1712112 (Refugee)

1712112 (Refugee) [2020] AATA 3834 (9 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712112
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Paul Windsor
DATE:9 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 September 2020 at 3:12pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – fear of harm from gangsters acting on behalf of banks – declared bankrupt because of ex-husband’s credit card debts in her name – credibility – lengthy delay before departing – no harm and no approach to police – period as unlawful non-citizen – delay in applying for protection – inconsistent evidence – no documentary evidence of debt or bankruptcy – country information about identity fraud, financial crime and enforcement – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 2 June 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 12 November 2015.
In her protection visa application the applicant indicated she was born on [Date] in Taipei City, Taiwan. She stated she is of Chinese ethnicity, is a Taoist, and was divorced [in] February 2006. She indicated she departed Taiwan legally on [Date 1] October 2014 on a Taiwanese passport issued [in] 2014 and arrived in Australia on [Date 2] October 2014, entering on a visitor visa.[1]
[1] See the Departmental file.
In her application, the applicant indicated that she sought protection in Australia because her ex-husband used her name until she had a huge credit card debt and was listed as bankrupt.[2]
[2] See the Departmental file.
The delegate refused to grant the visa finding that the claimed fear of harm is not for one or more of the five reasons mentioned in s.5J(1)(a) of the Act. In relation to the complementary protection criterion, the delegate, after considering relevant country information, found the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that she will suffer significant harm.
The applicant applied to the Tribunal for review of this decision on 7 June 2017. She provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See the Tribunal file.
The applicant appeared before the Tribunal by telephone on 8 September 2020. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims for protection were set out in her protection visa application. Her claims were as follows (as written by the applicant):[4]
[4] See the Departmental file.
89. I am seeking protection in Australia so that I do not have to return to:
I'M WORRY WILL BE HARM IF I IN TAIWAN. THAT'S WHY I'M SEEKING PROTECTION IN AUSTRALIA.
90. Why did you leave that country?
AS STATEMENT OF CLAIM.
(The applicant included the following statement of claims)
ATTACHED STATEMENT
Part 3 : Question 90.
I, [the applicant] from Taiwan. In age [range] I worked in [a shop] which selling various of [products]. After few months joined this store, I reconized a guy and later I started relationship with him.
And almost 4 years couple with him, one day he surprising me and asked me to marry him. Without
further thinking, I promised him. After married, I been promoted as store manager. However, most of the
income will save into bank for future planning and the ATM card hold by my husband because sometime
he needs to buy daily usage such as meat, groceries, and others. In [year], I give birth a daugther and when my daugther [age] year old, I divorce with my husband because he owed outsider a lot of money even his family too. I'm worry in future any unwilling happen will involved me and my daugther, so I decided to divorce with him. After divorced, I still keep going my work in the store and my daugther I send at nanny to look after. When she almost turn [age] year old and need to enrol in primary school, I quitted my current job and run my own [business] at home [because] I got flexible time to pick-up her in school. After [age] years, one day a call from bank staff ring me regards my credit card been over due. I replied. I'm not using any credit card at all. The bank staff told me it is under your name. Then I go to bank and find out whether any wrong info. Finally I found out that my former husband used my detail to apply credit card without my notice and the over due amount almost TWD2 Million. I was shocked and ask the bank staff to double check and re-check. Then they printed out the credit card statement and showed to me. I told the bank staff why not inform me early, but she replies they can't contact me as I quitted the job and changed phone number. I changed phone number because I want to avoid from my former husband interrupt. In that moment, I was reflective because I can't imagine such happened on me. The bank staff also advised me to repay as soon as possible otherwise bank will take action on me. If needs to repay minimum payment, I still unable to pay as I need to grow-up my daugther and for daily expenses. I tries to look my former husband, but he and family been moved house. Few months later, bank send me a letter and noticed that I been listed in bankruptcy because of failed repayment. When I saw it, I was no ideal how to solve this problem. At lastly I'm forced to keep my daugther at my auntie house at Kaohsiung, Taiwan for temporary take care of her. Before bank appointed outsider to collect the credit card debt, I decided to leave country (Taiwan). Finally I arrived in Australia and felt in here for me can start a new life and hopes in the future can fetch my daugther stay together with me here for permanently.
Truly written, (Signature)
([The applicant])
91. What do you think will happen to you if you return to that country?
I FEEL WILL BE HARM IF I FAIL TO REPAYMENT THE DEBT WHICH OWED BY MY PREVIOUS PARTNER (HUSBAND), BUT UNDER MY NAME.
92. Did you experience harm in that country? No
93. Did you seek help within that country after the harm? N/A
94. Did you move, or try to move, to another part of that country to seek safety? No
I THINK TO MOVE TO ANOTHER PART OF THE TAIWAN, BUT CANT BECAUSE MY PREVIOUS PARTNER (HUSBAND) USED MY NAME UNTIL I OWED HUGE AMOUNT IN CREDIT CARD AND I BEEN LISTED IN BANKRUPTCY. IF I MOVE WITHIN TAIWAN, THEY'LL SEARCH ME AT LASTLY TO COLLECT THE DEBT FROM ME. THEY (BANK) WILL APPOINTED SOMEONE COME TO COLLECT AND NORMALLY WILL BE THE TAIWAN GANGSTER. THAT'S WHY I DIDN'T TRY TO MOVE.
95. Do you think you will be harmed or mistreated if you return to that country? Yes
BANK APPOINTED PEOPLE WILL COLLECT THE DEBT FROM ME. IF I FAIL TO REPAY, THEY'LL WARN EVEN HARM ME.
96. Do you think the authorities of that country can and will protect you if you go back? No
THE AUTHORITIES CAN’T PROTECT ME ALWAYS BECAUSE THE DEBT UNDER MY NAME. THEY CAN'T DO ANYTHING AT LEAST I'M SERIOUSLY BEEN HARMED. IN THAT TIME, I THINK TOO LATE IF I BEEN HARMED.
97. Do you think you would be able to relocate within that country to an area where you would not be harmed? No
AS QUESTION 94.
Findings and reasons
Identity
On the basis of the copy of her Taiwanese passport submitted to the Department,[5] the Tribunal accepts that the applicant is a national of Taiwan and that her identity is as claimed. The Tribunal accepts that Taiwan is her ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[5] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Taiwan, there is a real risk she will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Credibility
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
For the reasons set out below the Tribunal found that the applicant was not a credible witness. The Tribunal considers that she has concocted her claim that her ex-husband ran up a huge debt which she is now responsible for and which resulted in her being listed as bankrupt.
Assessment of claims
Background
At the start of the hearing the applicant indicated that everything in her application was true and correct as far as she knew and believed. She indicated that there were no mistakes in her application that she wished to correct. As indicated in her application, she said she had assistance from a friend to complete her application. She said she did not pay her friend, who is from [Country], but her friend helped her to translate from Mandarin to English. When asked if she was happy that her friend’s translation is correct she said she told her friend what happened and her friend translated it into English and wrote it down.
The applicant indicated that she has had no contact with her mother since she was a young child as her parents separated when she was very young. She indicated that her father lives in Taipei while she has a [brother] living in Taoyuan City (adjacent to Taipei). She confirmed that she has a daughter born in [Year] (as indicated in her application) and said her daughter lives with the applicant’s aunt in Kaohsiung City in southern Taiwan. She said her daughter is now [Age] years old and is studying at high school.
The applicant confirmed that in Taiwan she had worked in a [store] and had then run her own business selling [products] (from a roadside stall), so she could care for her daughter (in her application she indicated she worked as a ‘[Manager]’ at a [store] from July 1997 until October 2009 and then worked as a self-employed [reseller] from November 2009 until September 2014).
The applicant confirmed that she and her ex-husband divorced [in] February 2006, as indicated in her application, but also said her ex-husband had passed away. She said he passed away after she lodged her protection visa application in November 2015.
The Tribunal also queried the applicant that the delegate’s decision record, a copy of which she provided to the Tribunal, indicates that she overstayed her visitor visa after she arrived in Australia [in] October 2014 and was an unlawful non-citizen for 9 months and 24 days before she made a protection visa application. The Tribunal asked her why she overstayed her visa. She replied that, at first, she thought she could work in Australia without having a valid visa but she found many employers would not employ someone who did not hold a visa with work rights, so she had ‘no choice’ but to apply for a protection visa so she could get the right to work in Australia.
The Tribunal asked the applicant why she left Taiwan and came to Australia. She said in Taiwan she had credit bankruptcy and it was hard for her to do business there so she thought she should come to Australia.
Claim that she was declared bankrupt
The Tribunal asked the applicant why she was declared bankrupt. She commented that when she worked at the [store] she worked long hours (10 hours a day) so her husband asked her to leave the credit card at home. She said her husband used her salary and exceeded all the limits of the credit card. She said she did not notice this until the bank sent her notice that she was in debt for over NT$2 million (the equivalent of approximately AUD93,680 at the current exchange rate).
The Tribunal queried the applicant why she would not have noticed this if the bank was sending statements that the credit limit had been exceeded. She replied that the notices they sent did not tell her she had exceeded the limit they just requested that she pay the balance. The Tribunal queried her if that was the case wouldn’t she have been able to see what the balances were. The applicant replied that she thought maybe her husband could pay because he was in control of their finances. She said he worked in a ‘delivery job’ and had a much more flexible schedule so she found it very strange that he could not pay the balance.
The Tribunal sought to clarify that the debt she was referring to was a credit card debt. The application said that in Taiwan there is a card called a ‘cash card’ which is used to access money from ATMs. She said her husband took out all the cash and also exceed all the limits on the credit card. The Tribunal sought to clarify whether she was referring to two separate cards - a cash card and a credit card. The applicant replied that her husband was in control of their finances and there was a debit card, a cash card and a credit card. The Tribunal asked the applicant what the difference is between a cash card and a debit card. She replied that a cash card can be used to get money at an ATM but at an interest rate like a credit card.
Noting that in her application the applicant claimed that her problem was that her husband obtained a credit card in her name without her knowledge after they divorced in February 2006 and ran up a large debt, the Tribunal asked the applicant if she is saying this happened while she was still with her husband. She replied ‘yes’. The Tribunal queried that she had indicated that they divorced in February 2006. She acknowledged this was the case. The Tribunal queried her that she remained in Taiwan for another eight years until October 2014 and asked what happened over that time. The applicant indicated that while she had been working in the north of Taiwan, because of the debt she had to move to the south, and it was there that she set up a stall to sell [products]. The Tribunal queried the applicant that in her application she stated that she lived in Taipei until she came to Australia. She said she had to hide because of the debt and because her ex-husband was looking for her to harass her because he wanted them to be together again. The Tribunal queried the applicant that in her application she stated that she did not move to another part of Taiwan (her application states that she thought about moving but didn’t because her husband used her name until she owed a huge credit card debt and she was listed as bankrupt, commenting that if she moved the bank would search for her and appoint someone to come and collect the debt, who will normally be a Taiwan gangster). The applicant said she did not know why her application stated that, commenting that she told her friend who assisted her with the application (that she had moved).

The Tribunal asked the applicant what she fears if she was to return to Taiwan now. She said she has been living in Australia for such a long time she fears she will not be able to adjust to the lifestyle in Taiwan and because of the salaries in Taiwan she may not be able to raise her child. She added that now that her ex-husband has passed away she fears some of the people he owed money to will look for her plus the bank hired an external agency to collect the debt she owes. The Tribunal asked her about the size of the debt she owes to the bank. She replied that it is about NT$2 million. The Tribunal queried the applicant that in her application she stated she had not experienced any harm while she was in Taiwan. She acknowledged that was the case. When asked why she thought she might be harmed now if she returned to Taiwan the applicant said now her ex-husband has passed away his family says he owed a lot of money and she fears she might be implicated. The Tribunal finds this is entirely speculative and is not supported by the fact that the applicant divorced her husband over 14 years ago in February 2006 and has not indicated that she faced any harassment or harm from any of her ex-husband’s claimed non-bank debtors in the over eight years she remained in Taiwan from the time of their divorce until she came to Australia in October 2020, or that any of her family member, such as her father in Taiwan, have been approached by any persons regarding debts incurred by her ex-husband.
The Tribunal put to the applicant that her written statement is quite different from what she has told the Tribunal at the hearing, as it indicates that the debt arose after she was divorced from her husband because he used her details to apply for a credit card without her knowledge. The applicant replied that she doesn’t think it is that different only that the story is a little more detailed but that is basically what happened. She added that it is impossible for her to get a job in Taiwan now because of the money she owes to the bank. When the Tribunal put to her that it is a completely different story as she is now saying the debt was incurred when she was married, the applicant said she did not know what her friend put in the application because she told her story to her friend in Mandarin.
The Tribunal queried the applicant that her written statement indicates that the bank issued the credit card incorrectly because her ex-husband had committed fraud by using her identity without her permission, and therefore the bank should be responsible for the debt. The applicant replied that in Taiwan if a credit card is under her name she is responsible for whatever happens in relation to debts on that card. The Tribunal put to the applicant that the bank is responsible for ensuring it is issuing a credit card to the correct person, not someone using another person’s identity and therefore does not accept that she is responsible for a debt incurred on a credit card that was issued incorrectly by a bank due to fraud committed by her ex-husband.
In this context the Tribunal put to the applicant for comment country information drawn from the following material relevant to activities by the Taiwanese authorities to address financial crime:
·     Operating within a low-crime environment (Taiwan has a low crime rate (1.3 per cent) and one of the lowest violent crime rates in the world (0.01 per cent)), the Taiwanese National Police Administration (NPA) is effective and well-regarded. The NPA’s main missions are to carry out police and law enforcement in Taiwan, maintain public order, uphold the safety of its citizens and society, prevent hazards and promote the welfare of its citizens.[6]
·     In 2016, an independent survey showed rising levels of confidence in citizen satisfaction with the police, reaching over 73% in that year.[7]
·     The NPA’s Criminal Investigation Bureau (CIB) has an Anti-Organized Crime Division which is in charge of the implementation of a number of dedicated operations targeting organized gangs and criminal syndicates.[8]
·     The Organized Crime Prevention Act has been instrumental in combatting organized crime.[9]
·     The NPA conducts operations against criminal gangs involved in loan sharking and other associated activities. Violations of domestic financial rules, such as loan sharking operations or underground economic activity, totalled 947 cases (19 per cent of total economic crimes from January to August 2016) causing a loss of NT$6.3 billion (or 36.5 per cent of total losses from economic crimes). Police arrested 1,863 suspects for financial rule violations during this period.[10]
·     Various press report indicate that action is taken by the Taiwanese authorities to address loan sharking and the use of gangs to recover money, including the arrest of corrupt police suspected of colluding with loan sharks.[11]
·     The judiciary in Taiwan is independent, with court rulings generally free from political or other undue interference.[12] The judicial system provides ample opportunities to seek redress for rights violations, with court trials following due process.[13] Judicial corruption is not endemic. Nonetheless, throughout her presidential campaign President Tsai has highlighted judicial reform as one of the core policy goals of her administration in order to address popular mistrust in the country’s court system.[14]
·     In their 2019 Corruption Perceptions Index (CPI), Transparency International ranked Taiwan 28^th out of 180 countries and territories (in the top 17 per cent of most clean countries and territories). The CPI scores the 180 countries and territories by their perceived levels of public sector corruption, according to experts and businesspeople. Taiwan achieved a score of 65 where 0 is highly corrupt and 100 is very clean (the highest score achieved was 87/100 and the lowest was 9/100, while the average score was 43/100).[15]
[6] ‘Taiwan 2018 Crime and Safety Report’, Overseas Security Advisory Council (OSAC), US Department of State, 2 July 2018, CIS7B839419268.
[7] ‘Statistics shows satisfaction with police reached all-time high 73.3%’, National Police Agency, Ministry of Interior, 23 September 2016
[8] ‘[Criminal Investigation Bureau.] Anti-Organized Crime Affairs’, Criminal Investigation Bureau, 25 May 2015, CISEC96CF14279
[9] ‘Is Taiwan’s Organized Crime Receding or Going Deeper Underground?’, Taiwan Business Topics, 24 May 2016, ‘IPR violations make up majority of economic crimes in Taiwan’, Focus Taiwan, 22 October 2016, ‘Taiwan police suspected of abetting loan shark’, Asiaone news, 26 May 2015, ‘Freedom in the World 2018 – Taiwan’, Freedom House, January 2018, p.4, F. Rule of Law, NGED867A615
[13] ‘BTI 2018 Country Report – Taiwan’, Bertelsmann Stiftung, 23 March 2018
[14] Ibid
[15] Transparency International, Corruption Perceptions Index, 2019, >
When queried that it seems she could have obtained support from relevant Taiwanese authorities to challenge the claimed debt given it was due to identity fraud the applicant replied that it is really hard to lodge a lawsuit against a dead person. The Tribunal found this response unconvincing given her ex-husband was still alive at the time the claimed debt was incurred.
The Tribunal asked the applicant if she ever went to the police about the matter. She indicated that she did not. When asked why not, given she was the victim of identity theft and the bank should not have issued the credit card, the applicant said it was because when she and her husband were divorced, he told her that he would take responsibility for 50 per cent of the debt he owed. She added that he did not pay any of the debt.
The Tribunal also queried the applicant that the claimed debt of NT$2 million amounts to the equivalent of around AUD93,000 and asked what the credit limit was on the card, commenting that in Australia credit cards usually have a limit of AUD10-15,000 and a stop will be put on the card by the issuing bank if that limit is exceeded. The applicant replied that she had many cash cards and many credit cards but did not use them so they were all at home. When queried why she had so many cards if she did not used them, the applicant commented that when she worked at the [store] they would collaborate with other stores and get discounts if they applied for cards.
Having carefully considered all the available evidence and the relevant country information, the Tribunal concludes that the applicant was not the victim of credit card fraud by her ex-husband. The Tribunal finds that she does not owe a debt to a bank or other financial institutions of approximately NT$2 million. The Tribunal also finds that she has not been listed as bankrupt. This is for the following reasons, considered cumulatively.
Firstly, the Tribunal finds that there are significant and material inconsistencies between the applicant’s written statements of claims in her application and her evidence at the hearing. Her written statements clearly indicated that the debt of almost NT$2 million was incurred by her husband well after they divorced in February 2006 (and after her daughter, born in [Year], had commenced school once she turned [age]). The applicant stated that she found out that her former husband used her details to apply for a credit card without her knowledge. At the hearing, however, she claimed that her husband used multiple cash, debit and credit cards that she left at home to rack up debt while they were living together (prior to February 2006), because he looked after their finances. In her statement the applicant indicated that after being advised of the debt she looked for but could find her ex-husband or his family to talk with them about the claimed debt because they had moved-house. At the hearing, however, she indicated that she did not seek to take legal action in relation to the claimed debt because her husband said he would repay half of it. In the application she indicated she did not try to relocate in Taiwan because bank appointed debt collectors, who would likely be gangsters, would search for her, but at the hearing she said she moved from Taipei in the north of Taiwan to Koahsiung in the south to hide. The Tribunal found entirely unconvincing the applicant’s explanation for these significant differences in her account of key elements of her claims – that the person who assisted her with the translation of her claims from Mandarin into English must have made mistakes. These inconsistencies are not errors of detail but are significant and material differences and it is not plausible that someone translating the applicant’s account from Mandarin to English could have inadvertently altered her account so fundamentally.
Second, the applicant has not provided any documents in support of her claims to have owed a huge debt to a bank (or any other financial institutions) and to have been declared bankrupt. If this was the case the Tribunal expects that she would have provided bank statements, letters of demand and/or court documents evidencing the debt, demands for payment of the debt and the listing of her as being declared bankrupt.
Third, the applicant’s written statement implies that she departed Taiwan for Australia shortly after a bank advised her to repay the debt of almost NT$2 million as soon as possible. She commented that a few months later the bank sent her a letter which she noticed listed her ‘in bankruptcy’ and she decided to leave Taiwan for Australia before the bank appointed an outsider to collect ‘the credit card debt’. At the hearing, however, she indicated that the debt arose prior to her divorce in February 2006, over eight years before she came to Australia in October 2014. When queried about this, and that she indicated in her application that she did not suffer any harm while she was Taiwan, the applicant acknowledged this was the case but said she moved to the south of Taiwan to hide and now fears that if she returns she will not be able to adjust to the ‘lifestyle’ in Taiwan, will not be able to earn enough to raise her child, may be harassed by her husband’s debtors and fears debt collectors from the bank. The Tribunal found this account unconvincing. The Tribunal does not accept that the applicant would not have been located in Taiwan, including in the south of Taiwan, by debt collectors engaged by a bank over a period of more than eight years from February 2006 until October 2018, or by persons, including underground figures, seeking repayment of debts incurred by her husband. The Tribunal also notes that the applicant indicated that she was always in employment while she was in Taiwan, including over the period from 2009 until 2014, when she claims to have worked as a self-employed [reseller]. Accordingly, while the Tribunal accepts that wages in Taiwan are significantly lower than they are in Australia, the Tribunal does not accept that the applicant would not be able to readjust to the ‘lifestyle’ in Taiwan, find employment and earn enough to support herself and her child in Taiwan. In this respect the Tribunal also notes that her child is currently living with an aunt and the applicant also has her father and a brother living in Taiwan, some or all of whom might reasonably be expected to assist her to readjust to life in Taiwan.
Fourth, the Tribunal found unconvincing the applicant’s comments that she did not go to the police or seek legal assistance regarding the claimed identity fraud by her ex-husband, a bank having issued a credit card in her name based on identity fraud, and the bank then considering her responsible for a claimed NT$2 million debt. The applicant indicated that she earned between NT$30-40,000 per month while she worked in the [store] in Taiwan. It is likely that she could never repay such a debt and therefore she would have had a very strong incentive to take legal action against her ex-husband (while he was still alive) and the bank. Noting the actions by the Taiwanese authorities addressing financial crime discussed with the applicant, the Tribunal does not accept the applicant’s uncorroborated claim that in Taiwan a person is responsible for debt incurred in their name, even if the credit card was inappropriately issued based on identity fraud. The Tribunal also notes that the applicant has claimed that her ex-husband passed away after she lodged her protection visa application in November 2015, so there is no reason why she could not have instituted legal proceedings against him in Taiwan before she departed in October 2014.
Fifth, having altered her account at the hearing to state that the claimed debt was incurred while she was still living with her husband prior to their divorce in February 2006, the Tribunal found the applicant’s evidence at the hearing regarding not having noticed bank statements and notices regarding the level of debt being incurred on various debit, cash and credit cards to be highly improbable. The Tribunal does not accept that she would not have noticed or been warned (by telephone) by the financial institutions involved that massive debt was being amassed, or that the cards would not have been stopped once debt limits, set to match her earning capacity of NT$40,000 per month, had been exceed. The Tribunal also considered that the applicant progressively altered her evidence in response to the Tribunal’s queries, noting that in her written statement she referred to a single credit card debt with a single bank but at the hearing she referred to a ‘cash card’ and credit card debt, then a cash card, debit card and credit card debt, and then, when queried about card limits, stated that she had many cash cards and credit cards.
Sixth, the Tribunal found unconvincing the applicant’s written statement that banks in Taiwan normally appoint gangsters to collect debts. Noting the country information put to the applicant regarding the low levels of corruption in Taiwan, the low crime rate, and citizens’ relatively high levels of satisfaction with the NPA, the Tribunal considers there is nothing to indicate or suggest that banks operating in the formal financial sector in Taiwan engage gangsters to undertake debt collection.
As noted above, the Tribunal also finds that there is no evidence to indicate or suggest that the applicant has been or might in the future be implicated in any other debts her ex-husband might have incurred in the past.
Refugee criterion
Given the Tribunal’s findings above, the Tribunal finds there is not a real chance that the applicant will face treatment amounting to persecution involving serious harm at the hands of bank appointed debt collectors, her ex-husband’s debtors, Taiwanese government authorities or Taiwanese employers (because she claims to have been listed as bankrupt), for one or more of the five reasons mentioned in s.5J(1)(a) of the Act, should she return to Taiwan in the reasonably foreseeable future.
Accordingly, 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 criterion
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Taiwan, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[16]
[16] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Taiwan, there is a real risk that the applicant would suffer significant harm as set out in s.36(2A), from bank appointed debt collectors, her ex-husband’s debtors, Taiwanese authorities, Taiwanese employers (because she claims to have been listed as bankrupt), or anyone else.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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.
Paul Windsor
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.
…

‘142 suspects arrested ahead of presidential, legislative elections in Taiwan’, Asiaone news, 20 December 2015, gang members arrested’, Taipei Times, 7 January 2016, Taipei gang busted’, Taiwan Criminal Investigation Bureau, 19 August 2016, CIS38A80123711

[2020] AATA 3834

9 September 2020

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Immigration

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