, even though it was reported to the police. She queried how she could expect the police to keep her safe all the time when the problems are from an ex-close friend, which is difficult to identify.

15. The primary issue in this review is whether there is a real chance that, if the applicant returns to Taiwan, she will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Taiwan, there is a real risk that she will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.

16. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

17. The applicant travelled to Australia on a valid Taiwanese passport and states that she is a national of Taiwan. Therefore the Tribunal has assessed the applicant’s claims against Taiwan as her country of nationality and her receiving country for the purposes of complementary protection.

18. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    ….care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

19. In the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, the High Court also made comments on the correct approach to determining findings on credibility. Kirby J said at 39:

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

    With these points in mind the Tribunal now turns to an assessment of the applicant’s claims.

20. The applicant claimed in the hearing, when asked why she fears returning to Taiwan, that the first time she was in Australia she thought that after a year everything would be okay but when she went back to Taiwan, she found everything was worse. She claimed that when she was working as [occupation] in a [workplace] she opened a shop and her ex-boyfriend was helping her. The shop was not really good and they owed more and more money. It was at that time she found out her ex-boyfriend borrowed money for her from an illegal underground bank. People started coming after her because of the money and her ex-boyfriend also started beating her. She stated that she ran away from her ex-boyfriend but then she discovered the “bad guys” were coming after her. The Tribunal asked the applicant who she believes will harm her if she returns to Taiwan now. The applicant stated the second time she went to Taiwan they said they would catch her to pay back the money she owes. The Tribunal repeated the question. She claimed that she did not know where they are coming from but they should be the guys from the underground bank, about [number] guys. The Tribunal asked the applicant why these people would want to harm her now. She stated because she owes them money.

21. The Tribunal does not accept the applicant’s claims are credible for the following reasons.

22. The Tribunal notes that the nature of the applicant’s claims regarding the problems she allegedly experienced in Taiwan has changed from what she originally claimed in her protection visa application (and which she confirmed in the hearing was true and correct). In the applicant’s protection visa application she claimed that her ex-boyfriend helped her with the money for all her business activities and that when her business failed she faced a lot of problems from her ex-boyfriend, who beat her many times and threatened to kill her if she did not pay him back the money. The applicant’s evidence was that she feared harm from her ex-boyfriend and his gang members, as opposed to people from an underground bank, whom she identified in the hearing as the people she feared harm from on her return to Taiwan.

23. Further, the applicant’s evidence in the hearing, regarding what happened to her in Taiwan, was significant different to what she claimed in her protection visa application. In the hearing, when asked about the problems she experienced in Taiwan, the applicant stated that two strong and really big men came to her shop in October 2010 and asked her when she was going to return the money back. She stated that she told them she would ask her ex-boyfriend to deal with this and the men yelled at her saying that it has been so long and she had to pay it back now. Her evidence was that these people came to her shop once every one to two weeks and they would throw things. When asked if they did anything else, she stated that they made some threats to burn down her shop, chop of her finger and kill her. The Tribunal asked the applicant how she received these threats. She stated she was hiding because she was so afraid. All of this her staff told her.  The applicant’s evidence was that she did not have any contact with the people her ex-boyfriend allegedly borrowed money from, apart from the one occasion in October 2010 when they came to her shop and asked her to pay the [amount] TWD.

24. The applicant claimed that it was also in October 2010 that her ex-boyfriend beat her. She explained that after these people came to the shop and asked her to pay the money, she went home and asked her ex-boyfriend about this and that was when he started to beat her because they had a big argument. When asked what her ex-boyfriend did to her, she stated that he grabbed her and threw her. She confirmed this was the first time her ex-boyfriend had allegedly been violent towards her. The applicant claimed after this they kept fighting and then she moved out. When asked what she meant when she stated that they kept fighting, the applicant stated whenever she had the chance she would ask her ex-boyfriend why he borrowed such a large amount of money and they had arguments. When asked if anything else happened apart from the arguments, the applicant stated she moved back to the [workplace] hostel.

25. However, in her protection visa application the applicant claimed that her ex-boyfriend beat her many times and threatened to kill her. Additionally, her ex-boyfriend’s gang of people tortured and beat her many times. She claimed that she was subjected to torture, threatening and continuous harassment from her ex-boyfriend and his gang members. The applicant also claimed in her protection visa application that a few times her ex-boyfriend and his gang members came and harassed her in her house in front of her family members and said if she did not agree with her ex-boyfriend’s demands she cannot live safely there. The Tribunal finds the discrepancies in the applicant’s evidence in the hearing regarding the alleged harm she was subjected to in Taiwan, as compared to her protection visa application, significant and for this reason, is satisfied that she did not experience any problems from either her ex-boyfriend, his gang members or people associated with any underground bank, as a result of money she allegedly owed. While the applicant subsequently claimed in the hearing that her boyfriend had beaten her several times during 2010, after the Tribunal raised with her the inconsistencies in her evidence regarding the harm she was allegedly subjected to by her ex-boyfriend, the Tribunal is concerned that this was only after this was specifically put to her. Given the applicant did not raise these several beatings when questioned about the fights she claimed to have had with her ex-boyfriend, the Tribunal does not accept the applicant was beaten several times by her ex-boyfriend during 2010. In light of the differences in the applicant’s evidence in the hearing, as compared to her protection visa application, in respect of the nature of the harm she was allegedly subjected to in Taiwan, the Tribunal does not accept the applicant was beaten, threatened, tortured or harassed by anyone, particularly her ex-boyfriend, his gang members or people associated with the underground bank her ex-boyfriend allegedly borrowed money from.

26. The applicant also failed to raise anything during the hearing regarding her ex-boyfriend allegedly making two reports that she had cheated money from him so that she could be arrested or that he wants to publicise her photograph in the newspaper and her arrest, as she claimed in her protection visa application. The Tribunal does not accept that if the applicant’s ex-boyfriend and had made these reports, assumedly to the police, that the applicant would not mention this during the hearing.

27. The Tribunal found significant aspects of the applicant’s evidence to be vague and unconvincing. The Tribunal notes when asked the name of the boyfriend who allegedly set up this business and borrowed large amounts of money for her, the applicant faltered before providing his name. The Tribunal finds it implausible that the applicant would hesitate, as she did, if she had been living with this person and was planning to marry him, as she claimed in the hearing. The Tribunal also notes, as it did in the hearing, that despite claiming to have lived with her ex-boyfriend for several months from mid-2010 until January 2011, the applicant provided only one address in Changua City which was the [workplace] Hostel, where she resided from 2005 to 2011. The Tribunal does not accept the applicant’s explanation that she and her ex-boyfriend moved to two or three places during the time they lived together and she could not remember. The Tribunal finds the applicant’s tentativeness when providing the name of her ex-boyfriend, together with the information in her protection visa application regarding her residence at the [workplace] hostel from 2005, when she moved to Changua City to take up this position, until 2011, presumably when she departed the country given she was working until then, raises serious doubts that she was in a relationship as claimed.

28. The Tribunal also found the applicant’s very limited evidence about her alleged business raises serious doubts about her claims that she owned a business in a Taiwan. The applicant’s evidence was that she opened a shop but because she did not know how to organise a shop, all matters were handled by her ex-boyfriend. She stated if she had had time during the day she would go and have a look. The Tribunal asked the applicant what her ex-boyfriend actually did to set up this business for her. The applicant stated she did not know. The Tribunal finds it implausible that the applicant would have no knowledge at all of what her ex-boyfriend allegedly did to set up a business which she claimed was hers. Further, while claiming it was a shop that sold [certain items], the applicant was unable to tell the Tribunal where she obtained the stock, other than it came from [country]. The Tribunal finds the applicant’s evidence regarding her alleged business to be unconvincing and inadequate and does not accept that she owned or ran any business in Taiwan. 

29. In respect of the money that was allegedly borrowed for this business, the Tribunal found the applicant’s evidence in the hearing to be inconsistent. Initially she claimed that she had no knowledge of the very large amounts of money her ex-boyfriend allegedly borrowed in the middle of September 2008 (as she claimed in the hearing), until people came to her about it in October 2010. However, later in the hearing, when asked why these people were pursuing her for the money if her ex-boyfriend had borrowed it, she claimed that she had actually signed the documents for the loan. She explained that her ex-boyfriend had told her they needed to borrow money to buy more stock for the business and that she had to sign the documents. The Tribunal does not accept that if the applicant had signed documents borrowing [amount] TWD that she would have no awareness of this alleged loan until only two years later in October 2010 when people allegedly came pursuing payment of the loan. When the Tribunal put this discrepancy in her evidence to the applicant, she stated that she knew her ex-boyfriend was borrowing money but she thought he borrowed once and paid back once and borrowed again and paid back. The Tribunal finds this is also inconsistent with the applicant’s initial evidence that she only learnt that her ex-boyfriend borrowed the money in October 2010.

1. The applicant also provided inconsistent evidence regarding what allegedly happened when she returned to Taiwan from Australia in June 2012. The applicant initially claimed at the beginning of the hearing, when asked who she believes will harm her if she returns to Taiwan now, that the second time she went to Taiwan they said they would catch her to pay back the money she owes. However, later in the hearing, when the Tribunal asked the applicant if anything happened when she returned to Taiwan from Australia in June 2012, the applicant stated she stayed with her [sibling] and later with friends in Taipei City for the three months and she had no contact with these unidentified people or her ex-boyfriend.

2. The applicant also claimed in the hearing that sometimes these people went to her parents  place after she left the country (as opposed to when she was there, as claimed in her protection visa application, where she claimed they came a few times and harassed her in front of her family). However, when asked about these alleged visits, the applicant stated that her parents did not tell her that these people had come to their place. They only told her not to come back home. When the Tribunal queried whether she was just speculating, she subsequently claimed her [other sibling] told her these people had gone to her parents place but did not tell her when. When asked if her [other sibling] told her what happened when they went to her parents’ home, she claimed her [other sibling] only told her they had been there and did not tell her any detail. The Tribunal finds the applicant’s claims regarding these alleged visits to her parents’ home to be vague and unconvincing.

3. Based on the above, the Tribunal does not accept that the applicant opened a business in Taiwan in 2008. It does not accept the applicant had an ex-boyfriend, whom she had initially agreed to marry, who helped her with money for all her business activities and when her business failed she faced lots of problems from him including being beaten many times and threatened by him. The Tribunal also does not accept that in addition to being beaten and tortured by her ex-boyfriend, she was beaten and tortured by his gang members and her ex-boyfriend and his gang members came to her home and harassed her in front of her family members. It does not accept that the applicant reported any of these alleged incidents to the police and the police told her that they could not guarantee her safety and security. Nor does the Tribunal accept that the applicant’s ex-boyfriend made two reports that she had cheated money from him so that she can be arrested or that he had circulated her photograph among the gangster network so she can be spotted anywhere in the country. 

4. Similarly, given the Tribunal does not accept the applicant’s claims are credible for the reasons provided above, and therefore does not accept that the applicant opened any business in Taiwan, it does not accept that the applicant’s ex-boyfriend borrowed money from an underground bank for her and that she owes this underground bank. It does not accept that she was visited by two strong big men in October 2010 who told her she had to return the money. Nor does it accept at this time, when she discussed this with her ex-boyfriend he beat her. The Tribunal does not accept the applicant was beaten several times during 2010 by her ex-boyfriend or that these people associated with the underground bank visited her business when she was not there and threatened to burn it down, chop her finger off or kill her or that they would come every one to two weeks, again when she was not there, and throw things around.

5. The Tribunal also does not accept the applicant’s claims that after she moved out of the house she shared with her ex-boyfriend in January 2011, he tried calling her but she did not answer. Nor does it accept that they met each other once in March and once in May. The Tribunal notes that when asked why they met, she said that she went to buy some groceries and ran into him. However, she subsequently claimed he was looking for her. When asked why her ex-boyfriend would be looking for her, she stated that she found out from a friend that he was one of these “bully guys” and that this was all a trap and her ex-boyfriend was connected to the underground bank. Given the Tribunal’s concerns regarding the applicant’s credibility generally and those of her claims regarding this alleged business, the Tribunal does not accept the applicant’s claims regarding her ex-boyfriend’s alleged association with the underground bank that he allegedly borrowed money from for her.

6. As the Tribunal does not accept that the applicant ran into her ex-boyfriend as she claimed on two occasions, it does not accept her evidence in the hearing that during these occasions her ex-boyfriend tried to grab her to take her so she could pay the money back but she yelled and there were police passing by so he got scared and ran way. Nor does the Tribunal accept that at the time of this alleged incident in March, the applicant told the police, when she met her boyfriend and they let him go, that people were threatening her and the police told her she would have to deal with it because they could not protect her forever.

7. The Tribunal does not accept that the applicant spent any time in hiding as she claimed in the hearing. As discussed above, the applicant provided only the one address in her protection visa application, where she resided from 2005 to 2011, which was the [workplace] hostel in Changua City. Further, the Tribunal does not accept the applicant’s alleged return to the premises she had been living prior to allegedly moving in with her ex-boyfriend and the continuation of her employment at the [workplace] until she departed the country, is consistent with being in hiding. While the applicant claimed that she reduced her work hours and also moved from the front desk to a different position within the [workplace], the Tribunal does not accept that the applicant was in hiding as she claimed.

8. As the Tribunal does not accept the applicant the applicant’s claims are credible, it does not accept that after the applicant left Taiwan these people have gone to the [workplace] and her parents’ house looking for her. The Tribunal also does not accept, based on the inconsistencies in the applicant’s evidence as discussed above, that when the applicant returned to Taiwan from Australia in June 2012 that she was warned they would catch her to pay the money back that she allegedly owes.

9. Given the Tribunal does not accept the applicant’s claims are credible and does not accept that she had a business in Taiwan or owes anyone in respect of money borrowed either by her or her ex-boyfriend for this alleged business, including her ex-boyfriend or an underground bank money, it does not accept that if she returns to Taiwan now, she faces serious harm, including torture and harassment, from her ex-boyfriend and his gang members or from people from the underground bank which her ex-boyfriend allegedly borrowed money from.  As such, the Tribunal does not accept that the applicant faces a real chance of serious harm on her return to Taiwan , now or in the reasonably foreseeable future, from her ex-boyfriend or his gang members, people from the underground bank or the underground bank or anyone else because she allegedly owes them money. The Tribunal therefore finds that the applicant does not face a well-founded fear of persecution.

10. Nor does the Tribunal accept, based on the findings and reasons above, that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Taiwan, there is a real risk that the applicant will suffer significant harm from her ex-boyfriend, his gang members or the underground bank or people associated with the underground bank because of money the applicant allegedly owes. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

11. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

12. 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).

13. 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

14. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Sydelle Muling
    Senior Member