1505972 (Refugee)

[2017] AATA 223

1505972 (Refugee) [2017] AATA 223 (6 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505972

COUNTRY OF REFERENCE:                  Taiwan

MEMBER:Susan Pinto

DATE:6 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 06 February 2017 at 11:09am

CATCHWORDS

Refugee – Protection Visa – Taiwan – Fears of harm from moneylenders – Credibility – Inconsistent evidence - Fabrication of evidence to remain in Australia for employment – Delay in protection application

LEGISLATION

Migration Act 1958, ss 36(2)(a) - 36(2)(c), 65, subsection 5(1)

Migration Regulations 1994, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of Taiwan who is aged in his early [age]. He arrived in Australia on [Visa 1] [in] November 2012.  [Visa 1] was valid until [date] November 2013. [In] July 2013 he was granted a further [Visa 1] which was valid until [date] November 2014.

2. The applicant applied to the Department of Immigration for the Protection visa [in] November 2014. The applicant claimed that he has been pursued by debt collectors due to his father’s debts. He claims that he has been assaulted and harmed and fears further harm if he returns to Taiwan.

3. The delegate of the Minister for Immigration refused to grant the Protection visa [in] April 2015. The delegate did not accept any of the applicant’s claims and found that they had been fabricated in an attempt to remain in Australia for the purposes of employment. 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).

4. A summary of the relevant law is set out in an attachment to this decision. The issues in this review are whether the applicant has a well founded fear of persecution in Taiwan for one or more of the five reasons set out in the Refugees Convention. If the Tribunal is not satisfied that the applicant meets the Refugees Convention it must consider whether he meets the Complementary Protection provisions which require the Tribunal to be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Taiwan, there is a real risk that he will suffer significant harm.

   CLAIMS AND EVIDENCE

   Application to the Department

5. When lodging the application to the Department, the applicant indicated that he speaks, reads and writes Mandarin. He indicated on the application form that his parents reside in Taiwan. He gave no details of any siblings or his marital status.

6. The applicant stated on the application form that he left Taiwan to avoid persecution by financial creditors and debt collectors. He stated that he has experienced intimidation, continued harassment and he has been forced to change jobs and addresses whilst he was in Taiwan. He also stated that he has been abused mentally and physically and he fears for his safety.

7. The applicant stated that he fears harm from his father, creditors and debt collectors. He stated that he and his [sibling] have suffered family violence constantly because his father is a violent person. He states that even the police were not able to stop him being violent towards them when they were children. After he completed school he left his father, but he continuously came to his place for money because he has many unpaid debts. The applicant states that his father would abuse him physically when he did not give him any money. He states that he often asks the creditors or debt collectors to collect the money from him when he was unable to pay them the money he owed. The creditors and debt collectors have constantly come to the applicant’s workplace and home to harass him and attack him for the purposes of collecting debts from his father. The applicant has been harmed on every occasion when his father or the debt collectors visited him.

8. The applicant was interviewed by the delegate [in] April 2015. The Tribunal has listened to the CD Rom recording of the interview.

   Application for review

9. When lodging the application to the Tribunal the applicant provided a copy of the delegate’s decision record.

10. The applicant appeared before the Tribunal on 2 February 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

    Does the applicant have a well founded fear of persecution for one of five Convention reasons?

11. The Tribunal must consider whether the applicant has a well founded fear of persecution for a Convention reason. As indicated above, the applicant has essentially claimed that as a result of debts owed by his father that gang members have been seeking to harm him for several years, and if he returns to Taiwan he will be sought and harmed by creditors and debt collectors.

12. Having considered all of the evidence, the Tribunal does not accept any of the applicant’s claims. The Tribunal does not accept that the applicant is a credible witness and considers that he has manufactured the entirety of his claims regarding his experiences in Taiwan and his reasons for seeking Australia’s protection. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

13. The Tribunal firstly considers that the applicant’s evidence in relation to his marital status, whilst not directly relevant to the applicant’s claims, is indicative of his poor credibility. As indicated above, the applicant gave no details on the application form regarding his marital status. However, the Department’s decision record indicates that when the applicant was asked by the delegate during the interview whether he was married, he stated that he was separated and he had married his wife in China but the relationship failed. He also said that he had never divorced his wife. When advised that he had indicated on the application form for the two [Visa 1] applications that he is married, the applicant stated that there were limited options on the form to accurately reflect his marital status. He also stated that he had travelled to mainland China to meet his wife and they had married soon after they met each other.

14. When asked during the Tribunal hearing about his marital status the applicant stated that he is unmarried. When advised that he indicated on the [Visa 1] application forms that he was married, the applicant stated that he was told by a friend that it would be easier to get a visa if he said he was married. In response to the Tribunal’s queries as to why he would provide false information to the Department on an application form, the applicant stated that he had not made a promise to tell the truth when he completed the application forms. When the Tribunal advised the applicant that he had told the delegate during the interview that he was married to a woman from Fujian, he then stated that he has been telling “lies” and he was married to a woman from Fujian. The applicant stated that his financial situation was poor and he went to Fujian to marry someone who then paid him [amount] Taiwanese dollars. The applicant confirmed that the marriage was false and had been for the purposes of the woman obtaining residence in Taiwan.

15. As discussed during the Tribunal hearing, the applicant’s own evidence indicates that he has entered into a false marriage in Taiwan and in doing so has deliberately breached Taiwan’s immigration laws. He has also been willing to provide false information to the Tribunal during the hearing and only altered that information when inconsistencies in relation to his marital status were discussed with him. In the Tribunal’s view, the applicant’s willingness to breach his own country’s immigration laws and his willingness to provide false information, in circumstances where he has sworn to provide truthful evidence, is indicative of his poor credibility.

16. The Tribunal also considers that other aspects of the applicant’s claims and evidence are indicative of the fact that he is not a credible witness and that he has manufactured the totality of his claims. The applicant’s evidence to the Department, as set out in the delegate’s decision record, was that he was abused by his father and left home for boarding school. He claimed to have been beaten by his father and debt collectors began harassing him when he was [age] by coming to the place where the applicant was working. By contrast, when asked at the Tribunal hearing about this issue, the applicant stated that the debt collectors first came to him when he was at [a] School when he was about [age]. The applicant confirmed that he was at [the] school when the debt collectors first approached him and he had commenced studying at that school at the age of [age]. When the applicant was asked about the inconsistency in his evidence, he stated that he thinks he made a mistake about his age when he was interviewed. In addition, although the applicant told the delegate during the interview that he had paid back about [amount] Taiwanese dollars, and at one point his father owed [amount] Taiwanese dollars, he told the Tribunal during the hearing that he had paid back about [amount] Taiwanese dollars and was unable to recall how much money his father owed, stating only that it was millions.

17. The applicant was also asked about any assistance he sought from the police by both the Department and the Tribunal. The applicant told the delegate that although he reported the matter to the police they did not do anything. He said that the debt collectors kept coming back and assaulted him such that he was hospitalised on one occasion after he was picked up by the debt collectors and taken to a deserted place in a van, tied to a chair where [number] men beat him with a stick and took his wallet and money and he was abandoned in a deserted place and an ambulance called. During the Tribunal hearing, the applicant stated that he was assaulted [number] times and hospitalised twice. He stated that he has no records of the hospitalisation or the reports to the police. The applicant confirmed that the police did not assist him and stated that they were “useless”. When advised that he had told the delegate that he was hospitalised once as a result of the assaults, the applicant stated that he was hospitalised twice.

18. When the inconsistencies in his evidence were discussed during the hearing, the applicant told the Tribunal that he was unable to recall these matters because he did not want to think about the past. He also stated that he paid some of the money to the debt collectors at different times and borrowed the money so he did not keep track of the amount. The Tribunal does not accept the applicant’s explanation for the inconsistencies in his evidence. The Tribunal considers that had the applicant been the victim of debt collectors whilst a young man that he would be able to accurately recall whether this happened whilst he was at school or at a [certain] school. The Tribunal also considers it not credible that the applicant would not maintain a record of how much he had paid debt collectors for his father’s debts or that he would be unable to recall whether he was hospitalised on one or two occasions after being assaulted by debt collectors. In the Tribunal’s view, the inconsistencies in relation to these issues are indicative of the fact that the applicant’s claims have been fabricated.

19. Importantly, the Tribunal also considers that the applicant’s claims that debt collectors pursued him for several years in relation to debts owed to his father, and he was unable to obtain police assistance, to be not credible and also inconsistent with the independent evidence. As discussed with the applicant during the hearing, the independent evidence indicates that the debt collectors are prohibited from harassing or harming persons in relation to debts, and there is an independent agency which assists people who have been the victims of debt collectors.[1] Furthermore, although the Tribunal accepts that the independent evidence indicates that gangs are involved in debt collection in Taiwan, it also indicates that the police and other crime prevention agencies take action against those involved in harassing or harming people.[2]  

    [1] The Consumer Financial Protection Bureau enforces the Fair Debt Collection Practices Act in Taiwan. The Act states that debt collectors many not “harass oppress or abuse you” and “a debt collector is not allowed to discuss a debt with anyone else”. A victim can report problems to the state Attorney General’s Office, the Federal Trade Commission and the Consumer Financial Protection Bureau - Taiwan News 2015, ‘In Debt and Afraid: Dealing with Debt Collectors’, 26 March.

    [2] Moskowitz, Marc L. 2010, Popular Culture in Taiwan: Charismatic Modernity, Routledge Research on Taiwan.

20. The Tribunal is drawn to the conclusion, having considered all of the evidence that following the cessation of his second [Visa 1], that the applicant returned to Australia on a [different] visa with the intention of lodging a Protection visa to delay or extend his period of time in Australia for the purposes of employment. The Tribunal does not accept the applicant’s explanation to the Department and the Tribunal for the lengthy delay in the lodgement of the application, which was essentially that he did not know anything about Protection visas and it was only after he had a “chat” with some of his friends that he learned he could apply for a Protection visa. The Tribunal considers that the lengthy delay in the lodgement of the application, as well as the other factors discussed above, are indicative of the fact that the applicant has manufactured the totality of his claims to fear harm in Taiwan.

21. Thus, having considered all of the evidence, the Tribunal does not accept any of the applicant’s claims. The Tribunal does not accept that the applicant’s father beat him or that he owed money to creditors or that debt collectors or creditors ever harassed, harmed or pursued the applicant in relation to any debts. The Tribunal does not accept that the applicant will be harassed, harmed or subject to serious harm from debt collectors or creditors any other persons upon his return to Taiwan. The Tribunal finds that there is not a real chance that the applicant will suffer serious harm if he returns to Taiwan. The Tribunal finds, therefore, that the applicant does not have a well founded fear of persecution if he returns to Taiwan now or in the reasonably foreseeable future. 

22. Are there substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan that there is a real risk he will suffer significant harm?

23. The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions. The Tribunal has not accepted any of the applicant’s claims regarding his experiences in Taiwan or his reasons for leaving Taiwan. For the same reasons as those set out above, the Tribunal does not accept that the applicant was harmed by his father or by creditors or debt collectors or that there is a real risk that he will be subject to harm from his father, creditors, debt collectors or any other persons upon his return to Taiwan.  

24. Accordingly, 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 Taiwan that there is a real risk that the applicant will suffer significant harm, including arbitrary deprivation of life, torture, the death penalty, cruel or inhuman treatment or punishment or degrading treatment or punishment.

    CONCLUSIONS

25. 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).

26. 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).

27. 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

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

    ATTACHMENT A - RELEVANT LAW

29. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

    ‘(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 under the Refugees Convention as amended by the Refugees Protocol; 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.’

    Refugee criterion

30. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

31. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

32. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

    (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.

    Complementary protection criterion

1. The complementary protection criterion is set out in paragraph 36(2)(aa) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

   Susan Pinto
   Member