1715524 (Refugee) - [2023] AATA 4489

1715524 (Refugee) [2023] AATA 4489 (16 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1715524
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Dominic Triaca
DATE:16 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 October 2023 at 12:49pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – small shop owner attacked by business competitors and threatened by loan sharks – some repayments made while shop operating but none and no contact since – no knowledge of amount currently owed – applied after holding working holiday and student visas – country information – reasonably effective police targeting criminal gangs – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
BEH15 v MIBP [2019] FCAFC 184
DAJ v Minister for Immigration [2020] FCCA 2142
DAO v MIBP [2018] FCFCA 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 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 4 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Taiwan applied for the visa on 31 August 2016. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 9 October 2023 to give evidence and present arguments. The Tribunal 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 (Cth) (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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 4489
Decision Date: 16 October 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a citizen of Taiwan. The applicant claimed he was forced to flee Taiwan due to threats from business competitors and loan sharks, stemming from an unsuccessful business venture and significant unpaid debts. The applicant had arrived in Australia in 2013 and subsequently held working holiday and student visas before applying for a protection visa in 2016. The Administrative Appeals Tribunal was tasked with reviewing the delegate's decision to refuse the visa.

The primary legal issues before the Tribunal were whether the applicant met the definition of a refugee under section 5H of the Migration Act 1958 (Cth) and whether Australia had protection obligations towards him under section 36(2)(aa) of the Act. This required the Tribunal to assess if there was a real chance that the applicant would suffer persecution for a Convention reason or significant harm as a necessary and foreseeable consequence of returning to Taiwan. The Tribunal was also required to consider relevant country information and the applicant's credibility in making its findings of fact.

The Tribunal considered the applicant's claims regarding threats from business competitors and loan sharks, and his inability to repay a substantial debt. It also had regard to country information concerning the effectiveness of police targeting criminal gangs in Taiwan. After reviewing the evidence and submissions, the Tribunal affirmed the delegate's decision. The Tribunal was not satisfied that there were substantial grounds to believe that the applicant would face a real risk of persecution or significant harm upon return to Taiwan, and therefore found that the criteria for a protection visa were not met.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal finds the applicant is a citizen the People’s Republic of China (Taiwan), which is also the receiving country for the purposes of the refugee and complementary protection assessments. Background The Applicant is [Age] years old. He first arrived in Australia in December 2013 on a working holiday visa. He applied to extend his working holiday visa in 2014 and was granted a further 12-month extension until December 2014. He applied for a student visa in December 2015 which was granted in January 2016. He applied for a protection visa, the subject of this application in August 2016. The Applicant made protection claims which are summarised as follows:(a)The applicant opened a [shop] in Taiwan. In order to set up the business, he used all of his savings as well as borrowing money from loan sharks.(b)As his business grew, his competitors blamed him for affecting their business and started to make trouble in his shop.(c)The applicant argued with these people and engaged in physical conflict.(d)A competitor was injured due to these physical conflicts and demanded that the applicant pay an unreasonably high amount of compensation or they would not stop making trouble for him.(e)The success of the applicant’s business began to decline, and his income wasn’t sufficient enough to cover his daily expenses and debt.(f)Loan sharks began to come to the applicant’s shop and threatened to hurt him if he did not repay on time.(g)The applicant was facing danger to his life every day in Taiwan, so he closed his shop and fled to Australia.(h)The applicant could easily be tracked down by loan sharks no matter where be moves.(i)The applicant fears his life will be in danger if he can’t repay his debt.(j)He says that although authorities may provide him protection for him once, they can’t always be there to support and help him.(k)He says that loan sharks are widely connected in Taiwan, and he could easily be found by them. The Applicant gave evidence to the Tribunal in relation to his background, confirming his employment and travel history. He says that he confirmed that he was involved in a [shop] business which was ultimately unsuccessful and that he borrowed money from loan sharks to begin and facilitate the business. He confirmed that the basis of his application was a fear of reprisals from loan sharks in circumstances in which he had not and was unable to pay the loan sharks approximately 5 million Taiwan Dollars that he had borrowed. The Applicant’s parents and brother remain in Taiwan in New Tai Pei. He lived in that village his whole life before travelling to Australia. He speaks to his family occasionally. He says that prior to working in the [shop], he had previous experience in [a] market and a supermarket. He did not complete school. In Australia he studied [Subject] for a time but did not complete a certificate. In Australia he has worked in [a workplace]. He says that he has lived in Adelaide, Sydney and Melbourne. He now works in [an] industry in [work task] on a casual basis.

Evidence

Evidence Before The Court

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 EVIDENCEProtection Claims and Delegate’s Decision The delegate refused the visa application on the grounds set out in the claim. The delegate was not satisfied that there is a real chance that, if the applicant was returned to Taiwan, he will be persecuted for one or more of the reasons mentioned in s.5J(1)(a). Therefore, the applicant is not a refugee as defined in s.5H and the criterion in s.36(2)(a) of the Act is not satisfied. The delegate found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Taiwan, there is a real risk he will suffer significant harm. Accordingly, the applicant was not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(aa) (delegate’s decision). The Tribunal has read and had regard to the documents provided by the Applicant to the Department and the Tribunal, residential documents, relationship evidence, written application, applicant’s statement, and photographs, and the delegate’s decision. The Tribunal has also had regard to the relevant country information.Applicant Identity and country of reference. The applicant claims to be a citizen of the Republic of China (Taiwan). He provided a copy of his passport to the Department. The delegate accepted the applicant’s identity. There is no evidence before the Tribunal to suggest the applicant Is not the person identified in the relevant application. The Tribunal finds the applicant is a citizen the People’s Republic of China (Taiwan), which is also the receiving country for the purposes of the refugee and complementary protection assessments. Background The Applicant is [Age] years old. He first arrived in Australia in December 2013 on a working holiday visa. He applied to extend his working holiday visa in 2014 and was granted a further 12-month extension until December 2014. He applied for a student visa in December 2015 which was granted in January 2016. He applied for a protection visa, the subject of this application in August 2016. The Applicant made protection claims which are summarised as follows:(a)The applicant opened a [shop] in Taiwan. In order to set up the business, he used all of his savings as well as borrowing money from loan sharks.(b)As his business grew, his competitors blamed him for affecting their business and started to make trouble in his shop.(c)The applicant argued with these people and engaged in physical conflict.(d)A competitor was injured due to these physical conflicts and demanded that the applicant pay an unreasonably high amount of compensation or they would not stop making trouble for him.(e)The success of the applicant’s business began to decline, and his income wasn’t sufficient enough to cover his daily expenses and debt.(f)Loan sharks began to come to the applicant’s shop and threatened to hurt him if he did not repay on time.(g)The applicant was facing danger to his life every day in Taiwan, so he closed his shop and fled to Australia.(h)The applicant could easily be tracked down by loan sharks no matter where be moves.(i)The applicant fears his life will be in danger if he can’t repay his debt.(j)He says that although authorities may provide him protection for him once, they can’t always be there to support and help him.(k)He says that loan sharks are widely connected in Taiwan, and he could easily be found by them.

Decision

Reasons for decision

The delegate found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Taiwan, there is a real risk he will suffer significant harm. Accordingly, the applicant was not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(aa) (delegate’s decision). The Tribunal has read and had regard to the documents provided by the Applicant to the Department and the Tribunal, residential documents, relationship evidence, written application, applicant’s statement, and photographs, and the delegate’s decision. The Tribunal has also had regard to the relevant country information.Applicant Identity and country of reference. The applicant claims to be a citizen of the Republic of China (Taiwan). He provided a copy of his passport to the Department. The delegate accepted the applicant’s identity. There is no evidence before the Tribunal to suggest the applicant Is not the person identified in the relevant application. The Tribunal finds the applicant is a citizen the People’s Republic of China (Taiwan), which is also the receiving country for the purposes of the refugee and complementary protection assessments. Background The Applicant is [Age] years old. He first arrived in Australia in December 2013 on a working holiday visa. He applied to extend his working holiday visa in 2014 and was granted a further 12-month extension until December 2014. He applied for a student visa in December 2015 which was granted in January 2016. He applied for a protection visa, the subject of this application in August 2016. The Applicant made protection claims which are summarised as follows:(a)The applicant opened a [shop] in Taiwan. In order to set up the business, he used all of his savings as well as borrowing money from loan sharks.(b)As his business grew, his competitors blamed him for affecting their business and started to make trouble in his shop.(c)The applicant argued with these people and engaged in physical conflict.(d)A competitor was injured due to these physical conflicts and demanded that the applicant pay an unreasonably high amount of compensation or they would not stop making trouble for him.(e)The success of the applicant’s business began to decline, and his income wasn’t sufficient enough to cover his daily expenses and debt.(f)Loan sharks began to come to the applicant’s shop and threatened to hurt him if he did not repay on time.(g)The applicant was facing danger to his life every day in Taiwan, so he closed his shop and fled to Australia.(h)The applicant could easily be tracked down by loan sharks no matter where be moves.(i)The applicant fears his life will be in danger if he can’t repay his debt.(j)He says that although authorities may provide him protection for him once, they can’t always be there to support and help him.(k)He says that loan sharks are widely connected in Taiwan, and he could easily be found by them. The Applicant gave evidence to the Tribunal in relation to his background, confirming his employment and travel history. He says that he confirmed that he was involved in a [shop] business which was ultimately unsuccessful and that he borrowed money from loan sharks to begin and facilitate the business. He confirmed that the basis of his application was a fear of reprisals from loan sharks in circumstances in which he had not and was unable to pay the loan sharks approximately 5 million Taiwan Dollars that he had borrowed.

Ratio Decidendi

Legal Principle Established

In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The Tribunal’s task of fact finding may involve an assessment of the applicant’s credibility. In this context the Tribunal is guided by the observations and comments of the Courts.[i] The Tribunal is to have regard to the difficulties facing asylum seekers and adopt a reasonable approach to matters of credit. Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEProtection Claims and Delegate’s Decision The delegate refused the visa application on the grounds set out in the claim. The delegate was not satisfied that there is a real chance that, if the applicant was returned to Taiwan, he will be persecuted for one or more of the reasons mentioned in s.5J(1)(a). Therefore, the applicant is not a refugee as defined in s.5H and the criterion in s.36(2)(a) of the Act is not satisfied. The delegate found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Taiwan, there is a real risk he will suffer significant harm. Accordingly, the applicant was not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(aa) (delegate’s decision). The Tribunal has read and had regard to the documents provided by the Applicant to the Department and the Tribunal, residential documents, relationship evidence, written application, applicant’s statement, and photographs, and the delegate’s decision. The Tribunal has also had regard to the relevant country information.Applicant Identity and country of reference. The applicant claims to be a citizen of the Republic of China (Taiwan). He provided a copy of his passport to the Department. The delegate accepted the applicant’s identity. There is no evidence before the Tribunal to suggest the applicant Is not the person identified in the relevant application. The Tribunal finds the applicant is a citizen the People’s Republic of China (Taiwan), which is also the receiving country for the purposes of the refugee and complementary protection assessments. Background The Applicant is [Age] years old. He first arrived in Australia in December 2013 on a working holiday visa. He applied to extend his working holiday visa in 2014 and was granted a further 12-month extension until December 2014. He applied for a student visa in December 2015 which was granted in January 2016. He applied for a protection visa, the subject of this application in August 2016.