1704366 (Refugee)

[2021] AATA 4370

1704366 (Refugee) [2021] AATA 4370 (10 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704366

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Anne Grant

DATE:10 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 10 September 2021 at 1:39pm

CATCHWORDS

REFUGEE – protection visa – Taiwan –fear of harm from creditors – a debt to an underground bank and or gangsters – escalating security threats to Taiwan by China – COVID19 pandemic –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5J, 36, 65, 425, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 and Border Protection on 14 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Taiwan, applied for the visa on 7 December 2016. The delegate refused to grant the visa on the basis that they were not satisfied that there is a real chance that the applicant will be persecuted for one or more of the reasons mentioned in s.5J(1)(a) of the Act.  In the alternative, the delegate found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Taiwan, the applicant would suffer significant harm.   

3. The applicant provided a copy of the delegate’s decision to the Tribunal at the time he lodged his application for review.

4. The Tribunal considered the application for review and the information before it and decided that it could not decide the review in the applicant’s favour on the material before it.  On 5 August 2021 the Tribunal wrote to the applicant and advised him that “We have considered the material before us but we are unable to make a favourable decision on this information alone.”  In that same letter, the applicant was invited to a hearing on 7 September 2021 to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.   

5. On 11 August 2021, the applicant emailed the Tribunal as follows: 

   Dear Sir/Madam,
   Thank you for your invitation for hearing. After careful consideration, I decide not to attend the hearing because with my previous submission to immigration. I believe I have provided enough information for the fears of returning to my home country.
   With this email, I want to add one more point for tribunal’s consideration. Under the current situation between china and Taiwan, I have more fears than before that China’s threat to military attack Taiwan anytime according to Chinese government officials. All my family members warn me not to return as Australia is a peaceful country, especially under current COVID in Taiwan. I appreciate if AAT could consider my fear at this time of decision. I authorize AAT to make the final decision base on my given submission.
   Thank you
   [name deleted]

6. The Tribunal has therefore, in accordance with s.425(3) of the Act, proceeded to consider the review on the basis of the material before it, including the applicant’s written claims for protection and the issues and submissions in the applicant’s email of 11 August 2021.   

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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

13. 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, the applicant would suffer significant harm.   

    The applicant’s identity

14. As outlined in the delegate’s decision, the applicant’s claimed identity is [name deleted], born on [date].  The Department’s investigations disclosed that the applicant has also used a different identity when first entering Australia.  According to the delegate’s decision, the applicant first entered Australia as [Alias 1] (same date of birth) on a [Temporary Visa Type 1] [in] August 2012.  Using that identity, the applicant remained in Australia (including travelling into and out of the country several times) until he departed [in] July 2014.  Using a new identity and passport, the applicant then returned as [applicant name] [in] December 2014 after being granted another [Temporary Visa Type 1] in this different name.  According to the delegate’s decision, the applicant did not disclose his previous identity when applying for the second [visa] and claimed that he was applying for a [Temporary Visa Type 1] for the first time.

15. In his application for protection, the applicant did provide his former identity [Alias 1] as an alias.  However, the applicant did not refer to his travel to Australia in 2012 and in fact claimed to have lived in [Country 1] from 1984 to 2004 and then in Taiwan from 2004 to December 2014.   Similarly, he failed to report his two years in Australia from 2012 to 2014 on his employment record at question 84 on Part C, claiming that he had a “Part Time Job” in Taiwan from 2004 to 2014.   The applicant did not disclose his previous entry to Australia as [Alias 1]. 

16. Nonetheless, the departmental delegate accepted that the applicant is [applicant name] born on [date].  He has provided a valid passport from the Republic of China (Taiwan).  For the purposes of this review, the Tribunal also accepts the applicant’s claimed identity.

17. The applicant claimed in his application for protection that he is a Taiwanese national and has provided a Taiwanese passport.  The Tribunal is satisfied and finds that Taiwan is his country of nationality and the receiving country for the purposes of considering his protection claims. 

    Written Claims

18. In his written application for protection, the applicant claimed as follows: 

    • Why did you leave that country(s)? 

    I WAS PERSECUTED BY THE GANGDOM FOR FAILING TO REPAY OUR BORROWING FROM THE UNDERGROUND PRIVATE BANK IN TAIWAN.
    I BORROWED A LOT OF MONEY FROM TAIWAN UNDERGROUND PRIVATE BANK TO PAY MY MOTHER’S TREATMENT FEES. BUT, THE INTEREST WAS SO HIGH, I COULD NOT REPAY IT. LATER, CREDITORS ORDERED THE GANGDOM TO COME TO MY HOUSE AND ROB ME. THEY SAID THAT IF I DID NOT PAY MONEY BACK, THEY WOULD BREAK MY LEGS. I WENT TO THE POLICE FOR HELP. BUT NO RESPONSE. FRIENDS TOLD ME THE UNDERGROUND BANK WAS SUPPORTED BY THE TAIWAN GANGDOM, WHO HAS A CLOSE CONTACT WITH OFFICIALS, AND THAT WAS WHY THE POLICE IGNORED.
    WHEN THE GANGDOM KNEW ME CALLED THE POLICE, THEY HARASSED AND THREATENED ME AGAIN AND AGAIN. I DARED TO GO HOME AS THEY GATHERED OUTSIDE MY HOME. THERE IS NO WAY FOR ME TO GET RID OF THEM. I CAN’T GO BACK TO TAIWAN, I FLED TO AUSTRALIA.
    IF I GO BACK TO TAIWAN, THE GANGDOM WILL KILL ME SECRETLY AND NO ONE WILL HELP ME.
    Yes THE GANGDOM ROBBED MY HOUSE AND BEATED ME.
    Yes I ASKED THE POLICE FOR HELP. BUT THEY IGNORED ME TOTALLY. THE UNDERGROUND BANK WAS SPORTED BY THE TAIWAN GANGDOM, WHO HAS A CLOSE CONTACT WITH OFFICIALS, AND THAT WAS WHY THE POLICE IGNORED.
    No. THE POWER OF THE TAIWAN GANGDOM SPREAD OVER THE ENTIRE TAIWAN. THEY HAVE SO CLOSELY CONNECTION WITH DIFFERENT OFFICALS.
    Yes IF I RETURN TO TAIWAN, I WILL BE CAUGHT BY UNDERGROUND BANK AND BEING PERSECUTED.
    THE UNDERGROUND BANK WAS SUPPORTED BY THE TAIWAN GANGDOM, WHO HAS A CLOSE CONTACT WITH OFFICIALS. THE GOVERNMENT OFFICIALS IS COLLUDE WITH EACH OTHER. THEY ARE TRYING TO PROTECT EACH OTHER.
    Yes.  THE GOVERNMENT OF TAIWAN SUPPORT THE TAIWAN GANGDOM AND THE UNDERGROUND PRIVATE BANK SILENTLY. THEY CAN RELOCATE ME AS THE INFORMATION FROM THE SYSTEM IS SHARED BY EACH DEPARTMENT.

    • What do you think will happen to you if you return to that country(s)? 
    • Did you experience harm in that country(s)? 
    • Did you seek help within the country(s) after the harm? 
    • Did you move or try to move to another part of the country(s) to seek safety? 
    • Do you think you will be harmed or mistreated if you return to that country(s)? 
    • Do you think the authorities of that country(s) can and will protect you if you go back? 
    • Do you think you would be able to relocate within that country(s)? 

19. In his email refusing the invitation to attend a hearing and consenting to the Tribunal deciding the review without him appearing before it, the applicant also claimed, as noted above, that he fears returning to Taiwan due to ‘the current situation between China and Taiwan’ and the applicant also refers to COVID19.  He refers to escalating security threats to Taiwan by China, and that his family has urged him to remain in Australia. 

20. In the delegate’s decision, the delegate outlines the applicant’s migration history which discloses that the applicant departed Australia on [date] July 2013, [date] July 2014, [date] July 2014 (using his alias) and [date] December 2014 (using his current identity) and on each occasion he later returned to Australia.  The application for protection was lodged on 7 December 2016.

21. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that he or she satisfies all of the required statutory elements.

22. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

23. In this review, the information before the Tribunal is limited and the applicant has provided vague claims without including necessary and obvious particulars surrounding various aspects of those claims. The delegate did not interview the applicant and has proceeded on the presumption that the applicant owes a debt to an underground bank and or gangsters in Taiwan, because the country information reflects that violence related to gangs and underground financial transactions does occur in Taiwan.  In the Tribunal’s view, the consideration of the applicant’s claims requires the assessment of not just whether the claimed harm is plausible within the context of available country information.  It requires the assessment of the applicant’s personal circumstances and claims and whether they have been established to a reasonable satisfaction as having occurred, and then applying a forward looking test based on accepted facts and circumstances as to whether there is a real chance (or real risk) that the applicant will experience the harm claimed if he returns to his home country now or in the reasonably foreseeable future.  This assessment can be assisted by an analysis of the country information, but the fact that the country information suggests such harms are plausible is not of itself dispositive of an applicant’s claims.  In the applicant’s case, important and essential information is missing from his written claims.  

    The Claim to fear harm due to a debt owed in Taiwan

24. The applicant’s written claims provide very limited specific information about his claim to fear harm due to a debt to an underground bank and or gangsters.  If he had attended the hearing, the Tribunal would have sought details and specifics which would have enabled the Tribunal to assess whether the debt is genuinely owed, and if so, when it was borrowed, the size and terms of the debt, whether the applicant has repaid the debt in part or in full (from Australia or while he was back in Taiwan), and also specifics of his claims to have been harmed in the past.  The Tribunal would have clarified whether the applicant faced harm of any kind on those occasions when he returned to Taiwan since first arriving in Australia.  The Tribunal would also have questioned the applicant about any threats made to members of his family or to himself through his family, and when he (or they) reported threats to police and whether any action was ever taken on his report to police of the threats he faced; and what evidence he has that the police were or might be ‘involved with’ the underground bank.

25. The Tribunal would have also discussed with the applicant how and or whether the claimed fear of harm from a moneylender or gangs associated with them would be for one or more of the reasons in s.5J(1)(a).

26. If the applicant had attended a hearing, the Tribunal would also have discussed with the applicant the following general country information surrounding police and Taiwanese Government operations and management of organised crime, gangs and illegal financial transactions in Taiwan. The country information referred to by the delegate in the decision under review describes organised crime and underground moneylenders operating in Taiwan.  The delegate included the following information which has been considered by the Tribunal:

    Loan sharks and gangs
    A report from July 2015 gives an overview of Taiwan’s gangs:[1]
    "Official statistics show that there are at least over 5000 gangsters in Taiwan. According to the police, however, these take into account only gang members monitored by the authorities. The actual total number is likely to be higher.

    "The largest criminal syndicate in Taiwan is the Bamboo Gang with over 1700 members and 68 branches, followed by the Four Seas Gang with 46 local branches and 726 members and the Heavenly Way Alliance with 36 branches and 632 members.opy of department paper case file
     "The activities of Taiwan’s criminal gangs range from protection racket, gambling and
    prostitution to running businesses such as restaurants, night clubs and construction companies.”

    The South China Morning Post reported in October 2015 that the United Bamboo triad gang “is one of the world’s largest organised crime groups with its hands in all kind of illegal activities. The infamy of the 10,000-strong triad in drug and human trafficking is known internationally; in 2008, it was ranked by the US magazine. Foreign Policy, as one of the world’s most dangerous gangs. United Bamboo is also engaged in loan-sharking, control of prostitutes and arms trafficking.”[2]

    The Diplomat reported in 2012 that Taiwanese gangs worked in illegal businesses “that span the globe and are worth billions of dollars a year. They have also moved into legitimate areas including restaurants, hotels, the music and movie industries, gravel mining, waste disposal, construction, cable TV, publishing, fisheries, communications and stock trading.” The report states that “gangsters and politicians have a long and complicated relationship in Taiwan” and that “the influence of gangs within Taiwanese politics and business hasn’t waned”[3].

    A report from the American Chamber of Commerce in Taipei, dated May 2016, notes that basic facts about the nature and activities of gangsters in Taiwan are uncertain: “For example, estimates of the number of people involved in organized crime in Taiwan vary enormously. The police say a couple of thousand at most, while the US Customs Department and some knowledgeable domestic sources put the total 10 to 20 times higher.[4]The report quotes police investigators as saying that changes to the law, such as the  Organized Crime Prevention Act and the Witness Protection Act, and better co-ordinated enforcement, have made it possible to keep organised crime at a more manageable level. However, the report notes it is difficult to assess whether or not Taiwan has won the war against organised crime.[5]

    A media report from 2012 notes that loan sharks have become a serious problem as Taiwan’s working poor become increasingly desperate. Labor activist Ying-dah Wong said, “A worker on minimum wage cannot survive in Taipei. That’s a fact. And it’s the main reason why loansharking is a thriving business in the city.”[6]

    [1] CISEC96CF15007: ‘Bamboo Gang, Heavenly Way Alliance, and the Four Seas Gang: The World of Taiwan’sTriads’, 10 July 2015

    [2] CX6A26A6E10312: ‘How Bamboo grew: 10,000-strong Taiwanese triad linked to Hong Kong executive's kidnapping is ‘one'of world’s most dangerous gangs”. South China Morning Post, 29 October 2015

    [3] CX0D38E8E20610: ‘Taiwan and the Mob’, Diplomat, The, 15 June 2012

    [4] CIS38A80122174: ‘Is Taiwan’s Organized Crime Receding or Going Deeper Underground?’, American Chamber

    of Commerce in Taipei, 24 May 2016.

    [5] CIS38A80122174: ‘Is Taiwan’s Organized Crime Receding or Going Deeper Underground?’, American Chamber of Commerce in Taipei, 24 May 2016

    [6] CX0D38E8E20866: ‘Taiwan - deadly factory mentality’. Global Post, 04 May 2012

1. The Tribunal is aware of considerable and more recent information which reflects that Taiwan police and authorities have taken substantial and productive action to reduce organised crime and general violence including from underground financial transactions, organised crime and involving police corruption in Taiwan over recent years. 

2. 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’.[7]

   [7] Pan J 2016, ‘Alleged gang members arrested’, Taipei Times, 7 January 2016  Report available here: >

   On 26 May 2015 The China Post reported that the Bureau of Investigation (BOI, 調查局) said that the previous day a team of agents from New Taipei District Prosecutors Office (NTDPO, 新北地檢署) Taoyuan branch had searched 11 locations, including Haishan and Luzhou Precincts of New Taipei City Police Department (NTPD, 新北市警察局) and the NTPD Criminal Investigation Division (CID), ‘taking 17 suspects into custody, including police officers, for further investigations’ and had summoned four senior NTPD police officers (two from Haishan Precinct, one from Luzhou Precinct and one from CID) ‘for allegedly shielding and abetting a loan shark and reportedly forcing borrowers to transfer house and land deeds to the alleged loan shark’. Prosecutors said accusations were received in 2014 of NTPD police officers ‘working with a loan shark surnamed Su (蘇) in Luzhou District. Undercover investigations were then conducted’. Su operated near ‘Luzhou Precinct in 2009, allegedly charging exorbitant interest rates’. Prosecutors said the summoned four officers: were suspected of ‘going after the borrowers when payments were not returned on schedule, and forcing them into transferring’ ‘their house and land deeds’ to Su; ‘have each invested with Su, with amounts ranging from NT$500,000 to NT$5 million, and have also reportedly taken monthly bribes from him in cash, allegedly profiting by over NT$10 million between 2009 and 2013.’ Prosecutors were ‘looking into breaches of corruption, fraud, and usury laws’.[8]

   [8] Sun Hsin-hsuan 2015, ‘Police suspected of abetting loan shark’ 2015, The China Post, 26 May 2015: 

3. 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.’[9]

   [9] ‘Violent debt-collecting gang busted by the CIB’ 2015, The China Post, 12 March 2015:

4. 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[10]:

   [10] ‘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.

5. 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’.[11]

   [11] ‘CIB task force busts up loan shark ring, arrests 18 suspects’ 2013, The China Post, 26 January 2013: 

6. 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.[12]

   [12] ‘CIB busts loan shark ring in Nantou, nabs 8 suspects’ 2012, The China Post, 9 November 2012:

7. 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.[13] 

   [13] ‘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 

8. 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...[14]

   [14] ‘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 <

9. The applicant’s new claims raised in his email to the Tribunal are general and unclear.  Had he attended a hearing, the Tribunal would have clarified with the applicant what harms he fears as a consequence of any deterioration in the relationship between Taiwan and China, whether such harm would be ‘persecution’, whether the reason for the harm would be for one or more of the five reasons in s.5J(1)(a), whether it would involve causing the applicant serious harm or systematic and discriminatory conduct, and also what exactly he is referring to when he noted that said ‘Australia is a peaceful country especially under COVID in Taiwan.’  The Tribunal would also have sought clarification from the applicant as to whether these claims would satisfy the complementary protection provisions, namely whether the harms he fears (which are unclear) satisfy the definition of significant harm and whether they pose a real risk of harm to the applicant personally or to the population generally.

10. The Tribunal would also have discussed with the applicant the country information referred to above which suggests that the Taiwanese authorities have taken and continue to take action to reduce the impact of gangs and organised crime over recent years, including action against corrupt police officers.  

11. After considering the material before it, outlined above, the Tribunal is not satisfied that the applicant has established his claim that he faces a real chance of serious harm in Taiwan because he has a debt owed to a moneylender in Taiwan.  The Tribunal is not satisfied of critical details of the claimed debt, such as when the money was borrowed, why exactly it was borrowed, how much was borrowed and on what terms.  The information before the Tribunal does not disclose (and the Tribunal is not satisfied about) the current status of any debt, repayments made or the timing of any threats of harm or actual harm against the applicant, and his family.  The Tribunal does not have sufficient information to identify the specific perpetrators of the harm claimed by the applicant. The Tribunal does not accept that there is a real chance that the applicant will suffer serious harm due to a debt owed if he returns to Taiwan.  Additionally, as found by the delegate, the applicant has not established that the reason for the persecution he claims to fear is one or more of the reasons in s.5J(1)(a) of the Act - namely because of his race, religion, nationality, membership of a particular social group or political opinion.   

12. The Tribunal concludes that the applicant does not have a well-founded fear of persecution in Taiwan from underground banks, gang members or corrupt police, due to him owing a debt.   

    Claim to fear harm due to a conflict between China and Taiwan

13. The applicant claims that he is in fear of being harmed if the security situation between Taiwan and China escalates.  Over recent weeks, there have been increasing tensions between the two nations.[15]  The Tribunal accepts that the applicant (and his family and fellow citizens in Taiwan) would be understandably concerned about the potential for armed conflict with China.  Such concerns are widely shared in the international community.[16]  However, at the date of writing this decision, there is no armed conflict occurring between China and Taiwan. The Tribunal considers this claim that the applicant will suffer harm due to a potential conflict situation which might occur to be speculative and vague in nature; even though the possibility of a conflict between the two countries occurring at some point in the future is not remote.    

    [15] Widely reported but for example:  Taiwanese air force responds to incursion by 19 Chinese warplanes as Beijing stays silent - ABC News; and  China sends 19 aircraft into Taiwan’s air defence zone | Taiwan | The Guardian

    [16] See for example:  China-Taiwan: Will 2019 be the Year of Final Confrontation? | ISPI (ispionline.it)

14. The information before the Tribunal does not suggest what specific harm the applicant fears, or that the applicant fears being personally targeted or suffering serious harm for any particular reason in the event of a conflict occurring with China.  This claim therefore requires the Tribunal to assess the speculative consequences for an applicant of an event which is actually not occurring and may not occur. The Tribunal is unable to reliably speculate about the nature of any potential armed conflict (such as how long it may last and how widespread any conflict related harm will be for the citizens of Taiwan) and even how it will affect ordinary citizens in Taiwan such as the applicant, if indeed it occurs.  The Tribunal considers that, based on the absence of information suggesting that he has a political or military profile, the chance of the applicant suffering serious harm in a conflict between Taiwan and China is probably relatively low.  In any event, there is nothing in the information available which suggests that the applicant would face persecution in a potential conflict between his country and China for one or more of the reasons in s.5J(1)(a) or that the harm he fears (being caught in an international conflict of unknown size or length) would involve targeted and systematic conduct (as required by s.5J(4)(c)). Consequently, the Tribunal concludes that the applicant does not have a well-founded fear of persecution due to a potential conflict between Taiwan and China now or in the reasonably foreseeable future.

    Covid19

15. The applicant has referred to the COVID19 pandemic generally in his email to the Tribunal.  It is presumed that the applicant fears contracting the virus either in travelling to or living in Taiwan, and suffering serious harm as a consequence. 

16. The Tribunal has proceeded on the basis that the applicant fears contracting the virus and becoming sick or dying from it.

17. The pandemic has claimed millions of lives around the world[17].  In the current environment where virus and variants continue to spread, there is conceivably a real chance that citizens of Taiwan (along with citizens around the globe) might contract the virus and become unwell or die from it.  It must be noted, however, that the COVID19 pandemic situation in Taiwan is reportedly currently more well managed and under control than in Australia, with lower community transmission and vaccinations well underway[18]. The applicant has not provided any medical evidence which suggests that he has any particular vulnerability to the COVID19 virus.  In any event, even if there is a real chance that the applicant will catch this virus if he returns to Taiwan, becoming ill from COVID19 and any serious harm associated with becoming unwell would not be for one or more of the reasons in s.5J(1)(a) and would not involve systematic and discriminatory conduct on the part of any person or authority in Taiwan as required by s.5J(4)(c).  For those reasons, the applicant’s claim to fear serious harm due catching the COVID19 virus (even if he was to do so on return and suffer severe illness) does not establish that he has a well-founded fear of persecution.

    [17] World Health Organisation statistics report that as at 10 September 2021 4,592,934 people have died from the disease Coronavirus disease (COVID-19) (who.int)

    [18] According to some recent statistics, Taiwan has only experienced 16,062 cases and 838 deaths to 20 August 2021. Taiwan COVID: 16,062 Cases and 838 Deaths - Worldometer (worldometers.info).  See also:  Why Taiwan Is Beating COVID-19 – Again – The Diplomat 

18. In summary, and for the reasons given above, having considered the applicant’s claims individually and cumulatively, the Tribunal finds that the applicant has not established that he has a well-founded fear of persecution now or in the reasonably foreseeable future in Taiwan for any reason.  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

19. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

20. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has not accepted that there is a real chance that the applicant will suffer persecution from an underground bank, from gangsters, the police or authorities in Taiwan due to him owing a debt. For those same reasons as discussed above, the Tribunal finds that the applicant has not established his claim that there is a real risk that he will suffer significant (or any) harm from gang members or moneylenders, or from corrupt police or authorities if he is returned to Taiwan.

21. In relation to the potential for harm due to a Taiwan/China conflict, the Tribunal considers that, even if it were accepted for the purposes of this review that there is a real risk that a conflict may occur and that the applicant will suffer harm due to such conflict, as noted above, the limited information before the Tribunal does not suggest that the applicant faces any risk of harm which is specific to himself or greater than that faced by the population generally.  In those circumstances, the provisions of s.36(2B)(c) apply – namely the real risk is one which is faced by the population of the country generally and not by the applicant personally and therefore there is taken not to be a real risk that the applicant will suffer significant harm for that reason in Taiwan.  

1. In relation to the COVID19 pandemic, the Tribunal accepts that there is a real risk that the applicant could contract the virus in Taiwan if he returns, particularly given current information about the ongoing spread of the virus and attempts to manage it.    However, the contraction of the virus would not be due to any act or omission by any person or authority in Taiwan whereby that harm was intentionally inflicted on the applicant.  The harm from contracting the virus cannot meet the definition, in the Tribunal’s view, of ‘significant harm’ for the purposes of considering the application of the criteria in s.36(2)(aa).  The Tribunal also considers that the real risk of contraction of COVID19 faced by the applicant is one which is faced by the Taiwanese community generally and not by the applicant personally (s.36(2B)(c)).

2. The Tribunal has considered the applicant’s claims individually and cumulatively but is not satisfied that 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 the applicant will suffer significant harm. 

3. The Tribunal is 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).

4. 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

5. 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.

   …