1620161 (Refugee)

1620161 (Refugee) [2019] AATA 5706 (3 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620161
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Denis Dragovic
DATE:3 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 May 2019 at 12:06pm
CATCHWORDS

REFUGEE – protection visa – Taiwan – particular social group – debtors to gangs – borrowers unable to make repayments threatened by debt collectors – complementary protection – effective State protection – less than a real risk of harm – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant S v MIMA (2004) 217 CLR 387
Mehmood v MIMA [2000] FCA 1799
Primatchek v MIMA [2000] FCA 517
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 on 21 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 October The delegate refused to grant the visa on the basis that effective protection measures are available to the applicant.
I sighted a copy of the applicant’s Republic of China (Taiwan) passport and as such accept that the applicant is a citizen of Taiwan.
A s.438 certificate was provided by the Department to the Tribunal after the hearing. A copy of the certificate was sent to the applicant along with a statement indicating that the Tribunal was inclined to accept the validity of the certificate and requested submissions. No submissions were received. The certificate was attached for the purpose of limiting disclosure of a dob-in-letter that undermined the applicant’s credibility. Due to the nature of the details and the source I have given the letter no weight and have accepted the applicant’s claims where they contradict with those of the informant.
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, 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.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.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Evidence and Findings of Fact
The applicant left Taiwan in December 2011 arriving to Australia [in] December 2011. He remained in Australia on various working holiday visas and unlawfully until he applied for a protection visa on the 27 October 2016.
The applicant claims to owe a large debt to gangsters. He fears the gangsters. He fears that upon return to Taiwan his family will be hurt if he does not repay the debt. He estimates that the debt is 600,000 TWD. He claims that he was threatened by two gangs. They said that they would bury him in a grave already dug and that he would have to learn how to eat with his feet implying that his arms would be incapacitated. He confirmed that no one harmed him prior to leaving Taiwan.
The applicant did not report the incidents to the police because he believes that you require hard evidence to submit to the police or an incident needs to occur. In his written statement he claimed that there was corruption in the police force.
He estimates that he now owes between 700,00 and 800,000 Taiwanese dollars. Since arriving to Australia he has saved enough to repay his friends and relatives who lent him money to come to Australia but not to the gangs. I asked why he chose to repay them before the gangs. He responded that because of the compound interest he thought that he would never be able to repay them so he didn’t bother.
I put to him that he had said that he owed 600,000 at the first Tribunal hearing and 800,000 at the second hearing. I challenged his account of the change of the amount owed. He did not provide any credible response other than the gangs can do what they want to. I asked how he knew that the gangs wanted to change how much he owed. He said that he has a friend who is an intermediary. He talked to him just after the last hearing. His friend said that if you want to resolve it all then he owes 800,000. I asked how his friend would know how much it would take to settle the issue with the gangs. He responded that is friend is a part of the loan business and guessed what is required.
The applicant confirmed that the gangs have not contacted him since he was in Australia. He claims that they don’t know that he left for Australia. He said that they last contacted his family one or two years after he left and then stopped contacting his family. At that time the gang issued a threat to him that he comes out of hiding and settles the debt otherwise he’ll be dealt with differently. The applicant said that he believes the way they made the threats it was to both him and his family though nothing happened to them and they haven’t moved.
I have serious doubts about the applicant’s credibility but nevertheless accept that he has a debt of between 600,00 and 800,000 Taiwanese dollars, that he borrowed from money lenders associated with gangs and that they had threatened him and his family in the past. I also accept that he did not go to the police and has saved money but chose to repay his family and friends and that he had not been physically harmed.
Country Information
I summarized to the applicant the following country information. The Taiwanese Ministry of Interior 2018 report[1] of activities included the following information on gangs and loan sharks:
In the area of subduing hoodlums and gangs, the NPA has adopted two approaches: "prevention in advance" and "suppression in hotspots" to fight against organized crime. To this end, guidelines and programs to eradicate organized crime have been implemented, such as the "Intelligence Collection of Organized Crime," "Preventing Gangs from Publicizing Activities," "Check-ups on Publicly Traded Companies," " Zhi-Pian Anti-Gangster Program" and "National Simultaneous Gang Sweeps." In 2017, apart from suppressing organized crime by "3 Strategies about Gang-Sweeping", the NPA also completed the modification of "Organized Crime Prevention Act". The NPA also implemented "Operation Getting Rid of Bullies" in order to prevent gangsters from committing crimes by hiding themselves in specific political parties or civilian organizations. In addition, the NPA will implement strong systematic gang-sweeping strategies to strike on thugs, gangsters' illegal income, gangsters' business and bouncers in 2018.
…
In addition to a total of 39 gang-sweeping operations conducted by county police departments in 2017, the NPA implemented six national simultaneous gang sweeps to safeguard the social security. During the operations, the police arrested 174 high-profile gang leaders and 1,258 gang members. Under the "Operation Searching and Spot Checking against Gangs", the police arrested 2,863 other individuals, and confiscated 128 guns of various models.
…
The NPA supervised all police agencies while they investigated on loan sharks (usury) cases, including high-interest loans and illegal debt collection. In 2017, a total of 1,341 suspects were arrested in 745 cases and the total amount of NT$1,646,760,000 were seized.
[1] 2018 Outline of The Ministry of the Interior: Republic of China (Taiwan), Ministry of the Interior, Government of the Republic of China, November 2018 accessed 18 March 2019
He responded that outsiders only know the bright side of Taiwan. On his level of life it’s very different. He said that others don’t know the power of the gangs. He said that the police will move against gangs only after an incident occurs such as someone being hurt.
I put to the applicant that the United States Department of State Human Rights Report states that Taiwan’s ‘National Police Administration (NPA) of the Ministry of the Interior has administrative jurisdiction over all police units…Civilian authorities maintained effective control over the NPA, and those authorities had effective mechanisms to investigate and punish abuse and corruption. There were no reports of impunity involving the security forces during the year.’[2]
[2] Bureau of Democracy, Human Rights and Labor, Country Report on Human Rights Practices: Taiwan, 2018
The applicant clarified that he is not saying that the police won’t take any action against the gang. He said that if he was injured then the police would take action. If he reported the incident to the police they would create a case file but all they could do is create a patrol around his home. He said that it wouldn’t be enough as they would just drive around his home.
I find that the applicant has access to a state system of protection that is actively working against gangs, has had success in this endeavour, and provides mechanisms through which he could pursue support if he is faced by corrupt officers.
Considerations
In considering whether the applicant’s fear of harm is based upon reasons outlined in s5J(1)(a) and specifically whether there is a particular social group as defined by s.5L of the Act that the applicant would belong to I have considered ‘debtors to gangs’, ‘borrowers unable to make repayments threatened by debt collectors’, and other similar iterations. In these instances the ties that bind the potential group together breaches the guidance provided in Applicant S v MIMA[3] and as legislated in s.5L(d) as the group is defined by a shared fear of persecution. As such the applicant cannot be considered a member of a particular social group. Nor do the circumstances of the case lend themselves to consideration under any other of the Convention reasons.
[3] Applicant S v MIMA (2004) 217 CLR 387 at [36]
Instead, the applicants’ claims will be considered under Complementary Protection. The types of harm that fall under Complementary Protection are exhaustively defined by s.36(2A), specifically that the person will be either arbitrarily deprived of life, the death penalty will be carried out, the person will be subjected to torture, the person will suffer cruel or inhuman treatment or punishment and that the person may suffer degrading treatment or punishment. In this case I find it appropriate to give consideration to the categories of arbitrary deprivation of life, cruel or inhuman treatment and punishment and degrading treatment or punishment based upon past threats along with what can be deduced from country information.
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.
I find that based upon the threats made to date and the country information on the harm gangs inflict the type of harm he potentially faces does constitute significant harm. I now turn my mind to whether there is a real risk that the applicant faces significant harm as a necessary and foreseeable consequence of returning to Taiwan.
As noted above 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 including 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.
I discussed with the applicant that not every government can provide absolute protection and that the key question is whether it is less than a real risk. He said that if there was real protection available he wouldn’t stay in Australia as his family and friends are there. I question his genuineness in making such a statement. I note that in response to having asked why he didn’t take the money he had used to repay his family and friends to negotiate with the gangs he said that he felt sorry to his friends and family. This is not an indicator of someone who feels that they face a real risk of significant harm.
He added that he could go to a member of parliament who would then mediate between the borrower and the gang but he said that this is only if you have money in your hand to repay. He added that he now has only AU$10,000 in the bank. He said that it’s not enough to enter into negotiations with the gangs. I put to him that the amount he has is over 200,000 TWD and he claims to owe between 600,000 and 800,000. He added that he doesn’t think that it’s enough. His lack of willingness to explore that route adds doubts to the claimed level of risk he faces.
In summary, the applicant was not harmed while he lived in Taiwan, his family have not been harmed and they haven’t moved out of fear of any threat. He did not go to the police. The threats to his family have stopped. He has not attempted to repay the gangs despite having funds to do so.
I note that in Mehmood v MIMA, von Doussa J recognised that ‘absolute guarantees against harm are impossible in fact, and are not required in law to negate a real chance of persecution’.[4] Similarly, in Primatchek v MIMA, Madgwick J acknowledged that no country can guarantee protection of its nationals, adding that ‘if there is insufficient evidence as to the identity of persecutors for law enforcement authorities to act on, then no matter how willing and capable such authorities may generally be of protecting a person against persecution, protection will fail. It is not against such irreducible failure to protect its nationals that the Convention is directed’.[5]
[4] [2000] FCA 1799 (von Doussa J, 12 December 2000) at [15].
[5] [2000] FCA 517 (Madgwick J, 24 March 2000) at [14].
In conclusion I find that the limited level of risk the applicant faces together with the state protection which I earlier found to be available to him and fit for purpose reduces the level of risk to less than a real risk. As such I find that the applicant does not face a real risk of significant harm.
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).
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).
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.
Denis Dragovic
Senior 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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2019] AATA 5706

3 May 2019

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