1713426 (Refugee)

[2022] AATA 710

1713426 (Refugee) [2022] AATA 710 (10 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713426

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:L. Symons

DATE:10 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 10 February 2022 at 5:44pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – Myanmar – business partner disappeared with borrowed money – threats of harm by gangsters – dual citizenship – delay in applying for protection – vague and inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 31 May 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, first arrived in Australia [in] August 2012 as the holder of a Working Holiday (TZ-417) visa. On 29 March 2013, he lodged an application for a Working Holiday (Extension) (TZ-417) visa which was granted on 1 May 2013. [In] August 2014, he departed Australia. [In] November 2014, he returned to Australia as the holder of another Working Holiday (TZ-417) visa. On 5 July 2015, he lodged an application for a Working Holiday (Extension) (TZ-417) visa which was granted on 13 July 2015. [In] March 2016, he departed Australia.

3. [In] May 2016, the applicant arrived in Australia as the holder of another Working Holiday (TZ-417) visa. On 16 June 2016, he lodged an application for a [student] visa which was granted on 27 July 2016.

4. The applicant applied to the Department of Immigration (the Department) for a Protection visa (XA-866) on 14 October 2016. On 31 May 2017, the delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 23 June 2017, he applied to the Tribunal for a review of that decision.

5. The applicant appeared before the Tribunal, via video, on 29 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion. 

   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 AND FINDINGS

13. The applicant’s claims in his application for a Protection visa are summarised as follows:

    ·     After graduating university, he worked in a restaurant. After gaining experience, a friend suggested that they open a restaurant together. They organised to borrow money from other friends, but after the funds were ready his business partner suddenly disappeared with the money. The creditors came to him seeking repayment, but his income was insufficient to repay the debt and as a result the debt increased with daily interest.

    ·     Some of the creditors were gangsters. They went to his home, stalked him, and threatened to beat him and intimated that his life will be in danger if he does not repay the debt. They also went to his workplace “and made trouble”. As a consequence, he lost his job.

    ·     He reported his situation to the Police, but they did not take any action to protect him.

    ·     He had no choice but to escape to Australia to avoid further harm and persecution.

    ·     If he is returned to Taiwan, he will be stalked and harmed continuously by the creditors. His security cannot be guaranteed, and he will be living in fear all day. They will take “various violent means” to make him repay the money, his life will be in danger, and he cannot have a normal life. The creditors will intimidate and threaten him daily. No matter where in Taiwan he moves, he will be hunted and stalked. The creditors will find him because Taiwan is a small country.

    ·     The authorities did not protect him before and they will not protect him if he is returned to Taiwan.

14. The applicant provided the Department with a scanned copy of the biometric data page of his Taiwanese passport issued [in] 2016 and expiring [in] 2026.

15. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 31 May 2017.

    Receiving Country

16. The applicant claims to be a citizen of Taiwan and has provided a copy of his Taiwanese passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Taiwan. The Tribunal finds that Taiwan is his receiving country for the purpose of assessing his claims for protection under the refugee criteria and under the complementary protection criteria.

    Third Country Protection

17. During the hearing, the applicant gave evidence that his father was Taiwanese and his mother was Burmese. He has dual citizenship of Taiwan and Myanmar. He has a right to enter and reside in Myanmar. In view of the Tribunal’s findings below in relation to Taiwan, the Tribunal does not propose to make any findings in relation to Myanmar for the purposes of s.36(3) of the Act.

    Assessment of claims

18. The applicant gave evidence to the Tribunal that he prepared his application for a Protection visa after watching a tutorial on how to prepare the visa application. The information in his visa application is true and correct and he is satisfied that his visa application is accurate and complete. Since he filed his application for a Protection visa, he has managed to pay off the majority of his debts in Taiwan. There is a small amount outstanding. He subsequently gave evidence that a friend advised him on what to say in his claims for protection.

19. During the hearing, the Tribunal discussed with the applicant his background, his family, his education, where he lived in Myanmar and Taiwan, his employment, why he left Taiwan and why he fears returning to Taiwan. The Tribunal found aspects of his evidence to be vague, evasive, implausible, contradictory and unconvincing. There were significant inconsistencies between his written evidence and his oral evidence and within his oral evidence. He was unable to give a consistent and coherent account of events. He made new claims during the hearing. His conduct in Taiwan and in Australia was not consistent with his claims. The Tribunal finds that he is not a reliable witness for the following reasons:

20. First, in his application for a Protection visa, the applicant claimed that after graduating from university he worked in a restaurant. After gaining experience, a friend suggested that they open a restaurant together. During the hearing, he stated that the only work he did in Taiwan was as a kitchen hand. (In his visa application, he stated that he worked in Taiwan as a cook and last worked in Taiwan in January 2012). The Tribunal finds it implausible that working as a kitchen hand would have given him sufficient experience to open and operate a restaurant business and that his friend would have suggested that they open a restaurant together on the basis of this experience. This raises issues in relation to the veracity of his claims.

21. Second, in his visa application, the applicant claimed that he and his friend organised to borrow money from other friends and some of these friends (creditors) were gangsters who subsequently went to his home, stalked him, went to his workplace and caused problems resulting in him losing his job, threatened to beat him and intimated that his life would be in danger if he did not repay the debt. However, during the hearing, he gave evidence that he has never been friends with gangsters in Taiwan. This inconsistency in his evidence raises concerns in relation to his credibility and the veracity of his claims.

22. Third, in his visa application, the applicant claimed that he and his friend organised to borrow money from other friends to open a restaurant together. However, during the hearing, he gave different and contradictory evidence in relation to who borrowed the money and from whom the money was borrowed. He initially stated that when he was investing in a restaurant business, he was threatened by illegal money lenders and wanted to leave Taiwan. He then stated that he was threatened by criminal organisations. When asked why he was threatened, he responded that the “core investor” borrowed money from criminal organisations. His sister provided his details to the “core investor” and he then became the guarantor on the loan.

23. The Tribunal asked the applicant what his sister had to do with the loan arrangements. He responded that he left his personal documents with his sister and asked his friend to get his documents from his sister. He was deceived by his friend. He did not know that his friend used the documents to borrow money using him as the guarantor on the loan. Later in the hearing, he changed his evidence and stated that his friend borrowed the money in his name. When the Tribunal reminded him of his earlier evidence that his friend borrowed the money and he was the guarantor on the loan, he responded that his friend took out a loan with his documentation.

24. These inconsistencies in the applicant’s evidence in relation to who borrowed the money, from whom it was borrowed and whether or not he was a guarantor on the loan raise issues about his credibility and the veracity of his claims.

25. Fourth, in his visa application, the applicant claimed that after his friend disappeared with the money they borrowed, the creditors came to him seeking repayment but his income was insufficient to repay the debt. He claimed that they went to his home, stalked him, went to his workplace and caused problems that resulted in him losing his job, threatened to beat him and intimated that his life would be in danger if he did not repay the debt. He claimed that he had no choice but to escape to Australia to avoid further harm and persecution. (He first came to Australia [in] August 2012).

26. During the hearing, the applicant gave contradictory evidence. He stated that the money was borrowed by his friend from an illegal money lender in 2014 whilst he was living and working in Australia. He and his friend started making plans for the restaurant in 2014. His friend asked for his personal documents for the planning of the restaurant. His friend got his personal documents from his sister and used them to obtain a loan from a money lender.  

27. The applicant made a new claim during the hearing that he invested 10 million Taiwan new dollars in the planned restaurant. This was the equivalent of AUD$500,000.00. When asked where he got the money from, he responded that it was a combination of past savings and the money he earned in Australia. He transferred money from Australia to his eldest sister (in Taiwan) and she took the money to his friend. In 2015, some of his other friends warned him about the friend he went into business with and told him that he is a deceptive person. He immediately stopped transferring money to him. When he tried to contact him, he realised that he had returned to Myanmar and disappeared (with the money).

28. In view of the applicant’s evidence to the Tribunal that the only work he did in Taiwan was as a kitchen hand and his evidence in his visa application that he stopped working in Taiwan in January 2012, the Tribunal doubts that he would have had any substantial savings in Taiwan particularly if he had to support himself and his mother and siblings in Myanmar from January 2012 until September 2012 when he started working in Australia and he had to pay for his visa and travel to Australia [in] August 2012. The Tribunal does not accept that he would have saved approximately AUD$500,000.00 working in Australia between September 2012 and 2015 particularly in view of the type of work he did and the income he earned.

29. The applicant’s evidence was that he started working as a [cook] in September 2012 but the restaurant closed for the summer and winter holidays. He then obtained a job in 2013 as a packer [at a factory]. The income he earns as a packer is approximately AUD$50,000.00 per annum. He has done no other work in Australia. In view of the above, the Tribunal does not accept that he would have invested AUD$500,000.00 into the restaurant for his half share in the business.

30. The Tribunal raised as issues with the applicant the significant inconsistencies between his evidence to the Department and his evidence to the Tribunal, the new claims he had made during the hearing and its concerns in relation to his credibility. He responded that he prepared his own visa application. He could only put in what he could due to his limited language abilities. He knew that this was part of the process and his visa application would be rejected but also knew that he could give a fuller account before the Tribunal.

31. The Tribunal noted that in his visa application the applicant claimed that he went to the Police after he was threatened by gang members. However, he told the Tribunal that he did not go to the Police because he did not want to make things worse. The Tribunal informed him that it did not accept that this inconsistency in his evidence was due to limited language abilities. He responded that he put this in his visa application at the suggestion of a friend who told him that the Department is interested in that kind of a story and it would help his case. His response exacerbates the Tribunal’s concerns in relation to his credibility and the veracity of his claims. The Tribunal does not accept that he prepared his visa application on his own.

32. The Tribunal raised as issue with the applicant its doubts that he would have been able to save AUD$500,000 doing the kind of work he had been doing. The Tribunal noted that, based on his evidence about his salary, it was not possible that he could have saved AUD$500,000.00. He responded that that is why he stayed in Australia all these years. He had savings from working from 2012 and 2016 and was able to invest in the business. Later he started saving money again. He knows that AUD$500,000 is no small amount. That is why he chose to remain at the [factory]. The Tribunal is not persuaded by this explanation and does not accept it.

33. These new claims, the implausibility of these claims and the inconsistencies in the applicant’s evidence raise issues in relation to his credibility and the veracity of his claims.

34. Fifth, during the hearing, the applicant made new claims that he returned to Taiwan in March 2016 and some gang members went to him to collect the money owing to them. They threatened him and beat him up. He had to stay at his sister’s house to recover. They threatened him that if he did not repay the loan, they would hurt his sister and family. When asked whether he reported the assault to the Police, he responded that he did not as he was too fearful to do so. He was dealing with powerful and influential gang members and did not want to get into more trouble.

35. The applicant also gave inconsistent evidence that he had to return to Myanmar because of his mother. His mother, [and some siblings] lived in Myanmar. His mother was not well and passed away in 2016.

36. These new claims and the inconsistencies in the applicant’s evidence raise issues in relation to his credibility and the veracity of his claims.

37. Sixth, the applicant’s conduct in Taiwan was not consistent with his claims. His evidence to the Tribunal was that his father was Taiwanese and his mother was Burmese. He has dual citizenship of Taiwan and Myanmar. He has a right to enter and reside in Myanmar. He grew up in Myanmar and went to school there. He then went to Taiwan to attend university and thereafter lived and worked in Taiwan until he came to Australia [in] August 2012.

38. If creditors, or illegal money lenders or gangsters or people involved in organised crime went to the applicant’s home in 2012, stalked him, went to his workplace and caused problems resulting in him losing his job, threatened to beat him and intimated that his life would be in danger if he did not repay the debt, leaving him with no choice but to escape to Australia to avoid further harm and persecution or, alternatively, if he returned to Taiwan in March 2016 and some gang members went to him to collect the money owing to them, threatened him, beat him up and threatened him that if he did not repay the loan they would hurt his sister and family, as claimed at various times, the Tribunal would expect him to have left Taiwan immediately and returned to Myanmar.

1. During the hearing, the Tribunal asked the applicant why he cannot live in Myanmar. He responded that it is unsafe there and he left Myanmar for Taiwan for humanitarian and religious reasons. After his father passed away, his mother was persecuted and she wanted him to go to Taiwan. When asked about the humanitarian and religious reasons, he responded that he left Myanmar for religious reasons. When asked about the religious reasons, he responded that his mother was a devout Buddhist and they were a Buddhist family. The area they lived in Myanmar was controlled by a Muslim community and they  faced persecution there.

2. The Tribunal asked the applicant about the persecution they faced. He responded that they were harassed and assaulted by the Muslim community. Myanmar had a coup last year and he is less likely to return to Myanmar. The Tribunal pointed out that the majority of the population in Myanmar are Buddhists[1] and questioned why they did not move to a Buddhist area. He responded that they did not have the financial means to relocate. The reason his mother wanted him to go to Taiwan was because his second sister lives there. She thought it would be safer to live there.

   [1] 89.8% of the enumerated population in Myanmar in 2014 were Buddhist . (The 2014 Myanmar Population and Housing Census, The Union Report: Religion, The Republic of the Union of Myanmar)

3. The Tribunal noted that the applicant’s [other siblings] did not seem to have a problem living in Myanmar. They could live in Taiwan if they wanted to. The applicant responded that that is not the case. If they wanted to, they could not as they do not have Taiwan residency. When the Tribunal pointed out that if they are Taiwanese citizens, they can gain residency, he responded that they are not Taiwan citizens. Even though his mother was a citizen of Taiwan, she left for Myanmar a long time ago. He and his sister got residency through their paternal grandfather. He offered no explanation why his other [siblings] in Myanmar could not also get residence in Taiwan through their paternal grandfather.    

4. The Tribunal does not find this evidence to be convincing. Firstly, the Tribunal would expect that if the applicant’s mother was a devout Buddhist as claimed, she would have settled in a predominantly Buddhist area on her return to Myanmar from Taiwan rather than settling in a Muslim area. Secondly, if the applicant’s family was persecuted in Myanmar and his mother sent him to Taiwan as it was safer there as claimed, the Tribunal would expect that she would also have sent her other [children] to Taiwan for their safety. Thirdly, despite his claims of being persecuted in Myanmar, the applicant travelled back to Myanmar several times to visit his mother and [siblings]. The Tribunal does not accept that his family was persecuted in Myanmar and he was sent to Taiwan for his safety. The Tribunal is of the view that he was sent to Taiwan to attend university there.

5. In view of the above, the Tribunal is of the view that the applicant could have returned to Myanmar if it was not safe for him to live in Taiwan as claimed. Instead, he applied for a visa to travel to Australia. This involved him waiting a considerably longer period of time, incurring a significantly higher cost and the uncertainty of whether or not he would be granted a visa. This conduct is not consistent with his claims and raises issues in relation to his credibility and the veracity of his claims.

6. Seventh, the applicant’s conduct in Australia was not consistent with his claims. The records of the Department indicate that he first arrived in Australia [in] August 2012 as the holder of a [temporary Visa Type 1] visa. He claimed that he came to Australia to escape harm and persecution. However, he did not apply for a Protection visa until 14 October 2016. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that his delay in applying for a Protection visa until more than 4 years after he first arrived in Australia was not the conduct of someone escaping persecution. The Tribunal noted that this raised issues in relation to his credibility and the veracity of his claims.

7. The applicant responded that he did not receive any threats between 2012 and 2016. He was threatened in March 2016 while visiting Taiwan. That is why, on his return to Australia, he applied for protection. The other reason is that the point in time coincided with his mother’s death. It was no longer necessary for him to return to Myanmar. His mother was in poor health and he used to return (to Myanmar) to visit his mother. He did not lodge the application immediately because his mother was alive and he wanted to visit her. It was his understanding that when a Protection visa is lodged you cannot leave Australia. After his mother passed away, he did not have a reason to return to Myanmar.

8. The Tribunal pointed out to the applicant that he still had a reason to return to Myanmar as he has [siblings] living there. He agreed and responded that they do not have an income. He needs to stay in Australia and use his income to support them. There is persecution there. The two reasons put together makes him want to stay in Australia.

9. The Tribunal is not persuaded by the applicant’s response. His response that he did not receive any threats between 2012 and 2016 is not consistent with his written claims in his visa application, particularly that gangsters went to his workplace and caused problems resulting in him losing his job (in January 2012). His assumption that he could not leave Australia after lodging an application for a Protection visa is incorrect as he could have applied for a Bridging B visa which would have allowed him to travel overseas. When the Tribunal discussed this with him, he stated that he did not know this based on his online research. He earlier gave evidence that he has never obtained immigration advice from a migration agent in Australia.

10. The Tribunal would expect that if the applicant genuinely feared persecution in Taiwan he would have obtained some immigration advise from a migration agent. He would then have been advised that he could apply for a Bridging B visa to travel to Myanmar to visit his mother. Further, his response that, upon his return to Australia ([in] May 2016), he applied for protection is also incorrect. He applied for a Student visa on 16 June 2016 and this was granted on 27 July 2016 (see paragraphs 51-53 below). He did not apply for a Protection visa until 14 October 2016.  

11. The applicant’s conduct in Australia was not consistent with his claims and raise issues in relation to his credibility and the veracity of his claims.

12. Eighth, the applicant gave evidence to the Tribunal that he decided to come to Australia in 2012 because he heard from a friend that this is a place to make more money, so he and his friend came to Australia. He has been issued with a total of five subclass 417 Working Holiday visas for Australia between 2012 and 2016. He applied for a Student visa on 16 June 2016 and was granted this visa on 27 July 2016. He then applied for a Protection visa on 14 October 2016. He gave evidence that he wanted to earn more money so he changed to a Protection visa because he could only work 20 hours a week on a Student visa.

13. The records of the Department indicate that the applicant first arrived in Australia [in] August 2012 as the holder of a Working Holiday (TZ-417) visa. On 29 March 2013, he applied for an extension of that visa and was granted an extension on 1 May 2013. [In] August 2014, he departed Australia on a flight to [Country 1]. [In] November 2014, he returned to Australia from [Country 1] as the holder of another Working Holiday (TZ-417) visa.

14. On 5 July 2015, the applicant again applied for an extension of that visa and was granted an extension on 13 July 2015. [In] March 2016, he departed Australia on a flight to Taiwan. [In] May 2016, he returned to Australia from Taiwan as the holder of another Working Holiday (TZ-417) visa. On 16 June 2016, he applied for a Student visa which was granted on 27 July 2016. He then applied for a Protection visa on 14 October 2016.

15. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that his immigration history may lead it to the conclusion that he liked living and working in Australia and that he used a series of 417 Working Holiday visas to maintain residence in Australia. When he was no longer able to do that, he applied for a Student visa. When he realised that he could not work full time on a Student visa he then applied for a Protection visa. The Tribunal noted that it may conclude that he applied for a Protection visa to maintain ongoing residence in Australia and not because he is in need of protection.   

16. The applicant responded that it is not true that he is not in need of protection. He applied for a series of Working Holiday visas and a Student visa. He was aware of how much work he could do on a Student visa. The reason why he did not apply for a Protection visa straight away is that he did not feel the threat as intensely in the beginning. With his first Working Holiday visa he wanted to have that experience. He then fell in love with Australia. With the help of a friend he changed his name so that he could re-enter Australia on a second Working Holiday visa. The investment and its failure and all the ensuing problems took place while he was on his second Working Holiday visa. That prompted him to apply for a Protection visa. The issues with the gangs arose after he got his second Working Holiday visa. That is why he applied for protection.

17. The Tribunal is not persuaded by this response in view of the applicant’s earlier inconsistent evidence and the many problems with his evidence. His response exacerbates the Tribunal’s concerns in relation to his motivation for applying for a Protection visa. Having arrived in Australia under one name and successfully obtained an extension of his Working Holiday visa for another year, he left Australia, obtained another Working Holiday visa under a different name, returned to Australia on that visa and then applied for an extension of that Working Holiday visa for another year. He then left Australia and returned for the third time on a fifth Working Holiday visa. The Tribunal is of the view that this is indicative of his strong desire to live and work in Australia so that he could support his family in Myanmar.

18. The applicant’s evidence that he changed from a Student visa to a Protection visa because he wanted to earn more money and could only work 20 hours a week on a Student visa further support this conclusion. The Tribunal raised this as an issue with him and noted that his conduct may lead it to the conclusion that he only applied for a Protection visa because he wanted to stay in Australia as he could earn more money here than in Taiwan or Myanmar to support his family in Myanmar.  

19. The applicant agreed and stated that is right. The reason for his application for a Protection visa is so that he could save enough money to pay off the debt. If that did not happen, he would not have had to apply for protection. Once a person applies for a Protection visa, they cannot leave the country. No one wants to be isolated in a foreign country. He applied for protection to earn money to pay off the gang. If he did not face those threats and could live a normal life he would not have applied for protection. The application means that he is far away from family and friends in Taiwan and living on his own all these years. If he does not pay off the debts the threats will continue. Given his age, he would not have applied for a Protection visa and live on his own. For the many reasons given above, the Tribunal does not accept this explanation.  

    Other considerations

20. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Findings

21. Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he has fabricated his material claims for the purpose of obtaining a Protection visa.

22. The Tribunal accepts that the applicant’s father was Taiwanese and his mother was Burmese. The Tribunal accepts that he was born on [date] in Myanmar. The Tribunal accepts that he completed High School in Myanmar and then went to Taiwan to attend university. The Tribunal does not accept that he went to Taiwan because he or his family were persecuted in Myanmar. The Tribunal accepts that his father passed away many years ago. The Tribunal accepts that he has a sister who lives in Taiwan and [other siblings] who live in Myanmar. The Tribunal accepts that his mother lived in Myanmar until she became ill and passed away in 2016. 

23. The Tribunal accepts that the applicant worked as a kitchen hand in Taiwan. The Tribunal accepts that he supports his family in Myanmar. The Tribunal accepts that he and a friend came to Australia on Working Holiday visas in 2012 because they wanted to earn more money. The Tribunal accepts that he was able to obtain five Working Holiday visas by leaving Australia and returning using different names. The Tribunal accepts that he travelled to Myanmar several times to visit his mother and siblings until his mother’s death in 2016.  

24. The Tribunal does not accept that, after his graduation in 2007 and gaining some work experience, a friend of the applicant suggested they open a restaurant together, they organised to borrow money from other friends but after the funds were available his friend and business partner suddenly disappeared with the money. The Tribunal does not accept that the creditors or gangsters sought repayment of the loan from him, went to his home, stalked him, threatened to beat him, intimated that his life would be in danger if he did not repay the loan, caused trouble at his workplace resulting in him losing his job (in January 2012) and forcing him to escape to Australia (in 2012) to avoid further harm and persecution. It follows that the Tribunal does not accept any of his claims that flow from that.

25. Alternatively, the Tribunal does not accept that in 2014 (whilst the applicant was working in Australia) he and a friend started making plans to open a restaurant in 2014, his friend asked for his personal documents, obtained them from his sister in Taiwan and used them to obtain a loan from a money lender or, alternatively, an illegal money lender with him as a guarantor on the loan, or, alternatively, with him as the borrower. The Tribunal does not accept that he invested 10 million Taiwan new dollars (which is the equivalent of AUD$500,000.00) in the restaurant by transferring money from Australia to Taiwan between 2014 and 2015 when he stopped transferring because he realised that his friend had returned to Myanmar and disappeared with the money. It follows that the Tribunal does not accept any of his claims that flow from that.

26. The Tribunal does not accept that the applicant was or is of adverse interest to money lenders, illegal money lenders, gangsters or criminals involved in organised crime.  

27. The Tribunal accepts that the applicant wants to live in Australia as he is able to make more money here than in either Taiwan or Myanmar and needs sufficient income to support his siblings in Myanmar who have no income.

28. In view of the above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to Taiwan now or in the reasonably foreseeable future. 

    Does Australia have protection obligations to the applicant under the refugee criterion?

29. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for reason of his membership of a particular social group or any other reason set out in s.5J(1)(a) of the Act if he returns to Taiwan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary protection criterion?

30. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

31. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Taiwan now or in the reasonably foreseeable future. 

32. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

33. For the reasons given above, 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) of the Act.

34. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criterion in s.36(2) of the Act.

    DECISION

35. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
         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.

…