1510345 (Refugee)

1510345 (Refugee) [2017] AATA 1012 (7 June 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1510345
COUNTRY OF REFERENCE:                  Taiwan
MEMBER:Christine Cody
DATE:7 June 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 June 2017 at 1:46pm
CATCHWORDS
Refugee – Protection visa – Taiwan – Particular social group – Victim of money lenders – Kidnapping – Credibility – Inconsistent evidence – Delay in protection application
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] July 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). He was represented by a registered migration agent from [agency] in both the initial application to the Department, and in the application for review. The relevant law is set out in Annexure A.
The applicant who claims to be a citizen of Taiwan, applied for the visa [in] March 2015. The delegate refused to grant the visa on the basis that the claims were not credible, and the significant delay in lodging a protection visa application.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Department
The decision of the delegate provided to the Tribunal by the applicant, as well as the applicant’s documents, shows his migration history is as follows:
·     The applicant’s first [temporary] visa was granted in October 2012.
·     The applicant departed Taiwan [in] April 2013, legally, using his passport. He arrived in Australia [in] April 2013 holding a [temporary] visa which remained valid until [date] April 2014.
·     [In] April 2014 the applicant was granted a further [temporary] visa which was valid until [date] April 2015.
·     [In] March 2015 the applicant lodged a protection visa application.
The applicant provided protection visa application forms to the Department and a copy of some pages of his passport. According to the written documents, his background and claims can be summarised as follows:
·     He was born in Tapei, Taiwan, in [year] and is aged [age]. He speaks, reads and writes in Mandarin.
·     He did not provide details of his ethnicity, religion, occupation, or marital status.
·     He provided no previous address in Taiwan; he only declared an address in Australia.
·     He did not give details of any employment or education, whether in Australia or Taiwan.
·     His parents are in Taiwan; they were the only family members declared. He is in contact with them by phone from time to time. His parents will be implicated if he returns to their home.
·     The applicant left Taiwan to escape from gangsters who had criminal dealings in his restaurant. If he returns to Taiwan, he will face harm and persecution from the gangsters as he could not repay the debt he has borrowed. His life will be in danger because he threatened the gangsters that he would expose their dealings. He also faces torture if he returns to Taiwan. There are two reasons; firstly he could not pay back the debt he borrowed from the moneylenders and secondly, he caused offence to the gangsters because he threatened to expose the criminal conduct.
·     In response to the question whether he experienced harm in Taiwan, he said yes, he has been detained and bashed up by the gangsters and he was constantly watched when he was in Taiwan.
·     In response to the question whether he sought help after the harm, he said he intended to call the police but he noted that the incident involved organised criminal gangsters. The police would not provide 24 hours protection to him and therefore he chose to go into hiding.
·     The authorities may provide him with temporary protection but the gangsters will be after him for the rest of his life.
·     He could not relocate because as they are a career criminal organisation with connections to other criminals around the country; it is not possible to hide in Taiwan, they could find him.
·     He has no personal contacts in Australia.
The applicant attended an interview with a delegate of the Department [in] April 2015. The Tribunal has listened to a recording of the interview. The applicant gave evidence about his claims, and the delegate raised concerns with the claims. Some of the relevant evidence is as follows:
·     The applicant left school in [year] and then he worked in factories.
·     Then, in 2011, he and his parents started running a restaurant; they worked in the restaurant and they only employed one person.
·     The reason why they obtained a loan was to pay increased rent and labour costs for one employee. His parents had no assets to borrow against, they lived in rented accommodation.
·     Prior to starting the business, his father was a factory worker and his mother was a housewife.
·     [In] January 2013 the gangsters came to the restaurant and caused damage after he was unable to give them any money.
·     [In] February 2013 the applicant threatened the gangsters he would report them to the police.
·     [In] February 2013 he was kidnapped, detained for two or three days and bashed by gangsters. He did not require any medical treatment after he was released because they “only” slapped him, spat on him and verbally belittled him
·     [In] February 2013 he and his parents reported the incident to the police.
·     [In] March 2013 after receiving threatening phone calls he and his parents closed the restaurant and went their separate ways into hiding.
The Departmental file contained information relating to the applicant’s [temporary] visa applications. These documents did not provide any relevant material which had not otherwise been provided to the applicant or the delegate’s decision record provided to the Tribunal by the applicant.
There are no certificates restricting disclosure of any material on the Department’s file.
The Tribunal
The applicant provided to the Tribunal his application for review form together with a copy of the delegate’s decision record. He did not provide any other relevant document, evidence or submission, other than a Response to Hearing Invitation stating that he would be attending the hearing.
The applicant appeared before the Tribunal on 23 May 2017 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 explained that it was considering whether the applicant met the requirements as a refugee or under complementary protection, noting that it was not bound to follow the delegate’s decision record and it would make a fresh decision on all of the evidence before it, up until the time it issued a written decision.
The Tribunal asked the applicant questions about his background and claims, and noted that he would have an opportunity to say anything further after the Tribunal’s questions.
The applicant said that if he returns, he fears that the gangsters will lock him up and beat him and even worse they could kill him and put him in a concrete dam next to the beach which is what a lot of gangsters do in Taiwan. When asked if he was worried or concerned about anything else if he returns to Taiwan, he said he worries about his family, he lost contact with them and he doesn’t know what happened to them. The only thing he worries about is his safety, and there is nothing else.
While noting that it had not made up its mind, the Tribunal put to the applicant its concerns with the credibility of his claims.
Further relevant evidence is set out below.
FINDINGS AND REASONS
Country of reference
The applicant produced a photocopy of the identity page of his passport issued [in] 2012 by the Republic of China authorities noting that the applicant was born in Taipei City. He claims to be born in Taiwan, a Chinese citizen, and the Department accepted that the applicant was a national of Republic of China. In his application for review form he said that his nationality was Taiwanese.
The Tribunal is prepared to accept, for the purposes of this decision, that the applicant is a national of Taiwan, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Taiwan.
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, 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 had a number of concerns about the applicant’s changing and inconsistent evidence, and his delay in seeking protection, and his claimed reasons for fears upon return to Taiwan. The Tribunal did not find the applicant to be a credible, truthful, or reliable witness in relation to matters central to, and related to, his claims. The Tribunal’s concerns are set out in the following paragraphs.
Firstly, the Tribunal was concerned that the applicant provided changing, inconsistent, and not credible evidence concerning the terms of the loan of $[amount] from the gangsters.
The Tribunal asked the applicant what were the terms of the loan, and he responded to the effect that “there was no fixed term and the interest would be higher and if they would come to his home and ask for money”. The Tribunal asked if these were the terms that he agreed to, and he said he did not really understand the terms. The Tribunal noted that he was not explaining the agreed terms of the loan and he repeated there was no fixed term and he has to keep paying the interest and if he can’t pay, they will come after him. The Tribunal was concerned with his evasive evidence, and considered it highly unlikely that the applicant would have agreed to unknown terms for a loan.
The applicant then said that the agreed interest was that every [number] days, [amount]interest will be applied. The Tribunal asked for more details, and the applicant said that every [number] days, and amount of $[amount] in interest had to be paid, and if you paid the interest, the debt would remain at $[amount]. The applicant then claimed that every [number] days he did pay $[amount], from the time he took the loan in September 2012, until January 2013. The Tribunal put to the applicant that it was his evidence then that between September 2012 and January 2013, he paid about $[amount] in interest (namely $[amount] every [number] days) , without having repaid any of the capital. The applicant agreed. The Tribunal asked him where he would have got the money from to pay this interest, and he said the income from the business. Given the applicant’s claim that the reason for the loan was to pay an increase in salary for one employee in a restaurant as well as an increase in rent, and his evidence that already, previously, the business had not been going well, the Tribunal considers it highly unlikely that the applicant would have firstly agreed to terms of a loan that he did not understand, of such magnitude, in relation to this restaurant which had already been performing poorly, and secondly, that within less than two months of taking out the loan, he would have paid to the gangsters an amount equivalent to the whole of the capital he borrowed ([number] days = [numbers] = $[amount]). His response was that they could not afford to pay the loan and the interest and that’s why they just paid the interest. The Tribunal put to him that he claims to be college educated, and it seems highly unlikely that he would have borrowed money without knowing the terms of the loan, or that he would have made these payments. In response, he said that he did not understand underground money. The Tribunal considers his evidence to be highly unlikely.
Further, the applicant gave inconsistent evidence about the cycle of payment, as well as the amount repaid, at interview and at the hearing. As noted above, he told the Tribunal that the interest accrued on the sum of $[amount] every [number] days, whereas he told the delegate that the interest operated on a [number] day cycle[1]. When the Tribunal put this to the applicant, he said he thinks he told the delegate it was every [number] days.
[1] As set out in the delegate’s decision record provided to the Tribunal by the applicant.
The Tribunal considers that the applicant has had time to check the tape of the interview after the hearing, and to inform the Tribunal if such a translating mistake had occurred. He has not done so. The Tribunal is not prepared to accept his assertion that there was a translating error at interview, and the Tribunal considers that the inconsistency relating to the cycle period for the due date of interest undermines the applicant’s claims and his credibility.
Further, as put to the applicant at hearing, he also told the delegate[2] that:
He was paying at [percent] aggregate loan rates that operated on a [number] day cycle….. After [number] days his initial debt was multiplied by 1.2 so his debt became $[amount], and that after a further [number] days his debt was again multiplied by 1.2 and became $[amount]. The applicant was advised [by the delegate] that that the terms of this loan would have resulted in him being several million dollars in debt by the time he claimed he was detained in February 2013, given that he took out the loan in September 2012. The applicant stated that he did not understand what his obligations were regarding the payment of the loan….
[2] As set out in the delegate’s decision record provided to the Tribunal by the applicant.
The Tribunal noted that his responses at interview thus indicated that he was not repaying the interest on the loan on a regular basis, and instead the interest and the capital were accumulating. This however was very different to his evidence at hearing. In response, the applicant said that the delegate must have made a mistake. For the same reasons set out above, the Tribunal is not prepared to accept this assertion. The Tribunal considers that the applicant’s inconsistent evidence concerning the amount of debt/interest accumulating and/or paid undermines his credibility and his claims.
Further, the Tribunal was concerned with the applicant’s claim at hearing that the gangsters decided to release him once he was kidnapped [in] February 2013, even though he had stopped paying the gangsters $[amount] every [number] days by January 2013, and he had not repaid the capital. The Tribunal put to him that it did not make sense for them just to let him go. He said if they didn’t let him go, they would have just kept him there and killed him and it’s not worth it. They let him go so he could keep on paying and he told them he could pay. The Tribunal put to him that gangsters do bad things, and if they thought that he had assets, they could have held him and got his parents to give them the assets before they released the applicant. In response, he said that if they did this, it would be a really serious crime and he doesn’t think they wanted to do this. The Tribunal put to him that according to his application form, they are career criminals with connections to other criminals all around the country. The Tribunal considers the applicant’s evidence (that the gangsters were not prepared to commit criminal behaviour in order to get their money back) to be highly unlikely, as well as inconsistent with his claim that they had already engaged in unlawful behaviour (by kidnapping him). Further, it is inconsistent with his claims of the gangsters future behaviour (they will lock him up, kill him, and put his body in concrete). The Tribunal considers that the applicant’s evidence undermines his credibility and his claims.
Secondly, the Tribunal was concerned that there were a number of inconsistencies between the applicant’s evidence and his application form and/or his evidence at interview. For example:
·     The applicant claimed in his application form in March 2015 that if he returned to their home, his parents would be implicated. However, he told Tribunal that his parents did not have a home (in February 2012 they had moved out of the home they had been renting for 4-5 years, in order to escape the gangsters). When the Tribunal put to the applicant its concerns with this inconsistency, and he said that his agent must have thought his parents were still living there, but he has not been in contact with them. The Tribunal is not prepared to accept this explanation. When the Tribunal had earlier asked the applicant about the completion of his protection visa application form, it was concerned that his evidence was evasive. At one stage, he did however admit to being aware of the contents of his application form; however he then said that there may be some mistakes (without specifying what they were). The Tribunal is not prepared to accept that his assertion in the application form about the applicant returning to his parents’ home was a mistake made by his agent (especially having regard to the other concerns in this decision). The Tribunal considers that if, as claimed, both he and his parents had moved away from their rented premises in order to escape gangsters, it would not be written on his application form that he would implicate his parents by returning to “their home”.
·     The applicant claimed his application form that it was “my restaurant”.   However, in his evidence to the Tribunal, he claimed it had been his parent’s restaurant, and that he had later joined their restaurant. The Tribunal asked the applicant why he referred to as “my restaurant”, and he said because they ran as a partnership. The Tribunal then asked why he had not called it “our restaurant” and he said it was just a careless mistake and he didn’t think too much about it. The Tribunal is not prepared to accept this, when also considering that his claim at hearing that it was initially his parents’ restaurant (which he then joined and they did some renovations) was inconsistent with his evidence to the delegate[3] that he had started the restaurant from scratch. The applicant responded “yes”; which the Tribunal considers is not an explanation.
·     The Tribunal was concerned with the applicant’s inconsistent evidence about whether or not he contacted the police. As set out in paragraph 93 of his application form, in response to the question “did you seek help within the country after the harm?”, He selected “no” and stated “I have intended to call the police but I noted that it involved in organised criminal gangster. The police would not provide 24 hours protection to me. I therefore chose to go into hiding.” However, at interview, he stated that he and his parents reported his abduction and bashing by the gangsters to the police [in] February 2013[4]. When the Tribunal put this inconsistency to the applicant, he claimed that when he reported to the police, some of the gangsters were arrested, and others kept on coming back and harassing him. The Tribunal asked him why he said in his application form that because they were gangsters, he was too scared to report it to the police. He did not directly respond to the Tribunal’s concern; the Tribunal notes that in the delegate’s decision record when this question was raised, he said that the mistake was made by his migration agent. In the circumstances, the Tribunal is not prepared to accept this assertion.
[3] As set out in the delegate’s decision record provided to the Tribunal by the applicant.
[4] As set out in the delegate’s decision record provided to the Tribunal by the applicant.

The Tribunal considers that the above inconsistencies undermine his credibility and his claims.
The Tribunal had further concerns about the applicant’s credibility concerning his claimed background in Taiwan, having regard to his changing evidence to both the delegate[5] and the Tribunal, as set out below
At interview:
·     He told the delegate that ever since 2005, he was working in factories.
·     He said that he completed school in [year]..
·     When the delegate put to him that his first [temporary] visa application indicated he had completed a college degree, he said that he completed college in [year]. He then changed his evidence and said that he did not complete the degree until [year].
·     When it was put to him that he had earlier said that since 2005 he was working in factories, he then said that he was working and studying at the same time.
·     At the end of the interview he was asked when he had undergone military service and he said he had served one year in 2008. The delegate noted this is when he said he was studying and the applicant said he did both.
·     The delegate’s decision record notes the delegate’s concern that the applicant had given varying accounts when he had completed his education and was evasive about what he did afterwards and did not mention his military service until he was reminded it was compulsory towards the end of his interview.
[5] As set out in the delegate’s decision record provided to the tribunal by the applicant.
His evidence to the Tribunal was also not consistent: he told the Tribunal that he started studying [a vocational] course at college in [year], which he finished in [year]. The Tribunal noted that his start date at college was inconsistent with evidence to the delegate that he had only finished school in [year][6]; so it is difficult to understand how he could have started college [number] years before he finished school. In response he said he felt embarrassed that he delayed his college graduation and so he just wrote [year] in his protection visa application form. The Tribunal was concerned that he did not explain why he told the delegate he had finished school in [year], but he told the Tribunal that he started studying at college in [year], even before he had finished school. The Tribunal considered that this also undermined his claimed background.
[6] As set out in the delegate’s decision record provided to the Tribunal by the applicant.
Thirdly, the Tribunal was concerned with the applicant’s evidence about his application for a [temporary] visa.
He told the Tribunal that the reason he applied for a passport was because a friend of his suggested that they could both apply for [temporary] visa; he thought it might be useful as it is valid for 10 years. The [temporary] visa was granted in October 2012[7] (and his passport was issued [in] 2012).
[7] Applicant's protection visa application.
The Tribunal put to the applicant that it was difficult to understand why he would take out such a significant loan from gangsters for an ongoing restaurant business in September 2012, if he was planning to go to Australia on a [temporary] visa. He responded that his purpose is to run away so he doesn’t have to pay them back and his friend asked him and he thought it was a good idea and the visa is valid for one year. The Tribunal put to him that it did not appear to make sense that he wanted to run away, given he had taken out a loan, was repaying $[amount] every [number] days, and would be leaving behind his parents, who would be exposed, all while they were struggling to make the business succeed. In response, the applicant said that he had heard that [temporary] visas were good and you could go and make a lot of money by working in Australia and he thought he could earn money and help out his parents in the business. The Tribunal put to the applicant that if this was his genuine intention, it did not understand why he delayed in leaving for Australia (the visa was granted in from October 2012 but he did not leave until April 2013). He did not respond to this concern directly, he just said it was just an idea to go to Australia and he was watching TV and a person committed suicide who could not pay their debt, and the applicant was staying inside and he could go out.
The Tribunal had further concerns in this regard, noting that he claimed to have been abducted in February 2013, and to have gone into hiding for two months thereafter, whereas he could have used his [temporary] visa to escape to Australia. He responded because at that time he just wanted to avoid the gangsters and he didn’t really want to go overseas. The Tribunal considers that this is inconsistent with his application for an Australian [temporary] visa, and it does not find the applicant’s evidence to be persuasive.
Finally, the Tribunal was concerned with the applicant’s delay in lodging a protection visa application once he was in Australia. He told the Tribunal that he found out that he could lodge a protection visa application about one year after he came to Australia, which is when he saw a migration agent. He also claimed that he did not speak English very well. The Tribunal put to the applicant that if he was in genuine fear, it would have thought that he would have made enquiries and seen an agent as soon as he arrived, considering his evidence of his activities in Australia, which indicate his resourcefulness: managing to have seven or eight jobs, and moving around and residing in almost all the different states of Australia. In response he said the first thing is to survive and that’s why he applied for the jobs. While the Tribunal accepts that the applicant had a valid [temporary] visa for a year, it considers that if he was in genuine fear of harm, he would have made enquiries earlier about how he could remain in Australia. It is not prepared to accept that his limited English stopped him from doing this, given his ability to survive and move around throughout Australia and find a variety of jobs. The Tribunal considers that his delay of almost two years in lodging a protection visa application undermines his credibility and feared harm.
For the reasons set out above, the Tribunal does not consider the applicant to be a credible witness.
Other matters
The Tribunal was concerned that the applicant often claimed that others made errors which had led to his inconsistent evidence. The Tribunal noted at the end of the hearing that he had claimed that his evidence at the delegate’s interview may have been mistranslated, or that the delegate made a mistake, or that his agent might have completed the forms wrongly, but he had not asked for extra time to show that this had occurred. The applicant did not, even then, ask the Tribunal for extra time to support his assertions. The Tribunal noted that it would not be making a decision immediately and it would take into account anything received up until the time it made its decision. The Tribunal has not received any further correspondence from the applicant or his agent in the two week period since the hearing date. The Tribunal also notes that the applicant was given an opportunity prior to the hearing to provide any documents or submissions upon which he sought to rely, but he did not do so. In the circumstances, the Tribunal is not prepared to accept the applicant’s assertions that the inconsistencies and difficulties with his evidence arise from mistakes made by others. It does not accept, on the evidence before it, that the difficulties in his evidence can be explained by mistakes made by the delegate, his migration agent, or translating errors.
While the Tribunal acknowledges that the applicant could have been nervous at the hearing, the Tribunal does not accept that this can explain the difficulties with his evidence.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and that the applicant has fabricated accounts of events and claimed fears, upon which he has based his protection claims.
Findings on the applicant’s claims
On the basis of the adverse credibility finding the Tribunal does not accept that: the applicant was involved in a restaurant business with his parents; that the business had difficulties and that he borrowed money from gangsters which caused financial difficulties; that he was threatened, monitored, kidnapped, detained, beaten or otherwise harmed by gangsters; that he or his family reported to the police or were fearful of reporting to the police; that he threatened to expose gangsters dealings or caused offence to them. It does not accept that he had debts. The Tribunal does not accept any claims which flow from these claims. The Tribunal does not accept that the applicant feared any harm before coming to Australia, nor that adverse circumstances were the reason for him coming to Australia.
The Tribunal finds that the applicant was prepared to make false claims to support a protection visa application. The Tribunal does not accept that anyone has had any adverse interest in the applicant while he was in Taiwan or since he has been in Australia. It does not accept that he (or his parents) owes anyone any money, nor does it accept that he is worried about his parents or has lost contact with them, or that they do not have a home. The Tribunal considers that he has not been truthful about his education and work in Taiwan, although it considers that in all the circumstances is likely that he has worked in Taiwan (although not, as claimed, in a restaurant with his parents).
On the evidence before it, the Tribunal is not satisfied that the applicant (or his family) has faced or does face a real chance of serious harm or a real risk of significant harm as a result of gangsters or state protection issues, nor does it accept that in his particular circumstances, returning home to his family and working, he faces a real chance of serious harm or a real risk of significant harm.
The Tribunal is not satisfied on the evidence before it that there is any reason for considering that the applicant faces a real chance of serious harm.
The Tribunal is not satisfied on the evidence before it that this applicant faces a real chance or real risk of requiring access to state protection.
The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past or future harm feared, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution for any of the reasons put forward by him.
The Tribunal does not accept that there is any credible evidence to support that the applicant faces a real chance of persecution in Taiwan. 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).
Complementary protection
Having concluded that the applicant does not meet the criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A).
The Tribunal has accepted that the applicant is a [age] male from Taipei, who has a college degree. As noted above, it considers that he has not been truthful about his education and work in Taiwan, although it considers it likely that he has worked in Taiwan. For the reasons discussed above, the Tribunal is not satisfied that the applicant has been truthful in relation to the majority of his claims. The Tribunal does not accept that the applicant has experienced any of the past harm claimed (including threats, kidnapping, harm, or being searched for or a lack of state protection). It does not accept that he or his parents owe any money.The Tribunal considers that he is a resourceful person who has managed to survive in a foreign country. The Tribunal considers that he will return to live with his family and work again in his home country. The Tribunal is not satisfied that in the applicant’s particular circumstances, he faces a real risk of significant harm from any gangsters (or from anyone else) for any other reason nor an inability to access state protection.
The Tribunal is not satisfied that there is a real risk that he will face a real risk of adverse attention amounting to significant harm, from anyone, for any reason.
On the evidence before it, and for the reasons discussed above, and having considered the claims singularly and cumulatively, 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 a receiving country, namely Taiwan, there is a real risk he will suffer significant harm. Accordingly, the Tribunal finds that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ANNEXURE A - CRITERIA FOR A PROTECTION VISA
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, 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.
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.
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 themself 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).
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.
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.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant 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.

[2017] AATA 1012

7 June 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction