1701034 (Refugee)

1701034 (Refugee) [2020] AATA 3431 (10 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1701034

COUNTRY OF REFERENCE: Taiwan
MEMBER:Anne Grant
DATE:10 July 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 July 2020 at 12:34pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – fear of harm from moneylenders and hired debt collectors – fear of physical harm and violence – effective state protection – police action against criminal lenders – credibility concerns – inconsistent and confused evidence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, 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 17 January 2017 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 25 February 2016. The delegate refused to grant the visa, finding that the applicant’s evidence was ‘vague and implausible’ and lacking in credibility. The delegate did not accept that the applicant had a real chance of being harmed by loan sharks or debt collectors in Taiwan, or that there were substantial grounds for believing that the applicant faces a real risk of suffering significant harm as a necessary and foreseeable consequence of being returned to Taiwan. The applicant provided a copy of the delegate’s decision to the Tribunal when he sought review of the delegate e’s decision on 20 January 2017.
The hearing proceeded on 11 June 2020. I exercised the Tribunal’s discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. I determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicant had indicated in his hearing response that his migration agent would not be participating in the hearing, and he was not present. The hearing was assisted by an interpreter in the English and Mandarin languages. The telephone conference proceeded without incident or connection interruption.
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.
The information before me discloses that the applicant entered Australia [in] May 2013 on a Taiwanese passport. He claims, in his application for protection, to be a national of Taiwan. I am satisfied that the applicant is a citizen of Taiwan and that Taiwan is the country of his nationality and the receiving country for the purposes of considering his claims for protection.
The applicant’s migration history since first arrival in Australia is relevant. The applicant arrived in Australia on a Working Holiday (Class TZ Subclass 417) visa [in] May 2013. He departed Australia [in] April 2014 and returned [in] August 2014. He has not departed Australia since returning on this date. He lodged his protection visa application on 26 February 2016.
The applicant’s written claims were as follows:
·     The applicant left Taiwan to avoid moneylenders and harm from debt collectors. He said that he will face serious harm from moneylenders and hired debt collectors because he could not afford to repay a debt accrued from his former business in Taiwan.
·     After the applicant closed his business, moneylenders and debt collectors came to his home. He was taken and they forced his parents to pay some money towards repaying the loan.
·     The applicant came to Australia with the intention of repaying the debt but was told by the moneylenders that the amount owing had increased because he did not pay enough to cover the interest.
·     When he returned to Taiwan, the debt collectors beat the applicant and demanded money through violence. The applicant said he has experienced serious harassment, intimidation, beatings, and false imprisonment.
·     In order to protect the applicant’s family from being harassed and harmed, the applicant’s stepfather told the moneylenders that the applicant had severed all relations with his family and that his family has nothing to do with him. For safety, the applicant then decided to return to Australia.
·     The applicant sought help from his family to repay the loan but they were not able to help him.
·     He was unable to move or relocate to another part of Taiwan because the moneylenders have underworld connections throughout the entire country, and gangsters help each other to collect debts.
·     The applicant does not believe the authorities will be able to protect him as the debt collectors and moneylenders can harm or abduct him at any time.
As noted above, the applicant provided to the Tribunal a copy of the departmental delegate’s decision in this matter at the time he lodged his application for review. According to that decision, the applicant was interviewed by the delegate and provided the following information and evidence to the delegate in support of his claim:
·The applicant borrowed money to start a [business], which opened in January 2011 but closed in May 2011 due to low revenue and harassment by creditors.
·The applicant does not know the name of the moneylender, but was given a cheque for $2 million Taiwanese dollars from an underground lender. The people demanding repayment were from the triad.
·The applicant said the lenders became violent once the business closed. He was kidnapped and detained for a week in October 2011 and was cut twice around the chest. Holes were drilled in his teeth. He was released when the debt collectors realised there was no point keeping him any longer.
·The applicant’s injuries were not treated because he was told that something worse would happen if he went to the authorities or got medical help. He went to the police after his release, but the police would not make a report.
·During the four months he returned to Taiwan in 2014 he was kidnapped again and bashed. He was held for one or two days but was again released so he could earn money to service the loan.
·His parents were threatened while he was in Australia. His parents were bashed a few times but “block[ed] the house” so the debt collectors could not get inside. Harassment of his family stopped when his stepfather told the debt collectors that the applicant had severed ties with his family, but in November 2016, after the applicant had not made a repayment, the debt collectors paid his family a visit.
·He did not leave until May 2013, despite having experienced violence, because he wished to stay and protect his parents, but left when told by a friend that it is easier to earn money in Australia.
·He returned to Taiwan after one year because he was only being paid $13 an hour in Australia and could not afford even the interest on the loans. He worked for [Business 1] carrying boxes but still could not afford to repay the loan. This, coupled with constant harassment from, (and being kidnapped by) the debt collectors caused him to return to Australia in August 2014.
At hearing, the applicant gave evidence that he had borrowed 2 million Taiwanese dollars (NT$) from a money lender for a business, and that he could not pay. However, his evidence about the business and what happened to him and his family in Taiwan was significantly different than he gave to the delegate. He said he and two or three people decided to start [an enterprise] as a start-up business in about 2011. The applicant provided the NT$2 million. The partners also contributed financially, but just smaller amounts towards the business – around NT$100,000 or NT$200,000 each. The idea was that they would put all the money together, one person (the applicant) would borrow more money and they would jointly repay the debt. Interest on the loan was 10% per month. They expected to make around NT$500,000 per month and planned to pay the debt off within six months, but in the first month they only made NT$300,000 and then much less than that in the second month. Because the interest got bigger and bigger, his partners realised that they were in trouble and ran away, leaving him to deal with everything.
I asked the applicant for more information about the business – such as how many [employees] they had, and whether the ‘partners’ all worked in the business or kept other jobs. Each time I asked for that information, the applicant responded with evidence about the moneylender harassing him but did not answer any questions about the operation of his business. I tried asking the question in several different ways. I am satisfied that his lack of response was not due to him being unable to hear or understand my questions, given that I rephrased them, and he responded to each question - but each time he gave an answer which related only to the moneylender and not to the business.
The applicant claimed that the moneylenders started to send people after him because he was not paying. However, he had no assets and no money to pay the debts. He fears that if he returns, they will come after him, bash him up, and maybe kill him. I asked the applicant about the harm he had experienced in Taiwan. He said the he was beaten up when he returned to Taiwan in 2014. The applicant’s evidence during the hearing about how and when he was physically harmed by the money lenders was confused. When asked for details about the harm, he said that he was bashed up, locked up and threatened to be killed with a knife by the money lenders when he didn’t pay. They menaced him with baseball bats. He gave evidence that he was not in fact ‘cut with a knife’ as is claimed in his written claims and as he told the delegate. He said that they came to threaten him almost weekly. If he tried to move, they would have found him and been even angrier. He later said that he did try to move to more remote areas where he got some [casual] work, but they found him there after about a month. He said he did not go to the police, saying that the police consider these types of issue to be ‘your’ problem. The money lender said they would kill him if he went to the police and he knew he wouldn’t get any help from the police anyway.
I discussed with the applicant that the ‘business model’ of the money lenders in killing or even beating up borrowers so badly that they could not earn money to repay a debt seemed to be a poor business model – how would they ever make money or recoup their investment? The applicant responded that the way they work is that they make money from the interest because it is so high. In less than a year they get back the equivalent of the principal and then they keep getting paid because the debt never reduces. The applicant claimed that the lenders never really expect to get the principal back. I noted that in the applicant’s case, however, the lenders had not even recouped close to the original loan amount from interest costs or repayments, and he agreed.
The applicant said that he came to Australia because he heard it was easier to make money. When he first travelled to Australia, (in May 2013) he was only able to find low paid ‘illegal’ jobs and could not earn enough money, so he returned to Taiwan [in] April 2014. When he went back to Taiwan, he claims the creditors were still looking for him.
The applicant later said that most of the violence that happened to him occurred when he went back to Taiwan in 2014. It was noted that he had told the delegate that he was cut with a knife and holes were drilled in his teeth in October 2011, and he did not provide a responsive answer, other than saying that that occurred in 2014. He claimed at hearing that one time when the lenders kidnapped him, they demanded that his family pay NT$20,000, and that was how ‘he escaped and was able to leave the country’. On that occasion, they did pay - but he left the country after that, and his family told the money lenders that they had severed all ties with the applicant and had no more to do with him. The lenders have not demanded money from them since then. The applicant had told the delegate that his family had been beaten up several times but his evidence before me was that they had not, and he restated that evidence even after that discrepancy was pointed out to him.
In relation to having holes drilled in his teeth, I asked the applicant why he had not mentioned that harm earlier in his evidence when I asked about the physical harm inflicted on him by the money lender and their ‘enforcers’. He said that it did happen; but he didn’t mention it because he couldn’t prove it - his teeth are in decay. I noted that the delegate had not found that evidence credible (particularly that he wouldn’t receive medical treatment after such an attack) and the applicant claimed that it did happen in 2014 when he returned to Taiwan, because they were angry that he had run out on the debt and so much interest had accrued. He didn’t get medical treatment because he was afraid. When I asked if he had received treatment once he arrived in Australia, the applicant’s response was that he cannot prove this incident happened to him.
The applicant claimed that he does not have any contact with his family in Taiwan because of a fear that the money lender will harass them. It was noted that his alleged persecutors would have no way of knowing that he was calling his family; but the applicant suggested that he keeps away from them to protect them. He gave evidence that he last had contact with them in May 2014 when he went back to Taiwan. When I asked how he could know that him leaving has kept them safe if, as he claims, he has not had any contact with them, the applicant said he believes it is for the best that he has no contact with them.
The applicant’s evidence before me was that he is not sending any money back to Taiwan to reduce the debt. He said that when he first came to Australia, he didn’t have the money to send. Since his return in 2014, he has not sent money because he still doesn’t have it and has had no contact with his family. I noted that he told the Delegate that in 2016, when ‘he hadn’t made a payment’ his parents were menaced again, which is in direct conflict with the evidence he gave me on this point and suggests he had contact with them after 2014 and also paid back some money. The applicant repeated that he has not had contact with his family since he returned to Australia in 2014.
I raised with the applicant that the country information I had considered suggests that the Taiwanese government and police have taken strong action to arrest and control violent offenders, including money lenders and corrupt police over the past several years. I noted that Taiwan has achieved a significant reduction in the violent crime rate and that many reports reflect that gangsters and violent offenders are routinely arrested and prosecuted for the crimes they commit. The applicant said that he had heard such reports also but believes that they are merely ‘advertising’ by the police and not reliable. He believes that the gangsters are linked to the police and that the police will not protect you.
Consideration
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: type="1">
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 <
Whilst the general country information suggests that violent crime linked to organised crime, (including money lenders and debt collection,) does exist in Taiwan, (and did exist at the time the applicant came to Australia) it also reflects that such conduct is not tolerated by the police and authorities in Taiwan and that significant reductions in violent crime have been achieved by concerted and extensive action against violent gangs and perpetrators over recent years (including against corrupt police). I discussed this country information generally with the applicant who conceded that he had heard similar information about Taiwan but claimed not to believe that it was reliable.
I have considered the applicant’s evidence at each stage of the review. The applicant’s detailing of the significant events in his claim has been inconsistent and confused. For example, he told the delegate that he was cut twice on his chest and holes were drilled in his teeth in October 2011, before he left Taiwan for the first time. He told me that he was not ever cut with a knife and that the holes were drilled in his teeth when he returned to Taiwan in 2014. His evidence to the delegate suggests that he made payments toward the loan from Australia; but when this was put to him at hearing, he told me repeatedly that he had never done so. He told the delegate he did go to the police, but told me that he had not; as ‘there was no point’; and he thought it would make the moneylenders angrier. I raised these issues with the applicant at hearing but he did not provide an explanation for the inconsistency of his evidence. I also found his unwillingness and inability to discuss the specifics of his business (such as staffing, operation and the roles of himself and his partners in the day to day management of the business) to be so troubling that it causes me to doubt that there was in fact a business at all.
In relation to threats to his family, I note that in evidence to the delegate, the applicant claimed that they had been ‘beaten up’ a few times but had ‘blocked’ their home and that the money lenders had visited them after he came to Australia (in 2016) when he had failed to make a payment. He told me that he doesn’t have any idea what has happened to his family as he has not had any contact with them since he left in 2014, and as noted above, also that he had not sent any money to the moneylenders from Australia. These inconsistencies were also raised with the applicant but again he did not provide any explanation for the inconsistencies, just relied on the evidence he had given to me as the ‘correct’ situation.
The applicant’s evidence as provided at claim, before the delegate and before me has been inconsistently put and lacking in expected detail about significant matters such as how his business functioned and when (and whether) physical abuses by alleged money lenders and their associates occurred, whether he has reported the threats and attacks, whether his family have been targeted (and when) and whether he has repaid the debt at all from Australia. Consequently, and as noted at hearing, I have real concerns about the reliability of the applicant’s claims and evidence. Those concerns relate to whether the applicant was being truthful about having started a business, borrowed money from a moneylender, what it was borrowed for, that he was abducted and beaten up by ‘mobsters’ or gangsters associated with the moneylender (including being beaten, cut with a knife and having holes drilled in his teeth) or that his family paid a sum of NT$20,000 to secure his release from an abduction (in either 2011 or 2014) or that they were beaten up or threatened by the moneylenders at any time. I also note that in addition to finding his claims not credible, the delegate also found that the applicant’s reason for travelling between Taiwan and Australia was to earn money and not because he feared harm from money lenders or debt collectors. I concur with that assessment because I consider that it is implausible that the applicant would voluntarily return to Taiwan in 2014 if he had actually experienced the threats and harms he claims to have suffered in Taiwan, and if he genuinely held a fear of harm from money lenders. After all, if his evidence before me was reliable, the money lenders would have an even more powerful motive than before to resume their assaults on him because he had entirely abandoned responsibility for the loan since 2013, and he still owed them virtually the entire principal and interest on a 120% per annum loan of NT$2,000,000 borrowed in 2011.
I consider that the inconsistencies and lack of detail as noted above in the applicant’s evidence are not explained by the simple passage of time, or the possibility that his memory has become clouded, nor are they explained by language difficulties. The applicant did not claim that he had forgotten or was confused about any of his evidence before me or before the delegate, even when those inconsistencies were discussed with him.
Having carefully considered his evidence, I am not satisfied that the applicant’s evidence and claims are credible. I do not accept that he borrowed and owes a large sum to a moneylender in Taiwan, that he was attacked, beaten, abducted and physically harmed by the moneylender or people associated with them in either 2011 or 2014 or at all. I do not accept that the applicant’s family paid a ransom for him to be released from abduction or were beaten due to the debt at any point.
I do not accept that there is a real chance that the applicant will be persecuted by money lenders or people associated with them in Taiwan, now or in the reasonably foreseeable future. The applicant raised no other claims and none are raised on the information and evidence before me. I find that the applicant does not have a well-founded fear of persecution in Taiwan, and does not satisfy the criteria in s.5J(1)(b). He is not a refugee as described in s.5H.
The applicant does not satisfy the criteria in s.36(2)(a).
Complementary Protection
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.
Bearing in mind that the real chance test is the same as the real risk test, I refer to and rely on my assessment of the applicant’s claims above. I have not accepted any of the applicant’s claims. I find that there are not substantial grounds for believing that there is a real risk that the applicant will face significant harm (or any harm) in Taiwan from a money lender or any person associated with them as a necessary and foreseeable consequence of him being returned to Taiwan.
No other claims were raised on the information and evidence before me. I conclude that the applicant does not satisfy the criteria in s.36(2)(aa).
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or 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 3431

10 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice