1619944 (Refugee)

1619944 (Refugee) [2020] AATA 1279 (22 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619944
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Anne Grant
DATE:22 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 April 2020 at 9:35am
CATCHWORDS
REFUGEE – protection visa – Taiwan – money lenders and associated criminal gangs – effective State protection – police actions against crime and criminal gangs – Taiwan’s judicial system – failure to attend Departmental interview or Tribunal hearing – claims not established – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65, 425
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 and Border Protection on 4 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Taiwan, applied for the visa on 27 March 2016. The delegate refused to grant the visa, finding that the applicant could obtain effective protection from the State and that the State was willing and able to offer such protection. The applicant applied for review of that decision on 25 November 2016 and provided a copy of the delegate’s decision to the Tribunal with his review application.
On 12 February 2020, the applicant was advised that the Tribunal was unable to make a favourable decision on the material before it alone, and invited to attend a hearing at the Tribunal to give evidence and present arguments relating to the issues arising in his case on 16 April 2020. On 17 February 2020, the applicant wrote to the Tribunal by email and stated that he had decided not to attend the hearing as he does feel very pressured. He stated that he believes he has submitted sufficient paper documents, and ‘just want to emphasise that I am very scared to return to my home country due to my previous experience there. My country is getting really worse than before and I feel hopeless for the government. I want to tell you that you can make your final decision based on my previous paper information.’ I find that the applicant has consented to the Tribunal deciding the review without him appearing before it and under s.425(2)(b), the Tribunal was no longer required to invite the applicant to a hearing.
On 24 March 2020, the tribunal wrote to the applicant advising him that it had considered his request that a decision be made on the basis of the paper documents he had submitted, that the hearing booked for 16 April 2020 had been cancelled, and that he would be informed of the outcome of his application in due course.
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 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).
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.
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
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
The applicant has provided a copy of his passport with his application. This discloses that he is a citizen of the Republic of China (Taiwan) and was born in Taiwan. Identification records in the Departmental file (at folio 42) confirm he is a citizen of Taiwan. I find that Taiwan is the country of his nationality and the receiving country.
The issue in this case is whether the applicant is a refugee and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Republic of China (Taiwan), he will suffer significant harm.
Information in the applicant’s application and in the Departmental file (including movement records) reflect that that the applicant was granted a working holiday visa on 7 March 2013 and that he was allowed multiple entries under that visa. The movement records disclose that he arrived in Australia [in] April 2013 and departed [in] October 2013. According to the applicant in his application at question and answer 70, he travelled to Taiwan at that time. He then returned to Australia [in] November 2013. His visa was later extended to 5 April 2015. He lodged his application for protection on 30 March 2015.
The applicant’s written application for protection provided a written statement by him in support of his claim for protection. The application also discloses (at question and answer 44) that he has a father, mother and [number of siblings] living in Taiwan, and at question and answer 45 that he contacts them by phone ‘sometimes’. In Part B of his application for protection, the applicant also discloses that he has a wife living in Taiwan but has provided no other information in relation to that person.
The claims in the applicant’s statement accompanying his application are as follows:
·He came from Taiwan. He used to be a [Occupation 1], but he was often fired by his bosses because he often offended them by being too outright and intolerant of injustice.
·Several years before he arrived in Australia, he was somehow persuaded by some friends to invest in a business. It was a joint-venture by several partners. Though he was honest and diligent, some unexpected mishaps happened when two of his partners borrowed a usurious loan unbeknown to him, and ran away with the money, leaving him fully liable for the usurious debts.
·The usurer, unable to find his partners, came to press him for payment of the debt. Not knowing what had really happened, he dared not to face the creditor, therefore he was intimidated and threatened by the underworld gangs. Although he called the police in time, they did not seem to be alerted and ready to take any measures to protect him. He had to flee his home and went into hiding everywhere. He felt sure that he was insecure living in Taiwan and had no alternative but to come to Australia. He had hoped that after some time his nightmare would disappear of its’ own accord, but he was wrong because the facts disappointed him thoroughly. The usurer and the underworld gangs joined their forces in harassing his family members and forcing them to have him come back to Taiwan. His family members were almost breaking down and they could hardly go on with their normal life any longer.
·He had planned to go back to Taiwan, but couldn’t because he feared he would be faced with danger if he were to do so. He doesn’t think he could trust his fate with the incompetent Taiwanese police, and his family members don’t want him to go back, because the police was said to be in collusion with underworld gangs under the table. It is his conviction that Australia is a country advocating democracy, freedom and human rights, and he hopes he can be permitted to stay here.
In his application for protection at question and answer 82, the applicant provided only one address in Taiwan – from his birth in [year] up to when he departed the country. That address is in [Village 1], [District 1], New Taipei City, Taiwan.
The applicant also stated in his application for protection that he finished study in 2003 and that his employment in Taiwan from 2006 to 2013 was in [Industry 1] as a [Occupation 1]. In Australia, he has worked as a [Occupation 2].
The applicant was not interviewed by the delegate, so no additional evidence was given at interview to the delegate. He has provided no additional material to the Tribunal apart from the statements made in his letter in which he said he did not want to attend a hearing and requesting that the decision be made on the basis of the information he had provided: that he is still fearful of returning to Taiwan and ‘his country is getting really worse than before and he feels hopeless for the government’.
Consideration of claim that “his country is getting worse than before and he feels hopeless for the government.”
The applicant made this recent claim with no supporting information. He has not explained what harm he fears due to the ‘country getting worse than before’ or because ‘he feels hopeless for the government’, or why he holds those fears. Based on the limited information provided by the applicant, I am not satisfied that he has established that he would suffer any harm (serious or otherwise) due to those factors. I am also not satisfied that he has established that he would be persecuted under this claim because of his race, religion, nationality, membership of a particular social group or political opinion. The information before me does not disclose and I am not satisfied that he fears persecution for any of the reasons in s.5J(1)(a) of the Act, or that the harm he fears from this claim involves serious harm as required by s.5J(4)(b) of the Act. I find that the applicant has not established that there is a real chance that he will suffer persecution due to poor or deteriorating social, political and economic conditions in Taiwan. This claim is considered further under the complementary protection provisions below.
Consideration of claims and country information in relation to fear of money lender and associated criminal gangs
The applicant claims that he has been threatened and harassed by criminals associated with a money lender, and that he fears that he will suffer serious harm from those people when he returns to Taiwan. He claims police cannot and will not help him because they are corrupt and incompetent. I have considered the generally available information about criminal activity in Taiwan, and the police response to that activity.
On 7 January 2016 Taipei Times newspaper reported that Central Taiwan Criminal Investigation Bureau (CIB) officials said that ‘[l]aw enforcement officers yesterday morning stormed a number of locations in Yunlin County, including a KTV [karaoke television] parlor and several residences in Siluo Township, (Yunlin County), where police ‘apprehended 15 people alleged to be members of a criminal gang’, including its alleged ‘ringleader’, ‘surnamed Huang’, ‘and seized firearms and ammunition’. Police said ‘the Siluo-based group used firearms and intimidation tactics to collect debts and also extorted money from businesses’ – ‘mostly KTV parlors, nightclubs and electronic gambling dens across Yunlin County’ – ‘destroying property with bats and iron bars if people did not pay protection money’: ‘In one case last year, a business proprietor was beaten and left with severe head injuries and one severed finger’.[1]
[1] Pan J 2016, ‘Alleged gang members arrested’, Taipei Times, 7 January 2016 Report available here: >
On 26 May 2015 The China Post reported that the Bureau of Investigation (BOI, 調查局) said that the previous day a team of agents from New Taipei District Prosecutors Office (NTDPO, 新北地檢署) Taoyuan branch had searched 11 locations, including Haishan and Luzhou Precincts of New Taipei City Police Department (NTPD, 新北市警察局) and the NTPD Criminal Investigation Division (CID), ‘taking 17 suspects into custody, including police officers, for further investigations’ and had summoned four senior NTPD police officers (two from Haishan Precinct, one from Luzhou Precinct and one from CID) ‘for allegedly shielding and abetting a loan shark and reportedly forcing borrowers to transfer house and land deeds to the alleged loan shark’. Prosecutors said accusations were received in 2014 of NTPD police officers ‘working with a loan shark surnamed Su (蘇) in Luzhou District. Undercover investigations were then conducted’. Su operated near ‘Luzhou Precinct in 2009, allegedly charging exorbitant interest rates’. Prosecutors said the summoned four officers: were suspected of ‘going after the borrowers when payments were not returned on schedule, and forcing them into transferring’ ‘their house and land deeds’ to Su; ‘have each invested with Su, with amounts ranging from NT$500,000 to NT$5 million, and have also reportedly taken monthly bribes from him in cash, allegedly profiting by over NT$10 million between 2009 and 2013.’ Prosecutors were ‘looking into breaches of corruption, fraud, and usury laws’.[2]
[2] Sun Hsin-hsuan 2015, ‘Police suspected of abetting loan shark’ 2015, The China Post, 26 May 2015:
On 12 March 2015 The China Post reported that the CIB said that police in New Taipei City recently arrested four members, including ‘the chief’, ‘of a debt-collecting ring that was running underground gambling and drug-selling businesses’ ‘at Xindian and Shenkeng districts of New Taipei’. The gang used ‘violence to enforce debt collection’, mostly from ‘drug-abusers’. The CIB received tipoffs of the gang’s activities in 2014 and the raid followed ‘months of investigations’. The suspects faced ‘charges of violent debt collection, intimidation, offenses against personal liberty, and violations of the Organized Crime Prevention Act’ and the case was ‘being referred to the Taipei District Prosecutors Office.’[3]
[3] ‘Violent debt-collecting gang busted by the CIB’ 2015, The China Post, 12 March 2015:
In August 2013 The China Post reported that the CIB said that in a nationwide police sweep ‘more than 250 people, including the bosses of 12 gangs’ ‘and 79 of their followers’ had been arrested[4]:
[4] ‘Over 250 suspects nabbed in crime sweep: CIB’ 2013, The China Post, 15 August 2013:
"Operation Chi Ping" saw police in Taipei round up four suspects allegedly belonging to the "Di Tang" branch of the Bamboo Union gang. The chief suspect, surnamed Su, and his three Di Tang followers allegedly committed a series of extortion cases, the CIB said.
In one case, a man sustained serious head injuries after being beaten up by the gang, the CIB said.
In New Taipei, the alleged leader of the "Hai Shan Tang" branch of the Four Seas Gang, surnamed Tang, was arrested along with 12 of his followers on extortion and drug dealing charges. Police seized air guns and amphetamines from the suspects, the CIB said.
New Taipei police also arrested seven others from the "Ching Tang" branch of the Bamboo Union, including the leader, surnamed Wu, on loan-sharking charges, the CIB said.
In Douliou, Yunlin County, a ward chief, surnamed Chang, was nabbed for allegedly extorting a few firms in the environmental protection sector. In one case, the company owner refused his demands and was allegedly beaten up by Chang's gangsters. Nine others associated with Chang were nabbed, CIB said.
In Kinmen [Island County], an extortion gang was busted, with its leader, surnamed Cheng, and five members arrested, the CIB said. In one case, a man who could not pay off his debts to the gang committed suicide, the CIB added.
In Kaohsiung, the leader and seven members of the King Kong gang were rounded up for allegedly selling drugs to students and running online gambling operations, the CIB said.
In Taoyuan, police cracked down on the Tien Tao Meng gang's "Bade" branch, arresting its alleged leader and 10 members, the CIB said, adding the suspects allegedly ran online gambling operations.
Police in Miaoli, Changhua and Pingtung arrested a total of 23 suspected gangsters, the CIB added.
The CIB said it also conducted its own raids in Douliou, Yunlin County, arresting nine alleged gangsters.
On 26 January 2013 The China Post reported a CIB statement that on ‘Wednesday’ (23 January) its ‘7th Investigation Brigade joined forces with police units in Keelung, Taipei and New Taipei, as well as with the Taipei military police division, and raided 29 residences’, detained 18 suspects, ‘and seized evidence including baseball bats, account books, lists of victims' names and counterfeit detector machines, and NT$1 million in cash.’ The suspects - in a ‘loan shark ring [that] allegedly operated more than 10 car loan centers and pawnshops in Taipei and New Taipei, extending high-interest loans with interest rates of 15 percent per month to taxi drivers’, and ‘used various violent means to demand repayment of overdue loans, including beating debtors with baseball bats’ - were ‘handed over to the Taipei District Prosecutors' Office for offenses against personal liberty, seeking unreasonably high interest payments, and for other charges relating to organized crime’.[5]
[5] ‘CIB task force busts up loan shark ring, arrests 18 suspects’ 2013, The China Post, 26 January 2013:

On 9 November 2012 The China Post reported a CIB press release that ‘following three months of investigation’ a ‘CIB-led ad hoc investigation panel yesterday joined forces with over 50 police officers of Changhua and Nantou counties in raiding the residences and offices’ ‘a loan shark ring in Nantou County, nabbing eight suspects including the ring leader’ and confiscating ‘one refined steel-barrel gun, two refined long guns, two cold steel outdoorsman knives, 134 bank promissory notes, and NT$120,000 in cash as evidence against their violent debt-collection practices.’ The suspects - allegedly in a ‘crime ring, [that] had engaged in exports of orchid flowers, lent money at extremely high interest rates and then resorted to violence against those who failed to repay on schedule’ – ‘were handed over to the Nantou District Prosecutors' Office’ for prosecution.[6]
[6] ‘CIB busts loan shark ring in Nantou, nabs 8 suspects’ 2012, The China Post, 9 November 2012:
There are multiple other reports of police actions against crime and criminal gangs in Taiwan over the period from 2010 to the current time, some of which were referred to by the delegate in his decision (provided by the applicant to the Tribunal at the time of his application for review). As suggested by these many reports of Taiwanese authorities targeting violent gangs, some of whom shared links with loan sharks, people smuggling and drug trafficking, and some of whom were also police officers, it is noted that between 1995 and 2015, Taiwan’s violent crime numbers decreased from more than 16,000 cases to 1,617 cases.[7]
[7] ‘Violent Crime [Year 1995-Year 2014]’ 2015, 24 April, downloadable at ‘Violent Crime’ webpage, National Police Agency, Ministry of the Interior Republic of China (Taiwan) website
In relation to Taiwan’s judicial system, in its ‘Taiwan 2018 Human Rights Report,’ USDOS[8] included the following:
The constitution provides for an independent judiciary, and Taiwan authorities generally respected judicial independence and impartiality. Some political commentators and academics, however, publicly questioned the impartiality of judges and prosecutors involved in high profile, politically sensitive cases. Judicial reform advocates pressed for greater public accountability, reforms of the personnel system, and other procedural improvements.
In June the Legislative Yuan passed an amendment to the Judges Act, toughening disciplinary action against judges who have committed wrongdoing. Under the amendment, judges found guilty of corruption or dismissed from office in a disciplinary action, must return the salary received while they were suspended from duties during the investigation. In addition the amendment streamlined the process for evaluating judges and allowed individuals to apply for an evaluation of a judge’s competence directly, instead of being required to have a civil organization do so on their behalf.
The judicial system included options, beyond appeal, for rectifying an injustice. In a high-profile retrial in August 2018, former convict Su Pin-kun, who was sentenced to 15 years in prison on robbery and attempted murder charges in 1987 and received a presidential pardon in 2000, cleared his name after a 32-year legal battle.
[8] Available here: >
In January 2016 The China Post reported that ‘Taiwan being named the world's safest [sic for second safest] country in 2014’ was also ‘cited’ to the Cabinet meeting. Taiwan has been ranked as the second safest country in the world behind only Japan’, according to a ‘list of the "top 10 safest countries in the world to settle in 2014"’, ‘compiled by Lifestyle9.com based on crime statistics from the U.S. Federal Bureau of Investigation’: On 10 July 2014 English-language Taiwanese newspapers had reported:
“With a crime rate variable of 16.26 and a safety rate variable of 83.74 [= 100 minus 16.26], Taiwan is one of the best places to live in terms of low exposure to violent crimes and robbery, the website said.”[9]
[9] ‘Japan topped the list with a crime rate variable of 13.11 and a safety rate variable of 86.89’: CNA [Central News Agency] 2014, ‘Taiwan ranked world's second safest country to settle in by US website’, The China Post, 10 July <
The country information suggests that the applicant’s claim that he was being harassed by usurers and gang members associated with them in Taiwan is plausible. Although I am not satisfied, based on his written claims alone, that all of the applicant’s untested claims are established and can be relied on, for the purposes of conducting this review, (and because the country information at least supports such claims as being plausible) I have proceeded to assess his claims as if I accept that he has incurred a debt with a ‘usurer’ (even though it was his business partners who took out the debt) and that his colleagues have left him with the responsibility to pay the debt. I accept for the purposes of this review that he and his family may have received threats of harm if he failed to pay the debt. I am however not satisfied, based on the limited information he has provided, that he has been physically harmed by the usurers or by gangsters associated with them, that the applicant reported the claim to police or that he tried to relocate within Taiwan to avoid the harm he fears.
The applicant refers to the police as ‘incompetent’ and that the police ‘was said’ to be in collusion with the gangs ‘under the table’. The implication with these claims is that because of corruption and their general incompetence, the police would not provide him with protection (in the form of investigation and prosecution of those who threaten him.) The country information is not consistent with the applicant’s claims in this regard, and he has provided no supporting evidence demonstrating that he or his family reported the threats of harm to police which were ignored (such as police reports). The country information (some of which is noted above and in the delegate’s decision) reflects that the Taiwanese police take the issue of violent moneylenders seriously, notably having arrested and prosecuted multiple offenders over many years, including police officers said to be involved with them. It also reflects a quite remarkable reduction in the occurrence of violent crime in Taiwan, demonstrating that the authorities (including the police) have taken steps to manage and appropriately address gangs, crimes and even corrupt police over the past several years.
I do not accept that the usurer or gangsters associated with them would be able to threaten and harm the applicant with impunity. Even if corrupt police officers exist in Taiwan, I do not consider that the applicant has established (or that the country information supports a finding that) all officers are incompetent or corrupt or that the applicant would be unable to obtain protection from the Taiwanese police in the event that threats were made to harm him on return. After all, he claims he was not a signatory to the loan and it is reasonably presumed that he could prove that to the police, enabling them to address any threats or demands he faces by enforcing the law.
I have not accepted that the applicant has established that he has previously reported the threats and demands to police. The effectiveness of the Taiwanese authorities in impacting and reducing violent crime over many years (including against corrupt police officers, gangs and money lenders) suggest that the applicant could obtain protection (in the form of investigation, prosecution of his persecutors and physical protection) from the police and authorities in Taiwan from the harm he fears. The country information satisfies me that the Taiwanese authorities are capable of and have demonstrated a desire to pursue and prosecute violent criminal conduct in Taiwan. I am satisfied that an effective police force exists in Taiwan, and that protection from his persecutors is accessible and durable, and that Taiwan has an appropriate criminal law, a reasonably effective police force and an impartial judicial system. I find that the effective protection measures (as described in s.5LA of the Act) are available to the applicant in Taiwan.
According to s.5J(2), a person does not have a well-founded fear of persecution if effective protection measures are available to the person in the receiving country. I find that the applicant’s fear of persecution is not well founded, and he does not satisfy the criterion in s.36(2)(a) of the Act.
Complementary protection
The applicant claims that he will be harassed, beaten and suffer significant harm at the hands of money lenders or someone associated with them. In his letter to the Tribunal requesting that the matter be heard on the papers, he also raised a fear of harm based on the country ‘getting worse’ than before and that he ‘feels hopeless for his government.’
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
As noted above, I have proceeded on the basis as if the applicant had established that he was the victim of demands and threats from unscrupulous and potentially violent money lenders and people associated with them prior to his coming to Australia. I refer again to the limited information provided by the applicant and his claims that the police would not provide him with protection, because they are perceived by him to be incompetent and corrupt. I have rejected that claim above, in considering the refugee provisions, and in doing so have relied on country information which reflects that the Taiwanese police have demonstrated a willingness and capacity to prosecute violent moneylenders and have undertaken multiple operations over many years to protect citizens from unscrupulous and violent persons involved in usury and gang related crime. I rely on those same findings in assessing the applicant’s claims under the complementary protection provisions.
According to s.36(2B), there is taken not to be a real risk that an applicant will suffer significant harm in a country if I am satisfied that the applicant could obtain from an authority of the country, protection such that there would not be a real risk that he will suffer significant harm. I find that the Taiwanese police and authorities in Taiwan are able to provide protection to the applicant in the form of protection from the persons who threaten him, their arrest, investigation and prosecution such that there would not be a real risk that the applicant will suffer significant harm from those persons. Whilst the applicant claims that the police could not (or would not) protect him from harm or the threat of harm, I find that he has not established that claim. Accordingly, applying s.36(2B), there is taken not to be a real risk that the applicant will suffer significant harm in Taiwan from the money lenders and any gangsters or others associated with them.
The applicant’s claim that ‘The country is getting really worse than before and he feels hopeless for the government’
In his letter to the Tribunal, requesting that the matter be heard on the papers, the applicant stated that “his country is getting really worse than before and he feels hopeless for the government’”. He has not provided any other explanation of this claim and I have proceeded to consider whether the applicant has established that he would suffer harm (significant or otherwise) due to poor economic, social and political conditions in Taiwan.
According to general country information, Taiwan has a functioning and effective government, and an economy which is classed as one of the top 30 richest nations in the world. According to Wikipedia, “The economy of Taiwan is a developed capitalist economy that ranks as the seventh largest in Asia and 22^nd largest in the world by purchasing power parity. (PPP) It is included in the advanced economies group by the international monetary fund and gauged in the high-income economies group by the world Bank.”[10] Wikipedia cites an IMF report entitled “Select Aggregates” and a World Bank Country and Lending Groups – World Bank Data Report dated 11 January 2018 for this information.[11] I have checked the sources and am satisfied that they accurately reflect the information in the summary.
[10] Available here: IMF: World Bank:
I also note the following information on Taiwan’s political parties and economy from Department of Foreign Affairs and Trade’s “countries and regions” website:
Domestic Political Overview
Political Parties
There are two main political parties in Taiwan. The modern Kuomintang (KMT) evolved from the former military government Nationalist Party. The KMT’s support base is in northern Taiwan, where the Nationalist government and its supporters from the mainland established their new capital, Taipei. The KMT generally supports a conservative free-market agenda, although it maintains support for some state intervention in important sectors of the economy through a number of large state-owned enterprises established under its leadership. The KMT was in power most recently from 2008-2016 under Ma Ying-jeou, securing a number of cross-Strait agreements, including the overarching Economic Cooperation Framework Agreement (ECFA).
The pro-democracy movement of the 1970s and 80s gave rise to the Democratic Progressive Party (DPP). The DPP’s support base is in southern Taiwan, particularly among the “Taiwanese” communities established prior to the arrival of the “mainlanders” in 1949 some within the DPP support Taiwan’s de jure independence from China. The DPP held power from 2000 to 2008 under President Chen Shui-bian, whose leanings towards independence heightened tensions with China. The DPP’s broader policy agenda is generally socially progressive, focusing on issues such as income inequality, the environment, and economic and trade diversification.
Negotiation of a trade in services agreement with China proved controversial with many, particularly younger voters apprehensive that Taiwan was becoming too economically dependent on the mainland. In March 2014, students and NGOs led large street demonstrations, dubbed the Sunflower Movement, and occupied the chamber of the Legislative Yuan for 23 days. The social activism inspired by the Sunflower Movement led to the establishment of a number of new political parties, such as the New Power Party.
Parliamentary (Legislative Yuan) and presidential elections were held together on 16 January 2016. After eight years of KMT rule, Dr Tsai Ing-wen of the DPP was elected as Taiwan’s first female president and the DPP secured a majority in the Legislative Yuan for the first time.
On 11 January 2020, Dr Tsai Ing-wen was re-elected securing 57.13 per cent of the popular vote. Her opponents from the KMT, Kaohsiung Mayor Han Kuo-yu, and People’s First Party (PFP) leader, James Soong, secured 38.9 per cent and 4 per cent of the vote respectively. Although the DPP lost seven, it will continue to hold a majority (61 seats) in the 113 seat legislature.
Economic Overview
Until the mid-1960s, Taiwan's economy was dominated by agriculture, especially rice and sugar production. One of Asia's “Four Tigers”, the development of export-oriented manufacturing transformed Taiwan's economy into one defined by urban and industrial production. By the 1980s, Taiwan began relocating its low technology manufacturing offshore, especially to China. More recently, there has been a trend for some of Taiwan's more advanced high-tech industries to follow suit. Today Taiwan is also increasingly a tertiary economy, with services accounting for over 60 per cent of GDP. Taiwan's GDP rose 2.6 per cent in 2019 to US$601.4 billion. Its current population is 23.6 million.
Agriculture receives government assistance including import protection and domestic support. Import protection involves high tariff rates, tariff-rate quotas and special safeguard measures. In 2018, Taiwan’s average tariff on agricultural products was 15.9 per cent, as defined by WTO. Domestic support in Taiwan includes price stabilisation measures, subsidised loans and inputs, and income support for senior farmers. Government intervention continues to focus on rice.
Taiwan is relatively open to foreign investment. Foreign Direct Investment (FDI) stock in Taiwan totalled US$100.9 billion in 2018. The largest foreign investors in Taiwan are the Netherlands, Japan, territories in the Caribbean and Germany. Taiwan has relatively few restrictions, although foreign businesses periodically raise concerns about red tape and the slow progress of deregulation in a number of sectors, including telecommunications and financial services. For the most part, foreign investment application and approval processes are straightforward. Taiwan ranked 13th out of 190 economies in the World Bank's Ease of Doing Business Index 2019.
Following the 2016 election of the DPP, Taiwan has sought to boost economic growth and diversification through its New Southbound Policy. The Policy aims to deepen ties with ASEAN and South Asian nations, as well as Australia and New Zealand, through strengthening economic and trade cooperation, and enhancing institutional, professional and academic interaction.[12]
[12] >
I have considered the country information available and find that it does not support this claim made by the applicant. I do not accept that the applicant has established that economic, social or political conditions in his country are ‘bad’, that they are worsening or that there is ‘hopelessness’ in the Government of Taiwan. I do not accept that the information before me establishes that there is any risk that the applicant would suffer significant harm due to poor economic, political or social conditions in Taiwan as a necessary and foreseeable consequence of him being returned there.
I have found that the applicant could obtain protection from the police in Taiwan such that there would not be a real risk that he would suffer significant harm from money lenders or violent people (including gangs) associated with them if he is returned to Taiwan. I have not accepted the applicant’s general and vague claims that conditions in Taiwan (whether economically, socially or politically) are bad and getting worse or that the government is ‘hopeless’ or subject to a sense of hopelessness by its’ citizens. Consequent on these findings, I find that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of him being returned to Taiwan, the applicant will suffer significant harm, due to his history and fear of money lenders and gangsters or for any other reason. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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.
Anne Grant
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.
…

[2020] AATA 1279

22 April 2020

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