1715542 (Refugee)

1715542 (Refugee) [2022] AATA 648 (17 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1715542
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Anne Grant
DATE:17 January 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 January 2022 at 3:18pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – debt owed to an illegal money lender – usury – complementary protection – serious physical harassment and threats – effective state protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 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 13 February 2017. The delegate refused to grant the visa on the basis that the applicant did not fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion as required by subsection 5J(1)(a). Further, the delegate found that the applicant could obtain protection from the harm he fears such that there would not be a real risk that they will suffer significant harm. The delegate did not interview the applicant.
The applicant appeared before the Tribunal on 11 January 2021 to give evidence and present arguments. The hearing was scheduled to be conducted by video conference using the Microsoft Teams Application. On the day of the hearing, the applicant was unable to connect using his computer and camera and so, after multiple attempts, it was agreed that he would participate by phone instead, using the MS Teams application. The connection was clear. 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 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, 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
The issue in this case is whether the applicant is a refugee and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Taiwan, there is a real risk that the applicant will suffer significant harm.
The applicant’s claims, as stated in his written application for protection were as follows:
·He left Taiwan to avoid being harmed and persecuted. If he returns and fails to repay money to loan sharks, they will come after him relentlessly. They will use every possible means to force him to pay the money back. His life will be in danger.
·He was a salesman in Taiwan. One of his clients offered to open a company with him. Since he had graduated from university he had wanted to be his own boss. The company was set up and business was good. However ‘one day’ strangers came demanding money. He couldn’t reach his business partner. Later, he realised that his partner had used the company to borrow money from loan sharks and hadn’t paid it back. As a partner of the company, they came after him when they couldn’t find his partner. The interest was high and grew rapidly. Company’s income was below what was needed to repay the debts. The debt collectors constantly came to harass him, damaged his company and demanded money. He asked for help from police but they couldn’t always protect him. Loan sharks kept threatening his life would be in danger if he didn’t pay the money back. He had no choice but to flee to Australia for his own safety.
·Loan sharks are everywhere in Taiwan and he would be soon found by them no matter where he ran. They followed him no matter where he ran.
At hearing, the applicant gave evidence as follows: (in summary)
·When asked if he recalled his written claims, the applicant said his general story was that he owed money and couldn’t repay the debt, which led to threats to him and his family and him being in fear. This was in around 2013 though the applicant was not sure of the year. This led to him escaping to Australia. When he was asked if it was himself who borrowed and who from, the applicant confirmed that he borrowed money from the friend of a friend, to start an online business with another friend. The applicant was vague about how much he borrowed, and said it was somewhere in the vicinity of 7 million Taiwanese dollars (around AUD$250,000). The business was going to sell a wide range of consumer goods, and it didn’t have a physical location. However, the business never really started as it was a fraud and the ‘business partner’ friend took the money the applicant had borrowed and disappeared. Later in the hearing the applicant claimed that he reported the man and the theft to the police but he had never heard from them because shortly afterwards he went to Australia to work. He claimed he left Taiwan because he could not earn enough in his job to repay even the interest.
·The applicant said that the interest was 5% per week, and he was working for a [Industry 1] company. His income would not cover the interest, let alone the principal. The lender started to harass him to repay the debt.   They came to his home, and took him in a truck to the mountains where they threatened him and demanded he repay the money.   He was very afraid. They had bats and sticks and were hitting him. He told them he intended to and would repay it and tried to negotiate with them to reduce the interest rate, explaining that he had no chance of repaying the debt unless the interest was more reasonable.
·The applicant stated that his family has no money so they couldn’t help him.
·After this, he heard that one of his friends was on a working holiday in Australia and so he came to Australia in 2014 to earn money. He claimed to have repaid a large part of the debt and said that there is about 1.5million Taiwanese dollars (AUD$75,000 approximately) left. He wants to stay in Australia where he is working hard to earn enough money to finally pay off the debt. He said he thinks he needs about one more year, because there is a lot of work available due to the pandemic. He claimed he intends to return home when the debt is repaid and was surprised to hear that a protection visa is a permanent visa.
·The lender has agreed to reduce the interest rate because the applicant has been repaying the debt. However, the applicant claims that if he returns without paying it in full, the interest will increase again and all his hard work will have been for nothing. He claims he will then be at risk again of being harassed by the lender.
·The applicant returned to Taiwan in May 2016 after his working holiday visa expired. He claimed that prior to returning to Taiwan he had stated his intention to return on [social media].   Consequently, when he returned, the lender came and demanded he repay the debt again, threatening him if he didn’t. He then returned to Australia in November 2016.
·The applicant was asked if he reported the threats and demands to police. He said he dared not to as they were threatening to do something much more severe if he did. However when it was noted that in his written claims he had stated that he did go to police, and they were unable to help him, the applicant said that he did go to the police in 2016 when they resumed their threats.   He thought it was around September or October 2016, and he never heard anything from the police after that. They told him that loan sharking is illegal and they would act according to the law. He returned to Australia [in] November 2016. He said he did not tell the police how to contact him in Australia. The applicant confirmed that he was only in Taiwan for 6 months before returning to Australia on a tourist visa. He said that once the demands resumed, he needed to keep working in Australia so he could keep paying off the debt – that was why he returned and applied for the protection visa – so he could get work rights.
·The applicant’s parents and one sister still live in the same home as he did before coming to Australia. It was that home that he returned to (and was found by the moneylender) in May 2016. The applicant said that the moneylenders did try to harass his family when he first left in 2014 but once he started repaying them they have left the family alone. This whole situation has damaged his relationship with his family.
·The applicant said he had thought about returning to Taiwan and not publicising his return (like he did in 2016 on [social media]) and relocating and finding work. He claims that he could not earn the income he earns in Australia and still wouldn’t be able to repay the debt, which would make the lenders start looking for him again and ‘he doesn’t know what they will do then’. He said that the ‘safest’ thing is for him to stay in Australia until the debt is repaid.
·The Tribunal noted that his payment history would be in his favour and suggests that the money lender would be unlikely to harm him – because after all he couldn’t repay the debt at all if they did. The applicant responded that he agreed he has proven his intention to repay the debt and been a good payer but he was very afraid when they abducted him in the past, and he doesn’t want to face that again.
·The applicant was asked if he had reported the thief who stole his money. He said that he did report him back in 2013 and it is possible that he was prosecuted. However, the money was not recovered and this has not helped him with the moneylender.
The Tribunal noted that it had some concerns with the applicant’s claims. Firstly, like the delegate, there are concerns that the reason for the harm he fears is not one or more of the reasons in s.5J(1)(a). In addition, the Tribunal has concerns that there was a real chance of harm from the moneylenders, given the passage of time, the fact that he has repaid the larger amount of the debt and his intention to continue to repay the debt. Also, bearing in mind the country information which reflects that Taiwan has a low violent crime rate, an active and effective police force and that the alleged behaviours of the moneylender are criminal and are regularly prosecuted, it appears that the applicant could obtain effective protection from the harm he fears if he encountered a resumption of threats on his return, leading to the prosecution and imprisonment of those who threaten or harass him.
In response, the applicant disagreed that there is not a real chance of harm from the moneylender if he returns. He still owes money and would not be able to continue repaying it from Taiwan. Because of what he has gone through in the past he would prefer to avoid any chance of coming to the attention of the moneylenders again by repaying the debt first before returning to Taiwan. In relation to the capacity for the police to protect him, he agreed that the country information discussed was reasonable; that the Taiwan police are effective and that Taiwan has a low violent crime rate and that gangsters are arrested and prosecuted, including for usury. However, he stated that this does not mean that violent crime does not happen or that it would not happen to him if the debt is not repaid.
Findings of Fact
The Tribunal found the applicant to be surprisingly vague about dates, the timeline of events, the amounts and details of his debt, and even whether he reported crimes such as the theft of money or the threats and harassment to police. He was also extremely unsure about the nature of the business he claimed to have been involved in (or intended to be involved in). In addition, as may be noted from the summary of his claims and evidence above, the nature of his written claims (and the nature of how his debt arose) differ in quite significant terms from his oral evidence. The applicant confirmed that he completed the written claims himself.
These matters cause the Tribunal real concern, particularly given that several times during the hearing where a discrepancy or inconsistency between his written and oral evidence was raised with him, the applicant became defensive, as if it was the Tribunal putting ‘an alternative’ story to him rather than simply restating his own claims and evidence and asking for clarification about why they were so different.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
Whilst the Tribunal accepts that the applicant came to Australia because he had debts in Taiwan and he wanted to earn money to repay them, having weighed the applicant’s evidence overall and his written claims, the Tribunal it is not satisfied that the applicant’s evidence about the size and his history of repayment of the loan is reliable.
In reaching this conclusion, the Tribunal has taken into consideration that the applicant claimed he had negotiated a lower interest rate but gave no evidence about what that (reduced) interest rate was, despite being asked. Accepting, for the purposes of this discussion, that he did negotiate a lower interest rate than 20% per month at some point after he arrived in Australia, the applicant’s claims about the size, interest and repayment of the debt are still not credible. For him to now owe only 1.5million NTD now (as he claims) even at a simple interest rate of say 10% per annum, since he arrived in Australia he would have to have paid the equivalent of $276,143 in principal over 7 years (taking into account the 6 months he was back in Taiwan in 2016). This would be a quite extraordinary repayment rate of around $40,000 per annum PLUS interest of around $35,000 per year, without even taking into account the exorbitant interest he would have accrued in the first year before he came to Australia and before he negotiated a reduced rate.
The applicant claimed he wants to stay in Australia for about one more year to repay the debt before he returns to Taiwan. He claims he still owes around the equivalent of $75,000 AUD. The Tribunal does not accept the applicant’s claim that he owed a debt of 7 million Taiwanese dollars (roughly AUD$350,000), or that the interest rate was 5% per week or 20% per month as he claimed. After considering his evidence, the Tribunal finds that the applicant has greatly exaggerated the amount of any debt at the time he came to Australia and also the size of any debt still outstanding.
The applicant gave evidence that he works full time in Australia, and he has a good relationship with his employer. He works as much overtime as he can get. He works in [Industry 2] as a [Occupation 1]. Whilst the Tribunal accepts that the applicant works hard, it is unable to accept his evidence about the income he earns being sufficient to repay a debt of the size he claims.
According to the [Industry 2] award[1] the highest hourly rate is $32.76 and at 40 hours a week, the annual gross salary would be $68,140. Even including significant additional overtime would not yield the applicant a salary which could repay a debt in the amounts that he claims to have paid, particularly when day to day living costs, tax and accommodation are taken into account.
[1] [Source deleted]
After carefully considering his evidence and claims (and taking into account the inconsistencies and vagueness of detail where they arise) the Tribunal makes the following findings:
·     It is accepted that the applicant personally borrowed money in Taiwan to start a business, and that the proceeds of borrowings were lost either to a fraudulent business partner or in the failed business itself. The Tribunal does not accept the applicant’s evidence about the size and terms of the debt. It is not accepted that a business partner borrowed this money unbeknownst to him (as stated in his written claims) or that the business partner defaulted on the loans, leading to the moneylenders making demands of the applicant.
·     The Tribunal finds that, contrary to the written claims, the business never traded successfully or that the company had a physical location (where the moneylenders came to threaten him) at all.
·     The Tribunal finds that the debt collectors did not ‘constantly come to’ the applicant’s company to harass him or ‘damage his company’. For the purposes of considering this review, the Tribunal accepts that the person he owed money to and people associated with him did come to his home on a number of occasions and make demands of him to repay the debt.
·     It is accepted that on one occasion, he was taken to a remote location where he was physically assaulted and threatened, in order to induce him to make repayments. The applicant was able to convince the perpetrators that he had every intention of repaying the debt, so was later released.
·     Whilst the exact interest rate payable currently was not disclosed, it is accepted that the rate of interest was extortionately (and illegally) high until the applicant later negotiated a lower rate by demonstrating his good faith in repaying a proportion of the debt.
·     The Tribunal accepts that the applicant still has a debt owing and that he would therefore be of interest to the money lender if he failed to continue to repay the debt on his return.
·     The Tribunal does not accept the applicant’s evidence that he reported the theft of money by his business partner or the threats made to him by the moneylender to police at any time. On balance, the applicant has not established to any level of satisfaction that he ever reported the loan sharking behaviour, the harassment, demands and assault he claims to have experienced at the hands of the money lender (or people associated with the moneylender) to police, at any time.

The applicant fears that he will be harassed and physically assaulted by the money lender or people associated with him if he returns to Taiwan. The reason for the harm he fears is not because of his race, religion, nationality, membership of a particular social group or political opinion. When the Tribunal noted that it appeared that the reason for the harm he feared is not one of the reasons as required by the refugee definition (as found by the delegate) but is due to a personal debt dispute, the applicant said he had nothing to say about that particular concern.
The applicant fears that he will be harassed and assaulted due to a debt that he owes to a money lender. The essential and significant reason for the harm he fears is the breakdown in a contractual relationship - a personal dispute which has arisen from a failed financial transaction. The applicant does not fear being persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion. The Tribunal concludes that the applicant does not satisfy s.5J(1)(a) and does not have a well-founded fear of persecution. He is not a refugee.
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).
Complementary Protection
The Tribunal has found that the applicant has a debt owed to an illegal money lender in Taiwan and that he has in the past been threatened and assaulted by the lender (or people associated with him) to procure repayment of the debt. Even without accepting that the applicant has established that he borrowed 7 million Taiwanese dollars or still owes 1.5 million to the lender, the Tribunal considers it plausible that the applicant would continue to be of interest to the moneylender and vulnerable to facing renewed demands to repay the debt if he returns to Taiwan for as long as there is an outstanding balance. Even though, as he conceded, the applicant could reasonably relocate away from his family home, find work and potentially at first avoid the creditor, the existence of an outstanding debt does suggest that the moneylender would be motivated to find him and make continued demands and possibly threats to recover the balance. The Tribunal is satisfied that there is a real risk that, as a consequence of him being returned to Taiwan and being unable to continue repaying the debt, the lender or their associates will locate him and if they do so, that the applicant will face ongoing physical harassment and threats until the debt is repaid in full.
For the purposes of this discussion, it is accepted that the harm feared by the applicant, namely serious physical harassment and threats, would reasonably be considered to involve him being subjected to cruel and inhuman treatment or punishment at the hands of the loan shark/moneylender or people associated with him.
However, as discussed with the applicant at hearing, the country information reflects that the Taiwanese authorities are motivated to and capable of responding to criminal conduct of this nature. The country information reflects that the Taiwan police regularly take action to arrest, prosecute and jailing of violent organised crime figures, loan sharks and their associates. The Tribunal discussed the country information which follows generally with the applicant at hearing.
Violent crime rates in Taiwan are among the lowest in the world and crime is generally low.[2] Excessive use of force by police is rare, and lawyers are allowed to monitor interrogations to prevent torture.[3] In 2016, an independent survey showed rising levels of confidence in citizen satisfaction with the police, reaching over 73 percent in that year.[4] The Constitution prohibits arbitrary arrest and detention and the US Department of State assesses this principle is generally observed by authorities.[5]
[2] ‘Taiwan 2020 Crime & Safety Report’, Overseas Security Advisory Council (OSAC), US Department of State
[3] ’Freedom in the World 2021 Taiwan', Freedom House, 4 March 2021, F3, 20210329082238
[4] ‘Statistics shows satisfaction with police reached all-time high 73.3%’, National Police Agency, Ministry of Interior, 23 September 2016, CIS38A80123706
[5] ‘2020 Country Reports on Human Rights Practices: Taiwan', US Department of State, 30 March 2021, p.2, 20210331113530; ‘Freedom in the World 2021 Taiwan', Freedom House, 4 March 2021, F2, 20210329082238
By May 2021 police had arrested 161 suspected gang members this year, and similarly 259 including 25 major criminal figures were arrested in 2020.[6] Three hundred and fifty people were detained in a nationwide crackdown on organised criminals and loan sharks in May 2019.[7] More than 300 people were arrested in a similar 2018 crackdown.[8] In 2021, Taipei’s police commissioner acknowledged an increase in negative public perceptions in the ability of law enforcement authorities to contain organised crime and vowed to intensify police efforts by conducting more frequent operations.[9] The overall effectiveness of these measures is difficult to measure, however some sources from 2016 claim that at that point in time, over decades, the reach, discipline and effectiveness of organised crime has decreased and that these organisations are now generally unsophisticated.[10]
[6] ‘Law and Order: Taipei police commissioner reassures public on safety’, Taipei Times, 7 May 2021. 20210519090638
[7] 'Police detain 350 in crackdown on organized crime', Taipei Times, 4 May 2019, 20200610130957
[8] ‘Raids and 310 arrests as Taiwan cracks down on criminal gangs ahead of elections’, Hong Kong Free Press, 4 May 2018, CXBB8A1DA30616
[9] ‘Law and Order: Taipei police commissioner reassures public on safety’, Taipei Times, 7 May 2021. 20210519090638
[10] ‘Is Taiwan’s Organized Crime Receding or Going Deeper Underground?’, Tim Ferry, American Chamber of Commerce in Taipei, 24 May 2016, CIS38A80122174
Usury is a commonly reported crime. Some usury activities are linked to organised crime. Some people borrow money to support business interests, including for ventures involving mainland China.[11] In March 2021 police arrested eight suspected gang members accused of using violence and intimidation to collect money on behalf of creditors.[12] Usury is a hidden crime and little information is available about it.[13]
[11] See e.g. 'Banqiao bank robber caught by New Taipei Police', Taiwan News, 5 March 2019, 20200610144931; ‘Widespread Chinese antipathy 'real danger' to Taiwan: official’, Taiwan News, 4 September 2019, 20200610145259
[12] ‘8 gang members arrested for illegal collection of debts in Taipei’, Focus Taiwan, 14 March 2021, 20210519081339;
[13] COISS conducted targeted web searches, checked international and Taiwanese news sources and checked COI databases.
Police actively target loan sharks. Usury is a crime that can attract a penalty of up to five years in prison.[14] The law proscribes lending money at an ‘obviously’ inappropriate interest rate based on the ‘urgent need, carelessness, inexperience or lack of other resort’ of the borrower.[15] Monitoring, intrusion upon, threats, intimidation and actual harm in an effort to instil fear are all criminalised.[16] Loan sharks have been targeted in broad crackdowns against criminals.[17] Police operations against loan sharks are reported in the Taiwanese media and hundreds of loan sharks have been arrested in recent years.[18]
[14] 'Criminal Code of the Republic of China', Government of Taiwan, as amended to 15 January 2020, arts 344 and 344-1, 20200610144237
[15] 'Criminal Code of the Republic of China', Government of Taiwan, as amended to 15 January 2020, art. 344, 20200610144237
[16] 'Criminal Code of the Republic of China', Government of Taiwan, as amended to 15 January 2020, art. 344-1, 20200610144237
[17] 'Police detain 350 in crackdown on organized crime', Taipei Times, 4 May 2019, 20200610130957
[18] ‘8 gang members arrested for illegal collection of debts in Taipei’, Focus Taiwan, 14 March 2021, 20210519081339; 'Police detain 350 in crackdown on organized crime', Taipei Times, 4 May 2019, 20200610130957; 'Police tout results of raids on gun, loan operations', Taipei Times, The, 24 June 2019, 20200501124846;
The applicant conceded that the Taiwanese police are capable and effective and would uphold the law if he sought their assistance. He claimed that even if they did assist him and arrest the people who assault or threaten him, he might still be subjected to significant harm. His claim is that ‘other people’ associated with the lender might potentially then pursue him if the lender and others are arrested.
The Tribunal is not persuaded by the applicant’s submissions on the existence of a ‘residual’ real risk of significant harm after he seeks and obtains the protection of the Taiwanese police. The Tribunal has found that the applicant has not taken any steps to seek state protection in the past, despite acknowledging the effectiveness of the Taiwanese police, the illegality of the loan and terms and the physical assault to which he was subjected. On his own evidence, the debt he owes now is greatly reduced from that he owed in 2014, and he has proven himself capable of negotiating with the lender in the past. The Tribunal is satisfied, as put to him at hearing, that there must be a corresponding reduction in the lender’s motivation to harm him, commensurate with the reduction in size of debt, particularly given his proven good record of repaying. The Tribunal is satisfied that state protection is available to the applicant from the harm the applicant fears and notes that the applicant’s history suggests that in addition to that protection, he could potentially also use that report (or even the potential for that report to police) to negotiate a reasonable and safe repayment plan without facing an ongoing real risk of significant harm from the moneylender or people associated with him.
The country information, as noted above, (and which was accepted by the applicant) describes an effective and capable police force who have demonstrated the capacity to investigate and prosecute violent gangs and loan sharks in Taiwan, including those who threaten harm in furtherance of illegal debts. The Tribunal considers that in the event that the applicant faces renewed threats of harm in Taiwan on his return, he could obtain, from an authority of Taiwan, protection such that there would not be a real risk that he would suffer significant harm. Applying s.36(2B)(b) there is therefore taken not to be a real risk that the applicant will suffer significant harm in Taiwan due to the outstanding balance of any debt.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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.
Anne Grant
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

p. 1, 17 March 2020, 20200605123324

[2022] AATA 648

17 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice