1704004 (Refugee)

[2017] AATA 1667

1704004 (Refugee) [2017] AATA 1667 (26 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704004

COUNTRY OF REFERENCE:                  Taiwan

MEMBER:Luke Hardy

DATE:26 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 September 2017 at 4:30pm

CATCHWORDS
Refugee – Protection visa – Taiwan – Persecution from loan shark – Criminal connection of loan shark – Credibility issues

LEGISLATION

Migration Act 1958, ss5H, 5J, 5K-LA, 36, 65, 499

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The [applicant] , is a citizen of Taiwan. He arrived in Australia [in] November 2013 on a [visa]. He obtained a further [visa] onshore [in] July 2014. He lodged a protection visa application [in] October 2015, apparently towards the end of his permitted [stay]. The delegate refused to grant the visa [in] February 2017.

3. [The applicant] appeared before the Tribunal on 3 August 2017 to give oral evidence and present arguments. The hearing was facilitated by an interpreter in the Mandarin-English medium.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

7. 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.

8. 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

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issues

10. The overall issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, in the event that he is not, on complementary protection grounds. Another issue in this matter is [the applicant’s] reliability as a witness.

11. For the following reasons, I have concluded that the decision under review should be affirmed.

    Claims to the Department (DIBP)

12. [The applicant], who evidently speaks little or no English, was evidently assisted in the completion of his protection visa application form. It is nevertheless stated at Part B question 6 that he received no assistance in the completion of that form. In any event, [the applicant] evidently declared at Part B question 12 of the protection visa application form that the information he had supplied in the form was “complete, correct and up-to-date”.

13. As far as [the applicant] has indicated throughout this process, his protection visa application form contains correct information as to his age and address in Taiwan.

14. In his protection visa application form, [the applicant] claimed he became a heavy gambler in Taiwan around the age of [age]. He claimed he borrowed from friends to pay debts and feed his gambling addiction. He claimed the situation compacted until he found himself borrowing from a loan shark. He claimed he defaulted on agreed repayments. He claimed he was called to a meeting with the loan shark to discuss repayment “options”. He claimed he then, and only then, found out that the lender had criminal connections. He claimed the lender’s gang detained (“many times”) and tortured him. He did not describe the conditions of his release, but he said his life was directly threatened. He claimed he decided then to leave Taiwan for Australia.

15. [The applicant] also claimed that he hid in the countryside for two months but heard at the time the gang was in pursuit of him. He claimed that the gang, in the meantime, found his parents, asked after him, frequently harassed them and burned their house.

16. [The applicant] claimed he did try to get the police to intervene only to be told by the police to solve the matter himself.

17. [The applicant] provided no material at all to the Department to substantiate his claims.

    Primary decision/independent country information

18. For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision record which contains a number of citations from independent sources relating to the perceived availability of state protection from the kind of criminal harm that [the applicant] described in his claims. There are explicit reports of the police arresting members of debt-collecting rings The delegate relied on the independent information in finding that, contrary to bald claims made in his protection visa application form, [the applicant] could avail himself of state protection.

    Evidence to the Tribunal

19. The Tribunal advised [the applicant] in March 2017 to submit any relevant additional information to the Tribunal as soon as possible; none was received prior to the August 2017 hearing.

20. At the hearing, [the applicant] commenced his evidence-giving by stating that the delegate’s decision was translated for him by his friend upon his receipt of it. He claimed that it was his father, and not he, who had had the gambling addiction and who had borrowed from the loan shark. He said that the information in the protection visa application form suggesting that he himself had been the gambler and the defaulting borrowed had been erroneously put into his protection visa application form by his friend’s friend, who had charged him [and] with whom he had subsequently lost contact.

21. [The applicant] said his father borrowed from the loan shark “[years] ago”. However, he gave discrepant evidence about when this all purportedly happened because, at another stage in the hearing, he said his father had only been under pressure from the loan shark and his gang [in recent] years.

22. I asked [the applicant] to tell me his father’s occupation and he said he did not know because he had not been in contact with his father for a long time. Later he said that he had dinner with his father before he came to Australia. After that, he said he had not seen his father for seven or eight years, but when confronted with the discrepant evidence on this subject, acknowledged he had dined with his father just before coming to Australia.

23. [The applicant] suggested that his father had not repaid the loan and said that he had managed to avoid doing so by hiding from the loan shark’s gang. He implied that the loan sharks had been unable to find his father.

24. [The applicant] claimed that he had become a target of the loan shark’s gang for trying to protect his father from assault by gang members back when he, [the applicant] was still in high school. He said he bit one of the gangsters.

25. I asked [the applicant] about his siblings. He described [brothers] who work and lead evidently unremarkable lives. I asked [the applicant] why his brothers had not been harassed over all the years that the gang had been unable to locate his father and he said that the gang was searching for him, right up until now, because he had bitten one of its members. He said that the gang did not hold individual grudges against his [brothers].

26. [The applicant] indicated that the only evidence he had of any of this having happened was that his leg had been broken [years] ago.

27. [The applicant] told me that the address in his protection visa application form was his family’s home address. I put to him that he claimed in the form to have resided there until just before coming to Australia but he said he did not, as he had fled to the countryside some years before.

    Findings in relation to s.36(2)(a) of the Act

28. Having considered the evidence as a whole, I find that [the applicant] is not a witness of truth. I find that I do not believe any of his substantive claims. The internally inconsistent claims he gave at the hearing are not consistent with the claims he put before the Department, and his explanation as to how his original claims were incorrectly recorded is vague and ultimately not satisfactory. I do not believe that the alleged friend of a friend, who was able to transcribe correctly [the applicant’s] family address in Taiwan, would have made so many substantive claims in the protection visa application form that were and remained for so long unbeknownst to [the applicant].

29. Having considered all of the evidence in its entirety, I am not satisfied that [the applicant] faces a real chance of persecution in Taiwan in the reasonably foreseeable future for any of the reasons cited in s.5J(1)(a) of the Act. His claimed fear of persecution is not well founded. He is not a refugee.

30. 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).

    Findings in relation to s.36(2)(aa) of the Act

31. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

32. A person may meet the criteria for the grant of a protection visa under s.36(2)(aa) 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

33. Relevantly, s.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.

34. Given my findings of fact above, which include significant credibility findings, and given that the "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" of persecution, I find that [the applicant’s] claims can no more succeed as complementary protection claims than they do as refugee claims.

35. On the evidence before me, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Taiwan, there is a real risk that [the applicant] will suffer significant harm. Accordingly, I am not satisfied that he is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

36. 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, he does not satisfy the criterion in s.36(2).

    DECISION

37. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Luke Hardy
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)   the real chance of persecution relates to all areas of a receiving country.

    Note: For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note: For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)   conceal an innate or immutable characteristic of the person; or

    (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)   the persecution must involve serious harm to the person; and

    (c)   the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)   a threat to the person’s life or liberty;

    (b)   significant physical harassment of the person;

    (c)   significant physical ill‑treatment of the person;

    (d)   significant economic hardship that threatens the person’s capacity to subsist;

    (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)   disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)   a characteristic is shared by each member of the group; and

    (b)   the person shares, or is perceived as sharing, the characteristic; and

    (c)   any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)   the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)   protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)   the person can access the protection; and

    (b)   the protection is durable; and

    (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)   the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)   the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …