1700087 (Refugee)

1700087 (Refugee) [2021] AATA 843 (4 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1700087

COUNTRY OF REFERENCE: Taiwan
MEMBER:Anne Grant
DATE:4 March 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 March 2021 at 9:53am
CATCHWORDS
REFUGEE – protection visa – Taiwan – particular social group – victim of loan sharks – loans to start a business – attacks by criminal gangs – physical assault – state protection – police action against criminal lenders – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 13 December 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 6 October 2016. The delegate refused to grant the visa on the basis that they did not find the applicant credible and found that there was not a real chance of the applicant being persecuted in Taiwan. In addition, the delegate found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Taiwan, there was a real risk that he will suffer significant harm.
The applicant has provided evidence about his identity. He has changed his name from [Alias 1] to [the applicant]. He has provided evidence to support this change of name and his Taiwanese passport. The Tribunal is satisfied of his identity and that Taiwan is the applicant’s nationality and the receiving country in assessing his protection claims.
The hearing proceeded on 4 February 2020 in person. The applicant attended the hearing to give evidence and make submissions. He confirmed that his representative was not attending (and that he did not wish him to attend) the hearing and that he was ready to proceed. The hearing was assisted by an interpreter in the English and Mandarin languages.
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 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 Taiwan, there is a real risk that he will suffer significant harm.
According to the information before the Tribunal:
·The applicant first arrived in Australia on a Working Holiday (Class TZ Subclass 417) visa [in] September 2010 in the name [Alias 1]. The applicant was granted a further Subclass 417 visa on 19 August 2011 and another on 25 September 2012 in his second name and the name used in this review.
·The applicant departed Australia [in] January 2012 and returned [in] February 2012. He then departed Australia [in] September 2012, returning [in] October 2012 using the name [the applicant]. He has not departed Australia since returning on this date.
·The applicant unsuccessfully applied for [a skilled] visa on 13 October 2014. His application was refused on 2 July 2015. He sought review at the Tribunal which affirmed the Department’s decision [in] January 2016. The applicant’s further judicial review application on that visa was dismissed by the Federal Circuit Court [in] September 2016.
·The applicant lodged his application for protection on 7 October 2016.
According to his application for protection, the applicant was born in Taiwan. He claims to have worked as [an Occupation 1] in Taipei between May 2006 and April 2009 after completing his secondary education at [School 1], Taoyuan City, Taiwan in 2005. He claims to have completed a [degree] at [University 1] in [year].
The applicant’s written claims are as follows:
·     The applicant said he left Taiwan to avoid being harassed and threatened by gangsters. He said that, if he returns to Taiwan, gangsters will constantly threaten and harass him because he owes them a lot of money. He said that so long as the debt is outstanding, the gangsters will keep coming after him and that his life is in danger.
·     The applicant claimed that his dream was to own his own company in Taiwan. As a student he worked in a [specified industry] and continued to do so in Australia while holding a Subclass 417 visa, where he managed to save a lot of money.
·     On a return trip to Taiwan the applicant agreed to act as guarantor for a friend’s investment. Following the expiry of his visa, the applicant returned to Taiwan and found himself constantly followed by gangsters. He subsequently learned that his friend had absconded with the money he borrowed.
·     The gangsters demanded money from the applicant because they could not find his friend. They often came to his house and even beat him. They threatened him that his life would be in danger if he did not repay the money.
·     A friend of the applicant advised him that, if he were to change his name, he could return to Australia on another Subclass 417 visa, which he did (under the name [Alias 1]).
·     The applicant does not believe the police in Taiwan could protect him because they are not always there to do so. He said that the police told him that his dispute was a personal issue between him and his creditors.
·     The applicant does not believe he can relocate within Taiwan as the gangsters are widely connected and could find him wherever he runs. As Taiwan is a small country, he could be found anywhere.
The applicant provided a copy of the delegate’s decision with his application for review. According to that decision, he gave the delegate the following additional information at interview:
·The applicant discussed the investment opportunity for two or three months before deciding to invest in a [business] on January or February 2012. He provided an investment of $[amount] Taiwanese dollars (AUD $100,000) from his savings. His friend borrowed about the same from a loan shark with gangland connections. The [business] never opened.
·The applicant’s business partner was a friend of a friend the applicant knew from his time in the Army. They would often meet at a bar for a drink. The applicant said his friend goes by two names, but he believes his real name to be [Mr A].
·When asked why the applicant would donate his entire life’s savings for a venture with somebody he did not know well, the applicant said he did so because it promised a good return. The applicant said he did have documents, but did not offer to the delegate court and loan documents.
·The applicant said that the gang which is after him is the biggest mob in Taiwan and has the word ‘bamboo’ in their name. He was approached by gangsters at his home two days after returning to Taiwan in September 2012. He said the gangsters told him he owed the money his friend borrowed. They cut his leg with a knife and said that next time it would be his hand or foot. The applicant was treated in hospital but could not offer any medical records.
·The applicant said that the gangsters do not know the details of his family members.
At hearing, the applicant was advised that, in light of the delegate’s refusal to accept any of his claims on the basis that they did not find him to be credible, all aspects of his claims related to his protection application were in issue before the Tribunal. He was advised that the Tribunal had to be satisfied about the truth of his claims and that each of the criteria in the Act was satisfied (as had been outlined in detail at the beginning of the hearing.)
At hearing, the applicant confirmed that he had entered into an agreement with a friend and that they intended to open a [business] in Taiwan. He stated that he signed documents including a guarantee over a business loan that he was not fully informed about and did not understand the implications.
The Tribunal referred the applicant to what he told the delegate about how he met his ‘business partner’ in the army and did not know him well. However, the applicant gave evidence that he actually met his business partner in Australia. He was also here on a working visa and the applicant was working with him and living close by in [Town 1]. He was introduced to him by a friend who he knew from the army. They discussed opening the business and this man claimed to have good contacts in Taiwan and convinced the applicant that a [specified] business would be lucrative. They then travelled back to Taiwan together when the business partner’s working visa ended. This was in January 2012. Whilst in Taiwan, the applicant signed some documents, but he was not really sure what they were about, and he said this was because he was young and naïve. The applicant advanced his savings of [amount] New Taiwan dollars ($NT) (approximately AUD$10,000) and then returned to Australia. The applicant’s evidence was that he had saved up his investment money from his employment both in Taiwan and in Australia. His friend was to set up the [business] and borrowed money to do so. His friend was borrowing more than [amount] $NT (approximately AUD $100,000) to finish the set up.
The Tribunal noted that according to the record of his evidence in the delegate’s decision, the applicant claimed to have advanced the equivalent of AUD$100,000 and not $10,000 as claimed before the Tribunal. He said he could not explain this; and appeared genuinely surprised at the larger sum reported in the delegate’s decision when it was raised with him. The applicant then suggested the possibility that the amount of his own investment and the amount borrowed by his friend might have been confused, either through mistranslation or otherwise. His friend borrowed approximately [amount] $NT, but he himself only advanced AUD$10,000. He gave evidence that he has never had a sum as large as $100,000 Australian dollars available to him to invest. His investment lump sum was required as soon as the loan was signed. However, as noted above the applicant had also gone guarantor for the loan organised by the business partner and his evidence is that his partner borrowed that money from a gang related moneylender.
At hearing, the applicant gave evidence that, after he returned to Australia in January 2012, he had some conversations with his business partner, who was allegedly organising contracts and finding staff in Taiwan. After February 2012, he stopped hearing from him and couldn’t get any response to texts or emails. He began to be concerned; and then his working holiday visa expired and he travelled back to Taiwan in September 2012. When back in Taiwan, he was confronted by men who claimed to represent the moneylender from whom his business partner had borrowed, and who showed him the loan guarantee documents he had signed and demanded that he repay the debt. When he told them he didn’t have that money, they beat him. The applicant gave evidence that they went away after threatening him that if he didn’t pay the amount due in one month, they would cut off his arms.
He gave evidence that he was unable to find his friend on return in Taiwan. He has not been able to locate him since. He doesn’t know where he is or ‘even if he is still alive’. When he went back to Taiwan in September 2012, he initially went to his parents, but then went to stay with a friend and arranged to come back to Australia after he had changed his name. The Tribunal wondered about the changed name and whether it gave him any added protection from the money lender, but the applicant claimed it did not, because the debt collectors already knew about his new name. He did not know how they found out about it.
The applicant claimed that he had sent some money to Taiwan to his mother to be given to the moneylender. She gave it to a friend who took it to the moneylender. He claimed that in this way, he paid back about AUD$40,000 since being in Australia (around [amount] NT$). However, he could not be sure when that happened. When asked to give details, he said that a friend agreed to take the money to the lender and ask that they accept it in final settlement and stop pursuing him - but in response the moneylender refused to forgo the rest of the debt and actually beat up his friend. The applicant also claimed that the applicant’s family has moved to avoid the moneylender. His evidence is that his family moved from their home to his Aunt’s home, then to a friend’s home and finally to a rental property. All of these addresses were still in Taoyuan, where his parents still live. He gave evidence that they have not been confronted by or heard from the moneylenders since 2014. The applicant also gave evidence that when he went into hiding before returning to Australia, he stayed with friends in Taipei. The moneylenders/gangsters did not find him there. However, he still fears that if he returns, he will be located and harmed by the moneylenders. The debt with interest will be very large now and he has no chance of repaying it.
The applicant provided copies of some translated documents at hearing - namely a project quotation and court order related to a contract breach in the fit-out of a [business] with a company called [Business 1]. He gave evidence that this was what his friend organised while the applicant was still in Taiwan, and the applicant had signed the work order. However, his business partner then disappeared; and they have been sued for completion of the contract. The applicant claimed that he did once have a copy of the loan contract with the moneylender, but his copy got lost when he moved around in Taiwan before returning to Australia. He claimed that he had given the documents tendered at hearing to his lawyer to provide to the Department of Home Affairs ‘long ago’ and was surprised to hear that it was not on the file.
The quotation amount on the [Business 1] paperwork is [amount] $NT. The civil ‘claim for pay warrant’ includes information that the proprietor of [Business 1] undertook a renovation project of [the applicant’s business] at [address] in Taoyuan County for $NT[amount] on [a date in] 2012. On the contract signing date, according to the warrant, an initial amount of $NT[amount] was paid. The claimant claims that they completed the work but were never paid the balance. The persons owing the debt on the warrant are [Mr A variant] and [Alias 1 variant].
It is noted that the details of [Alias 1 variant] on this document bear the same birthday and ID card number as the applicant has provided and is the first of the two names used by the applicant. The name of the applicant’s business partner on this document bears a phonetic resemblance to the name given by the applicant to the delegate for his business partner ([Mr A]) if the names are transposed ([Mr A variant]).
Consideration
As discussed with the applicant generally at hearing, there are some marked and confusing differences between the applicant’s written claims and the evidence he has given at various stages in the review process. It will be noted from the discussion of the evidence given above that in particular, his explanation of how he came to invest in a business, the identity of his business partner and how he knew him, the amount he invested and the documents he signed have all been inconsistently described. He has also inconsistently described the harm he claims to have experienced at the hands of the lenders. Some of those inconsistencies (particularly in discussing the size of the investment made by the applicant) are potentially due to mistranslation or misunderstandings on the part of the applicant in his interview with the delegate and the Tribunal has made some allowance for that potential.
Nonetheless, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is "well-founded" nor that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that he or she satisfies all of the required statutory elements.

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, 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. 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.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made.
This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
Bearing in mind the information and evidence before it as a whole (and the consistency with which the applicant has described becoming involved in a business venture that failed), the Tribunal accepted as credible the applicant’s evidence that he entered into a business agreement to establish a [business] in Taiwan with a Taiwanese man [Mr A] he came to know in Australia when they were both here, working in [Town 1]. The Tribunal accepts also that on returning to Taiwan with that man in January 2012, he invested [amount] NT$ (approximately AUD$10,000) and not the equivalent of AUD$100,000 as recorded in the delegate’s decision. On considering the court documents he has now tendered, the Tribunal also accepts the applicant’s evidence that he signed some documents which tied him to at least one contract taken out by his business partner, namely the [business] fit-out contract of over more than [amount] NT$. The court documents provided by the applicant at hearing suggest that the business progressed to at least the fit-out stage of the premises – and that the sum agreed on that contract has not been paid and legal proceedings taken to enforce recovery of the contract sum. This information is consistent with the applicant’s claim that the business partner disappeared with borrowed funds intended to pay for that fit-out even before the business commenced, leaving him with the consequent debts both of the business and of the loan.
The Tribunal accepts that the applicant owes a civil debt to a company known as [Business 1] over a failed business venture in the amount of around [amount] $NT from 2012 which has been litigated in Taiwan courts during his absence.
At hearing the Tribunal informed the applicant that, after hearing and considering his evidence (including the written documents he provided at hearing) it accepted that he owed money to a design business and to a moneylender as guarantor in Taiwan due to a failed [business]. The applicant gave evidence that he does not fear any harm from the design business, who have used and would probably continue to only use legal means to try to recover their debt. The Tribunal accepts that there is a real chance that the applicant will face demand for payment, civil litigation and potentially bankruptcy proceedings from [Business 1] if he returns to Taiwan. However the Tribunal notes the applicant’s evidence about not fearing harm from that creditor. It is the ‘gangster’ moneylenders that he is afraid of, and he claims to fear that they will assault or kill him if he fails to immediately make arrangements to repay what they claim is owed.
The Tribunal has borne in mind his youth when he signed guarantee documents and the fact that he was out of the country when his business partner ‘disappeared’ and almost entirely for the period since then. Having carefully weighed his evidence, the Tribunal does accept that the applicant owes some money to a moneylender with gang associations due to his having guaranteed a loan for his failed business partner, which that partner has since reneged on repaying. The Tribunal does not have sufficient information before it to be satisfied of the specific amount or terms of that loan and debt, or even that the lender was in fact an underground lender. His evidence before the Tribunal was that he didn’t know much about the lender at all and that he had seen a written contract which suggests that it was a formal business contract and not an underground or illegal loan. In relation to the partial pay down of that debt, the applicant was vague about when his friend paid off part of the debt on his behalf and was beaten by the moneylenders. In the context of his statement that his family have had no contact with them since 2014, the Tribunal accepts and proceeded on the basis that it was in or around 2014 when that occurred.
The Tribunal considers that the applicant’s claims about being assaulted by the moneylender/gangsters were inconsistent and surprisingly vague. In his written claims, he said ‘he was beaten’ and repeatedly followed. The applicant told the delegate that he was assaulted by the debt collectors by being cut in the leg and that they then threatened to cut his arms and feet if he didn’t pay within one month. He told the delegate that he sought medical treatment but was unable to provide any evidence of that treatment. He gave evidence to the Tribunal that they beat him up (but did not mention being cut with a knife) and threatened to cut off both his arms if he failed to pay within one month (which implies it was only one occasion, that he was given time to pay and after which he fled). The applicant’s evidence suggests that there was only one occasion where he was confronted and threatened by the moneylenders, leading to him ‘running and hiding’ from them with friends and in Taipei. After considering this aspect of the applicant’s claims, the Tribunal accepts that the applicant faced a demand for payment from the moneylender or people associated with them and a threat that he would be harmed if he did not pay within a month. However, the Tribunal does not accept the applicant’s claim to have been physically assaulted as reliable. The Tribunal has reached that conclusion after considering the vagueness of that particular evidence and the disparity between the versions of harm (and threats of harm) he has provided. The Tribunal does not accept that he was repeatedly followed or that the moneylender ‘often’ came to his home as he claims in his written application. The Tribunal finds that this aspect of the applicant’s claim was exaggerated by him to strengthen his claim for protection.
The Tribunal does not accept that the applicant was immediately faced with demand for payment on his return in September 2012 (within a day or two of him returning home) or that he was physically attacked when he was unable to pay the amount owing to debt collectors. The applicant’s claim to have been independently discovered and assaulted so soon after his return to Taiwan by the moneylenders is implausible and the Tribunal rejects it. Whilst the Tribunal accepts that the applicant faced demand for payment of debts in 2012, potentially from both the design company and the moneylender, it considers that he did so only after his return to Taiwan was discovered due to him making enquiries about the location of his friend and the fate of his business.
The Tribunal discussed with the applicant general country information which reflects that Taiwan has one of the lowest violent crime rates in the world, and that Taiwan police and authorities have conducted multiple operations aimed at reducing violence and gang related crime. The Tribunal noted that the general country information suggests that although violent crime does occur in Taiwan, it is not as common or as immune from legal punishment as the applicant suggests. The Tribunal noted that in recent years Taiwan has been considered to be one of the top three safest places in the world. Multiple news reports (including during the past year) reflect that Taiwanese authorities are targeting gangs and moneylenders, arresting and prosecuting those who use force to recover debts and also arresting police with links to or who are corrupted by same. The Tribunal noted that this information also suggests that the Taiwanese Government and police would be able and willing to provide protection to the applicant from any debt collector who threatened to harm the applicant in any way. The applicant claimed that the Taiwanese government hides the truth about crime in Taiwan. He expressed a fear that if he returns to Taiwan, he will be found and harmed by gangsters, regardless of what the country information reflects.
The Tribunal also discussed with the applicant that it did not seem plausible that his creditors could find him throughout Taiwan, given that they have not contacted or threatened his family in over 6 years and also because even on his own evidence, they did not ever locate him in Taipei - even though they knew he was in the country. The applicant conceded that it may be right that they cannot find him when he returns – however he did not want to test that possibility.
Is there a real chance that the applicant will suffer persecution in Taiwan due to debts he owes?
The Tribunal has accepted that the applicant was a partner in a failed business venture to open a [business] in Taiwan and that his business partner failed to complete contracts or to open the [business] when expected in 2012 after the applicant had invested his savings of [amount] $NT in the business. The Tribunal has accepted that he owes at least [amount] $NT as a co-signer of a fit-out contract for the [business] which has been litigated in the Taiwanese courts. Based on his own evidence on this aspect of his claims, which it accepts, the Tribunal concludes that the applicant may face demands, civil proceedings or bankruptcy aimed at recovering money claimed against him by [Business 1] but that he does not fear harm from that creditor, who the applicant believes would only pursue lawful recovery of outstanding debt. The Tribunal considers that facing civil litigation and lawful recovery options does not involve causing the applicant serious (or any) harm. The Tribunal finds that there is not a real chance that the applicant will suffer serious harm as a consequence of that particular debt, now or in the foreseeable future.
In relation to the claim from the moneylender and gangsters associated with them, the Tribunal considers that, based on the evidence accepted on this claim, it is possible that a debt is owed and that the moneylender or gangsters associated with them would be interested in finding the applicant in order to recover that outstanding debt if he returned to Taiwan. However, the Tribunal notes that the applicant has not had any contact with the moneylender (or associates of theirs) since 2012 and his family has not had any contact with them since 2014. According to his evidence, the moneylender or gangster associates have not contacted the applicant nor made any demands of him since that time. Neither have they contacted his parents, who remain in Taoyuan (where the moneylender is located) to enquire about the applicant, threaten or make demands of them. The Tribunal has not accepted that the applicant has ever been physically harmed by the moneylender or people associated with them, but has accepted that he faced a demand for payment and the threat of harm if he failed to pay. He has repaid some of the debt since he has been in Australia and is unaware if his business partner has repaid the balance of the debt or made adequate arrangements to do so in his absence. Further, the moneylender and their associates were unable to locate him in Taipei even though they apparently knew that he was in the country in 2012. The Tribunal finds that the applicant has not established that the moneylender has any capacity at all to find and harm the applicant now or in the reasonably foreseeable future if he were to return to Taiwan. In fact, there is no information before the Tribunal which suggests even that they have been trying to locate, threaten and harm him in the years of his absence from Taiwan. The Tribunal noted and has also considered that the applicant gave evidence that he would not return to his home area of Taoyuan where the moneylenders were located if he were to return to Taiwan.
The Tribunal discussed generally the country information below with the applicant and read to him from some of the reports referred to therein. He was informed that the general country information does not reflect that gangsters or violent criminals in Taiwan are able to harm citizens with impunity over debts or for any other reason. In fact, the country information reflects that the Taiwanese government and police have made significant inroads into violent crime in Taiwan over the past several years, arresting and prosecuting members of gangs and violent criminals – even including corrupt police who worked with them – in the period since he departed the country.
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 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.”[8].
[8] ‘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 Tribunal has taken into consideration the whole of the information and evidence before it, including the matters raised above in paragraphs 40 and 41 and the country information referred to and discussed generally with the applicant at hearing. Whilst the applicant may have a genuine fear that, at some point in the future, he will be harmed by the moneylender or gangsters associated with them if he returns to Taiwan, the Tribunal finds that there is not a real chance that the applicant will suffer serious harm (that he will be harassed, threatened, assaulted or killed) from the moneylender (or gangsters associated with them) if he returns to Taiwan, now or in the reasonably foreseeable future – and even after considering the possibility that the debt is now larger due to interest since his departure.
The Tribunal also notes that the persecution claimed by the applicant is because of a business contract (or debts) which are unpaid. The applicant fears being harmed as a result of a personal loan/business agreement and that he would be pursued for that reason and not due to his race, religion, nationality, or because of his membership of any particular social group (such as business debtors) or because of his political opinion. The Tribunal finds that the essential and significant reason for the harm faced by the applicant is not one or more of the reasons in s.5J(1)(a).
The Tribunal has considered the applicant’s claims individually and cumulatively but is not satisfied that the applicant has a well-founded fear of persecution in Taiwan, even when those claims are considered cumulatively. Consequently, the Tribunal concludes that the applicant does not have a well-founded fear of persecution in Taiwan due to civil litigation from business creditors and or from moneylenders (or gangsters associated with them) seeking to recover debts or money on a loan which he guaranteed in 2012. No other claims were raised by the applicant or are suggested on the information and evidence before the Tribunal.
The applicant is not a refugee as described in s.5H(1)(a). 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
The Tribunal refers to the discussion of the applicant’s claims above and relies on its’ reasoning and findings made in considering his claims to be a refugee. 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.
The Tribunal has found that the applicant owes business debts to a design company relating to a failed venture to open a [business] in Taiwan. The Tribunal has found that there is not a real risk that he will face any harm from that creditor but that he may face demands for payment, civil litigation and possible bankruptcy from the design company if he returns to Taiwan.
The Tribunal has considered the real risk of harm facing the applicant from his business creditors (that is, the design company) against the exclusive definition of what constitutes ‘significant harm’ in s.36(2A). The Tribunal finds that there is not a real risk that the applicant will be subjected to the death penalty, that he will be arbitrarily deprived of his life or that he will be tortured for any reason. The Tribunal has considered the definitions of ‘cruel and inhuman treatment or punishment’ and of ‘degrading treatment or punishment’ in s.5 of the Act. The Tribunal is not satisfied that verbal harassment and demands for payment or civil litigation which the applicant potentially faces on his return (even if the conduct were to include threats to seize property in payment of debts and bankruptcy) would amount to causing him severe pain or suffering (whether physical or mental) or that such demands and harassment as he may face (demands and civil litigation or the threat to seize property and bankruptcy) would ever be reasonably regarded as ‘cruel or inhuman’ in nature. Similarly, the Tribunal is not satisfied that demands and verbal harassment for payment or litigation would reasonably cause or be intended to cause the applicant extreme humiliation which is unreasonable, even if it occurs on his return, or that it would be reasonably considered to be degrading treatment or punishment. Based on the information and evidence before the Tribunal, the harm feared by the applicant from the design company or people associated with them and of which the Tribunal has found he is at real risk does not satisfy the definition of significant harm in s.36(2A) of the Act.
In relation to the applicant’s claim to fear harm from a moneylender or gangsters related to them, the Tribunal has found, for the reasons given above, that there is not a real chance that he will suffer serious harm due to the loan he guaranteed on behalf of his business partner. The Tribunal has taken into consideration the various findings discussed earlier in this decision when considering the real chance of harm. Bearing in mind that the real risk test is the same as the real chance test, the Tribunal finds that there is not a real risk that the applicant will suffer any harm (significant or otherwise) from the moneylender or from gangsters associated with them as a necessary or foreseeable consequence of him being returned to Taiwan.
The applicant did not raise any other claims to fear harm of any kind in Taiwan and none arise on the information before the Tribunal.
The Tribunal concludes that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Taiwan, the applicant will suffer significant harm for any reason.
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).
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.
…

[2021] AATA 843

4 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice