1702769 (Refugee)

1702769 (Refugee) [2021] AATA 1187 (7 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702769
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Anne Grant
DATE:7 April 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 April 2021 at 9:34am
CATCHWORDS

REFUGEE – Protection visa – Taiwan – fears harm from debt collectors – mother’s criminal and financial misconduct – absence from Taiwan over many years – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5,36, 65, 499
Migration Regulations 1994, Schedule 2
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 19 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 7 June 2016. The delegate refused to grant the visa on the basis that they did not find the applicant’s claims credible and found there was not a real chance that the applicant would be persecuted if she returns to Taiwan. In the alternative, the delegate found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Taiwan, the applicant would suffer significant harm.
The hearing took place on 9 February 2021. The applicant attended the hearing to give evidence and make submissions about her claims. The hearing was conducted with the assistance of an interpreter in the Mandarin language.
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 her being returned to Taiwan, there is a real risk that the applicant will suffer significant harm.
The applicant arrived in Australia on a Working Holiday visa [in] June 2013. She has not departed Australia since that date. She applied for a protection visa on 22 December 2015.
The applicant provided a statement of written claims with her application for protection. The applicant also provided a further statement to the Tribunal on 21 February 2017.
In a statement attached to her application for protection, the applicant made the following claims (in summary):
·She is seeking protection in Australia under section 36(2)(aa) of the Migration Act 1958 under grounds that there is a real risk that she will suffer significant harm if she is returned to Taiwan.
·When she was a child her mother owned a [store], which operated until the applicant was [age] years old. Her mother borrowed money from a friend who she believed she could trust, but the lender turned out to have connections to underground banks.
·The applicant’s mother could not repay the full amount of the loan, so the moneylender sent people to the applicant’s house to threaten her family. The debt collectors assaulted the applicant’s father but left after the applicant’s family called the police. However, the men returned the following day.
·One night, the applicant’s neighbour warned the family that there was a man standing outside with a gun. They waited until the man had left and then secretly ran away.
·The applicant had to work to support the family but was found by the debt collectors, who followed her home. She was forced to quit the job and the family had to move house again.
·The applicant’s life has been changed dramatically by the threats and abuse. She cannot leave the house and when she meets new people she constantly lies about her address and telephone number out of fear the debt collectors would find her.
·The applicant cannot afford to live in Taiwan as there is no low-income wage protection or medical assistance there.
·The applicant is afraid she will be kidnapped and sold into prostitution if she returns to Taiwan. Her parents have been forced to move around the country and she is unsure of their whereabouts. Because she worked in her mother’s [store] everyone in her community knows of her situation and can recognise her.
·The applicant does not believe that the police in Taiwan can protect her because every time her family would call the police, the debt collectors would flee the scene.
The delegate had concerns for the applicant’s credibility due to perceived inconsistencies between the written application and her evidence at interview. The delegate did not accept that the applicant’s mother or the applicant were being pursued by debt collectors or police.
The applicant wrote a letter to the Tribunal on 21 February 2017. In the covering email, she noted that she used google translate to translate her claims. There is some confused language in this letter and clarification of her claims was sought at hearing about the content. At hearing the applicant gave evidence, explaining the whole of claims in her various written submissions. In summary, the applicant’s claims, based on her written and oral evidence are as follows:
·The applicant’s mother ran a [business] in [a city], around [number] hours’ drive from Taipei in Taiwan. In the years prior the applicant reaching the age of [age], her mother incurred debts of an unknown amount - owed to various trade creditors, underground lenders and also to friends. The applicant’s evidence suggested that she has no real idea how much is owed; just that it is ‘millions’ and that the debts are from banks, private loans, bounced cheques and underground loans. At some point, her mother’s debts became so large that armed debt collectors began to menace the family, demanding money. On one occasion, shots were fired outside their home.
·The applicant’s family called the police to report the threats. The debt collectors were allowed to leave without charge on at least one occasion. On other occasions, they fled before police arrived. Finally, when the applicant was aged around [age] years of age, (approximately 2006) neighbours reported gunmen outside their property, and after being tipped off by those neighbours and the men were (temporarily) frightened off by police arriving, they took what they could carry in their car and left their home and business, permanently. The applicant experienced trauma in that escalating series of events and the years that followed, due to the loss of all sense of personal security and the following years of housing insecurity and the constant fear of being discovered and killed by her mother’s creditors. The applicant said that their former home and business were ultimately auctioned by the court to cover some of the family debts.
·Over the ensuing years, the applicant’s family lived in hiding. They stayed with family in Taipei and also rented accommodation in areas where they were unlikely to face scrutiny by fellow residents or police. The applicant was required to work to support her parents by selling clothes, phones and fruit in roadside stalls, and also by working in sales or other low paid jobs.   The family had to move often, meaning that the applicant couldn’t find well paid employment and that, even if she did, she was forced to leave it again very soon afterwards. Their car (their only remaining asset) was stolen and they couldn’t even report the theft at the time for fear of being discovered. She described being constantly on alert for suspicious faces and in fear that she would be discovered, followed home and her family put in danger. Although her written claims suggest that she was found and followed home by debt collectors, she clarified (as she had before the delegate) that this was not in fact what happened – in fact, it was that she was always afraid of that happening, and constantly hyper-alert for threats. Further, in some of her jobs, such as market stalls, without legal permits she was also afraid of being arrested by police.
·The applicant described how on one occasion the family was hit from behind by another car whilst driving and the applicant had to stay and deal with the other driver whilst her mother (who was actually driving) ran away for fear of being identified in any formal paperwork.
·Her last job was a good one. She found work [as] a casual employee. A permanent position came up, but she could not move into it because she had no referee or guarantor due to her lifelong experience of constant relocations and keeping a low profile. Without a guarantor (as she termed it) she could not apply for a full-time job, even though she would have been qualified and very much wanted to do so.   After this, she came to Australia as she believed there was no future for her in Taiwan due to her mother’s choices and conduct.
·The applicant has experienced many years of disrupted life, fear and shame consequent on her mother’s conduct, her mother’s debts and the decision that the whole family live in hiding.
·The applicant fears that if her parents die, the creditors will look to her to repay the debts, and that the threats and demands will then be directed more fully at herself. The applicant was aware that it was possible to avoid debts of your parents’ estate if their debts exceed their assets (as hers would) due to a change in the law in around 2008. However, as she noted, this would not assist her whilst they were still alive, and would require her to act very quickly on their death. She has no idea how much is owed overall. Further, this law will only help with legal debts owed to banks or traders and she believes that the underground moneylenders and their debt collectors are unlikely to accept having the debts written off according to any law. She fears they will find and pursue her, regardless.
·Her parents do not use their proper identities. They live amongst illegal immigrants to avoid being identified. The applicant said that she would not be able to do that and, when she used her proper name on return, she would be vulnerable to discovery by people searching for her mother. A person must officially report changes of address to the authorities in Taiwan, which means that she will potentially be located by police and they may try to use her to find her mother.
·The applicant has [a] brother, but he had left the family home years before and is married with a child. He is not therefore known to people as related to her family and has not experienced any problems with their mother’s creditors or people associated with them.
·In Taiwan, you have to keep your address up to date for health and government services. If she returns, the applicant claimed she will not be able to access health care because her address is old and she has not paid the necessary fees. She claims she can’t vote, can’t get married or have children because doing any of those things would put her at risk of harm because she might be identified and found by debt collectors and harmed.
·Once she received a call from a bank (whilst in Australia) who told her that her account was being used, and she was not aware of that. She told the manager she was abroad and denied involvement. Her mother has a copy of her identity card, which can be used to open bank accounts and borrow money. She doesn’t know if her mother has done that, but suspects that she has. She is really scared that her own credit history in Taiwan has now been ruined.
·In response to the delegate’s decision which claimed that she gave vague evidence about borrowings, the applicant stated that some of the money borrowed was cash, some checks and some promissory notes. Her mother’s name is on the Taiwan police website as a wanted person. At hearing, she provided a copy of her mother’s details on that website in 2017. Her father has no cell phone, so she can only contact him by calling her mother. Her mother changes the number frequently and so the applicant has to rely on her mother calling her.   She last spoke to them around a month before the hearing and said at that time, they were both ok.
·Australia makes her feel reborn because no one knows her. Although the language is an obstacle, most people are friendly and she does not have to hide. She doesn’t need to hide her name, her face or her identity. She feels relaxed, at peace and has no fear in Australia.
·If she goes back to Taiwan she faces debt inheritance, violent threats, fears the Triad will kill her, and would be living in the dark or shadows even though she has not done anything wrong.
On 8 February 2021, the applicant wrote to the Tribunal by email attaching a word document which included the following information as well as links to several different web based news items:
Good day
This is news about violent debt collection. I use translation software. It proves that it is not safe for me to return to Taiwan.
Below are references for Taiwan news.
I hope you can understand me. Why I am scared. In JAN 2020, I was beaten by a black man. It caused me to have psychological problems. After this incident, I learned about the cultural difference. The police in Taiwan will not keep records. I I won’t get a receipt. The store has cctv. The Taiwan police didn’t check the cctv. They didn’t care about whether the victim was physically or psychologically injured. I was beaten by a black man. The Australian police cared very much about me.. Instantly I I'm afraid to hide at home and I'm afraid to go out for a few months. It's still greatly affected
The articles links attached to this email are as follows and have been considered by the Tribunal:
·CTS news article entitled “Young gangs run underground banks with guns and violently collect debts” dated 2007/01/03. This article refers to the Taoyuan County Criminal Police Brigade uncovering underground bank associated with gangs. The article notes that the gang used violent threats to get money repaid and that various weapons were seized.
·TVBS news article entitled “Horror buried alive! Violent groups take innocent victims to intimidate” published 2014/02/11. This article refers to the Tainan police cracking down on a cruel debt collection group where one of the perpetrators dug a hole and threatened to bury her alive, the suspects beat victims with iron bars. All perpetrators were reported to have been arrested.
·China Times article referring to an incident where a debtor was forced to take nude photos, dated 2020/07/09. This article refers to a violent loan shark and appears to describe bullying, intimidation and violence used to threaten people who owed money. The report refers to the Qianzhen branch of police cracking down on the underground bank, arresting the leader and 8 other people.
·Liberty Times Net article reporting that 44 people were seized in Kaohsiung over 7 days. Published on 2020/07/09, this article reports that 976 police officers over 7 days ‘cracked down’ on gangsters, arrested 44 people, seized modified firearms and weapons. Those arrested included people who had used violence to collect money owed, used torture and also threatened massage parlour and car dealer businesses demanding protection money.
·TVBS news report “Dad owes millions of debts! Rumour has it that the prince was forced by loan sharks to ‘pay the debts of the father’ and block people to ask for money.” Published 2020/08/12. This report refers to an entertainer called ‘Prince’ whose father owed huge debts. Prince’s father had borrowed from loan sharks who then turned to him and demanded he pay his father’s debts. No crimes appear to be reported in this article.
·UDN report entitled “The Police Department’s fourth wave of sweeping gangs and violent crimes totalled 282 people this year.” Dated 2020/11/13. This article reports that police had arrested people suspected of setting up a bureau to violently collect debts, stabbing a victim to concussion with a stone and forcibly taking nude photos. A total of 23 people were targeted for ‘peace control’, 149 people under their control and 110 people who committed violent crimes were seized.
·Extract of an article outlining the criminal charges faced by violent debt collectors for various acts of violence, threats and intimidation.
·An article about promissory notes from Wikipedia.
·Under the heading “My mum and dad and I got PTSD” a Wikipedia article about post-traumatic stress syndrome.

The applicant gave credible evidence before the Tribunal. She said she was embarrassed and ashamed when she discussed her claims with the delegate – and stated that she felt she was able to explain her situation more fully during the hearing than she could at the departmental interview. As can be noted from the information and evidence above, the applicant described decades of managing her mother’s debt and criminal conduct – living in virtual hiding, constantly moving to avoid being traced and having to work in low skilled jobs to support her family, because they were unable to openly move about in society. The work she was forced to do was not always safe from the police because roadside hawking was not permitted in Taiwan. In this way, her mother’s conduct had prevented her from having a normal life, finding meaningful work, and had placed the whole family at risk of arrest or at the very least, of experiencing lifelong poverty, fear of assault and harassment at the hands of creditors.
It is considered that the nature of her disrupted life explains why the applicant’s evidence is at times confused and incomplete. After taking into account her evidence and the information before it as a whole, the Tribunal considers that the primary elements of the applicant’s claims have in fact been consistently described. Although (as observed by the delegate) some of her knowledge about her mother’s debts and potential crimes is poor (such as the amount borrowed or fraudulently obtained, times borrowed, terms and who exactly was owed money), understandably her focus and claims have been and are more credibly based on her own experiences and the consequences of her mother’s conduct on the applicant, rather than on events she was not party to. Namely, without direct knowledge of her mother’s conduct, her focus is on her own experience and the consequences she experienced from that conduct. The Tribunal found the applicant’s evidence about the primary aspects of her claim to be credible.
The Tribunal accepts the applicant’s evidence and description of her life experiences in Taiwan as reliable, with limited exception. The Tribunal cannot be certain of the amount owed and does not accept as plausible the applicant’s written claims that her mother’s debts were as large as several million Australian dollars. This is because her direct evidence is that she does not actually know (and has never known) the full extent of her mother’s debts and potential crimes. Also, based on her evidence to the delegate and before the Tribunal, the Tribunal is not satisfied that the applicant was ever ‘found’ and followed home by her mother’s creditors or people associated with them – but does accept that she lived in constant fear of that occurring.
The applicant’s story is a moving and sad one which suggests that her entire young adult life in Taiwan was overshadowed and greatly affected by the poor conduct of her mother and her mother’s creditors. The Tribunal accepts (unlike the delegate) that the applicant came to Australia to avoid having to live in fear and hiding with her parents in Taiwan. The Tribunal cannot be satisfied of the amount owed, but is satisfied that the applicant’s mother has borrowed or obtained by fraud large sums of money from friends, lenders, other traders and underground loan sharks and has defaulted on those responsibilities over many years. Additionally, the Tribunal is prepared to accept, based on the Taiwan Government website document she provided, that the applicant’s mother is (or was in 2017 at least) indeed a wanted person in Taiwan in relation to criminal financial offences she is alleged to have committed. The evidence given by the applicant suggests that her mother has and potentially continues to commit serious financial crimes including fraudulently using the applicant’s own identity to create and default on credit cards and loans. Further, the Tribunal accepts that the applicant’s parents live in hiding in Taiwan to avoid her creditors, and also to avoid the mother’s arrest on various potential charges of fraud. The Tribunal accepts that her parents do not use their own names to avoid detection and live with migrants and others who are illegally in Taiwan. The Tribunal accepts the applicant’s evidence that, to avoid detection, her mother even uses her aunt’s identity to obtain medical treatment.
The Tribunal accepts the applicant’s evidence at hearing that she has not herself been directly threatened and physically harmed, apart from the occasion when the family was attacked with guns in approximately 2006, and which incident forced the family to walk away from their home and business, never to return. However, the Tribunal accepts that the applicant has lived the following years in a state where she was constantly in fear of imminent harm and suspicious of any stranger she saw as a potential gangster, hunting for her mother, or liable to kidnap her for leverage against her mother. The Tribunal accepts that she and her parents were forced to move on multiple occasions. The Tribunal accepts that even when the applicant found good work in Taiwan, she was forced to leave the job because the impact of constantly moving due to her mother’s crimes and conduct meant that she could not move from casual to full time employee.
The applicant claims that she would ‘inherit’ her mother’s problems and her debts. The Tribunal discussed with the applicant that Taiwan has passed laws in 2008 enabling children who otherwise would be forced to pay debts of their deceased parents’ to avoid that liability if the parents’ debts exceed the assets of the estate.[1] According to the Tribunal’s research, this law may not be widely known but must be actioned (by the filing of court documents) within three months of the parents’ death. At hearing, the applicant made it clear that she had considered and was aware of this change to inheritance law and the Tribunal found this knowledge to be consistent with her overall claims of a fear of being held responsible for her mother’s debts. She agreed that the inheritance law might provide her relief from ‘legitimate’ or business and legal debts owed by her mother, but she felt that the loan sharks would not accept debts being written off in that manner. And, as she noted, even if she could utilise that law to ‘disinherit’ her mother’s debts, that meant that she had to ‘hope’ or ‘wait’ for her parents’ death before she could be free of the burden of those threats and obligations. In the interim, she would have to resume living in hiding and fear. The Tribunal accepts as plausible that underground or illegal lenders would be unlikely to accept any repudiation of debts under Taiwanese law and may try to recover outstanding debts from the applicant if her parents are no longer alive.
[1] Reported in various sites but noted in The China Post, Taiwan on April 23, 2008 “New Inheritance Law Revisions ratified:” New inheritance law revisions ratified | The China Post, Taiwan (nownews.com) “The Legislative Yuan yesterday officially ratified a set of revisions to the inheritance regulations under the Civic Code, allowing all inheritors to repay only part of debts by using the assets they inherit, if the debts exceed the assets they inherit. In addition, the revised rules will become retroactive. It means that if people inherits the debts, which are higher than assets, before the revised rules are taken into practice, they will be allowed to pay as much debts as the value of assets they inherit and “forget” the remaining debts they inherit…”
The Tribunal noted that the reason for the harm the applicant fears (being harassed, abducted or assaulted in order to ‘encourage’ her mother to make good on a number of large debts) is not due to her race, religion, nationality or political opinion. The applicant was targeted because of her connection to her mother. The applicant agreed that the reason for the harm she fears is solely due to her mother’s criminal and financial misconduct.
The Tribunal also discussed with the applicant that the country information in Taiwan suggests that the Taiwanese police and authorities take threats of violence related to loan sharks or personal debts seriously – given that they have arrested many such persecutors over recent years. This is supported by the news reports that she herself provided. Even her own experiences reflect that the debt collectors respected the police and fled when they were called. The Tribunal considered that this suggests that if, in the future, the applicant faces criminal conduct from her mother’s creditors and associates, she could report the conduct to police and her report would be taken seriously, potentially resulting in the arrest and prosecution of those who threaten or harm her. The applicant noted that although the police may have the capacity and even the intention to protect the applicant if she is threatened, they would not be able to protect her at all times from gangs who might use her to attempt to manipulate and locate her mother.
The Tribunal also discussed with the applicant whether she could relocate away from her parents in Taiwan and renew her life as an independent woman, as she had done in Australia. The applicant stated that she would not return to live with her parents. She said that in order to find a good job in Taiwan, you need someone to go guarantor for you as a means of security to the employer. She felt that she would not be able to provide anyone as guarantor, as the path of her life has alienated her from her childhood friends, and he has no one else who could assist her. She denied that her aunt or any relative could provide her with such a guarantee but could not provide any reason why not. She simply stated that ‘she could never ask them’ given what her mother has put them through. Nonetheless, the applicant’s history both in Taiwan and in Australia reflects that she is resourceful; and the Tribunal did not accept that the applicant faced any obstacles to finding and retaining enough work to sustain herself if she returns to Taiwan. The Tribunal accepts that the applicant would not return to live near or with her parents. She would receive no support from them and there is no reason why she would need to live with them for even a short time on her return to Taiwan. She has now lived apart from them since 2013 and on her own evidence, has found that to be liberating. In fact, as discussed generally with the applicant at hearing, her safest course to avoid being associated with them and their troubles is to live distant from them and deny any connection to or knowledge about them if she is ever confronted about her mother’s whereabouts.
The Tribunal also discussed with the applicant whether there was a real chance that she could be located by the moneylenders and people associated with them and would face serious harm from them, given that she lived for many years in Taiwan prior to coming to Australia without being abducted, killed, arrested, sold into prostitution or even threatened. Now she has been distant from her parents and Taiwan since 2013. Based on her evidence, her parents had also so far avoided being located even though it was her mother who was the direct target of creditors. The applicant said that this may be true, but she would be constantly fearful that she would be discovered and harmed.
Even allowing for her having lived ‘under cover’ as much as possible in the years before she came to Australia, the Tribunal also put to the applicant that she had not experienced what could be considered to be ‘serious harm’ as that term is reasonably considered in the years prior to coming to Australia. The applicant responded that her mother’s conduct had effectively poisoned her whole life and meant that she was discriminated against in trying to find and keep employment. She felt that this discrimination did amount to causing her serious harm.
Findings on Refugee Provisions
The applicant fears debt collectors searching for her mother will harm her, (that they will harass, threaten and intimidate her, that they will sell her into prostitution, or that they will kill her) because of her mother’s debts and apparently criminal behaviour. She fears that she will be questioned by police about her mother’s whereabouts, and that she will be unable to live a free life in Taiwan without fear of being discovered – that she will be unable to vote, get married or have children because doing so would potentially lead to her being discovered. She fears that her own credit record has been tarnished by her mother’s actions in falsely using her name to open and default on credit cards.
The Tribunal has accepted that the applicant’s mother’s conduct has imperilled her family freedom, forcing her parents to live in fear and hiding that they will be discovered, and her mother held to account for her loan and credit defaults since 2006. Whilst the applicant was in the country, the Tribunal has accepted that she worked to support her family since they could not move freely within society due to the predicament her mother had created. The Tribunal is satisfied that the applicant lived from 2006 to 2013 in fear of being found and followed to her mother by debt collectors, that she had to take on various casual and low paid jobs, and that she was unable to settle in any long term work role, due to the problems of her family. The Tribunal accepts that the applicant has a genuine fear of having to return to Taiwan and live in fear as she has before, and also that she will be forced to repay her mother’s debts by underground debt collectors under threat of violence, that she will inherit her mother’s debts and that her own financial record has been damaged by her mother’s actions, preventing her from borrowing in her own right in the future.
However, whilst the applicant may have that genuine fear, there are a number of factors which suggest that there is not a real chance that the applicant would be located, harassed, or harmed by her mother’s creditors or people associated with them. As noted above, the Tribunal is satisfied that the applicant would not return to living in the same situation as she has previously experienced with her parents. She has now lived independently of them for close to 8 years and her evidence is that she would choose not to live with or near them in Taiwan if she were to return. This level of practical independence would accord her a real barrier to being associated with her mother and her mother’s problems. In reaching that conclusion, the Tribunal also noted that her evidence is that her brother, (who lived away from the family before the trouble started) has not experienced any demands or threats from the creditors or people related to them.
The Tribunal has also taken into consideration and accepted that since around 2006 or 2007, the applicant (while she was in the country) and her parents (since she has departed) have consistently avoided her mother’s creditors, gangsters associated with them and the Taiwan police. The Tribunal considers that this indicates that the capacity of creditors, loan sharks and even the authorities to locate and (in the case of the creditors and their associates,) to harm the applicant or her parents is significantly and practically limited in a very real way. The fact that they did not locate and harm her over the years she was living and working in Taiwan after they fled their home (when she used her own name), suggests that the applicant’s fear that she would be unable to live and work freely under her own name without being identified and located is (though genuinely held) not plausible. After all, her brother has not been approached because of the very fact of his independence from the family. This is an independence from her parents that the applicant now shares, and she is also insulated by the fact that she has been outside the country since 2013, so her connection to her parents will be further weakened by that absence. It is noted that the applicant said that her parents have used false names to avoid those who seek to find them and that the applicant would not do so. The Tribunal considers that even if the applicant uses her own name, her absence from Taiwan over many years has given her a significant practical insulation from her parents’ problems if she were to return to Taiwan and live independently of them as she has indicated that she would do. After considering all of these factors, the Tribunal finds that there is not a real chance that the applicant would be found, harmed (physically assaulted, kidnapped or sold into prostitution or subjected to harassment and threats) now or in the reasonably foreseeable future by her mother’s creditors (including gangsters associated with them) if she returns to Taiwan. The Tribunal is not satisfied that the applicant faces a real chance of serious harm by her mother’s creditors or people associated with them. In relation to her inheritance of ‘legal debts’ after her mother’s death, the Tribunal notes that the applicant can take steps to avoid that responsibility if that arises due to the change in inheritance laws allowing children to do so where the debts exceed the assets of an estate, and that there is therefore not a real chance that the applicant will suffer serious harm from ‘inheriting’ her mother’s legal debts.
The Tribunal does not accept that there is a real chance that the applicant would be unable to vote, get married or have children as she claims. As noted above, she did not claim that she would be denied those rights, just that she would fear doing so because of her own fear of being identified and located. Taking into account her brother’s situation, and the fact that he has not been identified and harassed over the sixteen years that her mother’s creditors have been searching for her mother for repayment, the Tribunal does not accept as plausible her claim that the creditors and people associated with them have any capacity to locate and harm her if she votes, gets married or has children, even if they wished to do so.
The applicant also claims to fear that she will be ‘used’ by police to locate and prosecute her mother. She did not claim and the evidence before the Tribunal suggests that she does not fear being arrested on false charges or otherwise harmed by police. The Tribunal accepts that the Taiwan police may plausibly still be interested in locating and prosecuting the applicant’s mother for financial offences. Whilst there is a real chance (in the sense that it is more than a remote chance) that the applicant will be questioned about her parents’ whereabouts by police, the Tribunal finds that, even if that occurs, it would not involve causing the applicant ‘serious harm’ as required by s.5J(4)(b). The Tribunal does not accept that there is a real chance that police would seriously harm the applicant in any way, even if they contacted and questioned her in an attempt to locate her mother.
The applicant also claimed at hearing to fear that she will be unable to access health care in Taiwan because she has been outside the country and has not recently updated her address or paid ‘health care fees.’ According to general country information[2], Taiwan has a highly effective State funded health care system, the NIH, which is accessible and efficient with contributions linked to income levels. The applicant’s claim about possibly not being able to access health care was vague. She has not provided any supporting evidence capable of establishing her claim that she will be denied access to health care in Taiwan. General internet and country information searches did not suggest that citizens are refused health care if they don’t pay taxes or fees. The applicant also did not provide evidence of any pre-existing health conditions for which she requires immediate or ongoing treatment, and was speaking about a theoretical future denial of health care only. Although she claimed to have ‘psychological problems’ due to being beaten ‘by a black man’ in Australia in 2020 and had also provided a google document to suggest that she suffers from PTSD, there is insufficient evidence before the Tribunal capable of establishing either that the applicant suffers from a psychological impairment or that she requires any ongoing treatment which would not be available to her in Taiwan. The Tribunal considers that temporary lack of access to health care (even if that transpired) would not involve causing the applicant serious harm; and the limited information given by the applicant does not establish that she would face even a temporary denial of health care. In any event the Tribunal is not satisfied that there is a real chance that the applicant will be denied access to health services on her return to Taiwan.
[2] See for example: Taiwan has best health care system in the world: business magazine | Taiwan News | 2019/08/08 or An overview of the healthcare system in Taiwan (nih.gov) published in 2010.

The applicant also claims to fear that, because of her past personal history of moving frequently, working in low paid and unskilled jobs and also because she has lost touch with former friends and associates who might be in a position to ‘guarantee’ her to future employers, she will be unable to find reasonably paid employment in Taiwan. She claims she will only be able to work in low paid work, encountering what she called ‘discrimination’ because of her incapacity to provide suitable referees or guarantors (directly because of her history of being in hiding with her parents). In her evidence, the applicant referred to her concern that she could not find well paid work due to the general working conditions in Taiwan. The Tribunal has accepted that her history prevented her from obtaining well paid ongoing work at times in the past and that there is some potential that she may experience rejection for employment in some roles because of her lack of acceptable personal references and guarantees in the foreseeable future. However, the Tribunal also notes that her own past resourcefulness and capacity to find (casual) ongoing employment suggests that even if that occurs, she will find employment in Taiwan and will be capable of supporting herself. Whilst the applicant’s employment options for high or moderately paid employment may be low due to her past history and absence from Taiwan initially, the Tribunal finds that there is not a real chance that the applicant will be unable to find employment sufficient to support herself on return to Taiwan – due to the ‘discrimination’ she referred to, because of the wage limitations of the Taiwanese economy or for any other reason.
In relation to the applicant’s credit rating, and her fear that she may have a poor rating due to her mother’s conduct, the Tribunal has accepted her evidence that she was notified by a bank that ‘someone’ had opened a credit account in her name and defaulted on it whilst she was in Australia. She assumes it was her mother, using the applicant’s identification documents. The Tribunal considers that it is plausible that she may have a poor credit reputation as a consequence. It is also plausible that she would be unable to borrow money or apply for a credit card on her return. The Tribunal considers that the applicant could potentially challenge the rating and seek to have her reputation rectified. She would be in a position to demonstrate that she is not responsible, having been out of the country for the whole period of any debt. In any event, even if she returns to a ruined personal credit history, the Tribunal is not satisfied that being unable to borrow money or obtain credit of any kind would involve the applicant suffering ‘serious harm’ as required by s.5J(4)(b).
The Tribunal has found that there is not a real chance that the applicant will suffer serious harm now or in the reasonably foreseeable future from her mother’s creditors, gangsters or debt collectors associated with them, or from the Taiwan police or government authorities. The Tribunal has found that there is not a real chance the applicant will suffer harm in the form of being denied access to health services on her return to Taiwan. The Tribunal has found that there is not a real chance applicant will be prevented from finding work sufficient to support herself if she returns to Taiwan due to her personal history or because of the Taiwanese economy or for any other reason. The Tribunal has also found that there is not a real chance that the applicant will suffer serious harm due to her potentially poor credit rating or because she might inherit her mother’s legal debts. The Tribunal has considered each of these claims individually and also cumulatively. The Tribunal finds that the applicant does not have a well-founded fear of persecution now or in the reasonably foreseeable future in Taiwan for any reason, even when the applicant’s claims are considered cumulatively.
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 applicant argued in her submissions that her claims fall within the complementary protection provisions of the Act. She fears that she will be harassed, face ongoing demands for payment of her mother’s debts, that she will be kidnapped or sold into prostitution by her mother’s creditors, or that she will face assault or other physical harm (including murder) from her mother’s creditors or people associated with them. She also fears that the Taiwan police may try to use her connection with her parents to locate and prosecute her mother. The applicant also fears that if she is returned to Taiwan, she will be unable to access medical treatment or find well-paid employment, and that she will have to live ‘in hiding’ to avoid her mother’s creditors as she did in the past.
The applicant claims that the combination of her circumstances mean that she would be unable to live a full and safe life in Taiwan. She claims she would be living in fear of being ‘discovered’ by her mother’s creditors and by police looking for her mother, that she would be unable to do ordinary things like marry, buy a home or find meaningful employment. The applicant fears that she will be affected by a poor credit rating due to debts possibly fraudulently raised in her name by her mother. She also fears that she will inherit her mother’s legal debts in addition to those debts for which she fears she will be harmed by ‘illegal’ creditors.
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 refers to and relies on its’ discussion and findings on each of the applicant’s claims above under the refugee provisions.
Noting that the real risk test is the same as the real chance test, and for the same reasons as explained above, the Tribunal finds that there is not a real risk that the applicant will suffer significant harm (that she will face the death penalty, be arbitrarily deprived of her life, subjected to torture or to cruel or inhuman or to degrading treatment or punishment) if she is returned to Taiwan from creditors or gangsters associated with them because of her mother’s debts.
In relation to her inheritance of ‘legal debts’ after her mother’s death, the Tribunal notes that the applicant can take steps to avoid that responsibility if that arises due to the change in inheritance laws allowing children to do so where the debts exceed the assets of an estate. The Tribunal finds that there is not a real risk that the applicant will suffer significant harm due to inheriting her mother’s legal debts.
The Tribunal finds that there is not a real risk that the applicant will be discriminated against (due to her lack of references) in finding employment or that she will be unable to find employment to support herself if she is returned to Taiwan. Even allowing for some initial difficulty in finding well paid employment, the Tribunal also does not consider that difficulty finding work or referees for future employment would involve causing the applicant ‘significant harm’.
The Tribunal finds that the applicant has not established that there is a real risk that the applicant will be denied health care by the Taiwan government for any reason.
Based on the applicant’s own evidence, the Tribunal finds that there is not a real risk that she will be harmed by Taiwan police if she is returned to Taiwan. Whilst there is a real risk that she may be questioned about her mother’s whereabouts and that she may suffer some emotional distress if that occurs, (given that the Tribunal has accepted that the applicant’s mother is on a police watch list for fraud matters) the Tribunal does not consider that the applicant will suffer significant harm as described in s.36(2A) from that process, if it occurs.
In relation to the applicant’s credit rating, and her fear that she may have a poor rating due to her mother’s conduct, the Tribunal has accepted her evidence that she was notified by a bank that ‘someone’ had opened a credit account in her name and defaulted on it whilst she was in Australia. She assumes it was her mother, using the applicant’s identification documents. The Tribunal considers that it is plausible that she may have a poor credit reputation as a consequence. Nonetheless, even if she returns to a ruined personal credit history, the Tribunal is not satisfied that being unable to borrow money would cause the applicant significant harm because it would not involve any of the harms in s.36(2A) of the Act.
As explained to the applicant at hearing, it is accepted that the applicant has suffered a disrupted life due to her mother’s conduct and behaviour, and that she fears that will continue on her return, restricting her capacity to live a life of her own, free of a constant fear of being held accountable for her mother’s sins. The Tribunal accepts that the applicant will carry that fear with her, and that she subjectively considers that it is not reasonable to expect her to live ‘in hiding’, because of her ongoing maternal problems. Taking into account its’ findings on each of her claims above, the Tribunal is not satisfied, however, that the applicant would actually have to live in hiding if she returns to Taiwan – but considers that she could re-establish her life there without facing a real risk of significant harm for any reason. The Tribunal accepts that the applicant would prefer to remain in Australia where she can live freely and distant from the problems faced by her family. The Tribunal has considerable empathy for the predicament her mother’s conduct has historically placed the applicant in. Nonetheless, the applicant has not established that there is a real risk that she will suffer significant harm for any reason if she is returned to Taiwan. The Tribunal has considered her claims individually and cumulatively. The Tribunal finds that there are not substantial grounds for believing that the applicant will suffer significant harm as a necessary and foreseeable consequence of her being returned to Taiwan, even when her claims are considered cumulatively.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Anne Grant
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 1187

7 April 2021

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