1715544 (Refugee)

[2017] AATA 2969

1715544 (Refugee) [2017] AATA 2969 (28 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1715544

COUNTRY OF REFERENCE:                  Taiwan

MEMBER:Christopher Smolicz

DATE:28 November 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 28 November 2017 at 8:37am

CATCHWORDS
Refugee – Protection visa – Taiwan – Failed investments – Debt – Private matter  – Loan sharks – Threatened harm – Valuables stolen – Credibility issues – Manufactured claims – Delay in applying for a protection visa – No real chance of serious harm

LEGISLATION
Migration Act 1958 ss 5H(1)(a)-(b), 5J(1), 5J(1)(a), 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A), 36(2B), 65, 499
Migration Regulations 1994 Schedule 2 cl 417.222(b)

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 [in] July 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Taiwan, applied for the visa [in] April 2017.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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 themself 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).

6. 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.

7. 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

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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

9. The issue in this case is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because she fears harm from loan sharks (money lenders) in Taiwan. 

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11. The applicant is [age]. She declared that she was a Taiwanese citizen. She travelled to Australia on a passport issued by the Republic of China (Taiwan).

12. The Tribunal has assessed the applicant’s claims against Taiwan as the receiving country.

13. The applicant first arrived in Australia [in] June 2015 as the holder of a [temporary] visa. The visa was valid until [date] June 2016. On [date] June 2015 the applicant departed Australia and subsequently returned on [date] June 2015. She applied for the protection visa [in] March 2017.

    Summary of substantive claims     

14. The applicant provided the following evidence is support of her claim for protection.

15. The applicant claims that when she was living in Taiwan she commenced to work and save money after her graduation. She travelled to [another country] for study. When she returned her friend convinced her to make an investment and promised high returns. She invested all her savings and even borrowed some money. The investment project failed and her friend disappeared. She lost all her investment money. The debtors came for their money. She did not have a job and could not pay the money. The interest grew and the debts were beyond her capacity to repay. She was tracked by the debtors. They came to her home and took her valuables. They threatened her that if she didn’t clear her debts her life would be in danger.

16. The applicant claimed that she left Taiwan to avoid being hurt and persecuted by debt collectors. She fears that if she returns to Taiwan and fails to repay her debtors her life will be in danger. She claims the authorities did not offer any help and she does not believe they will be able to help now. She claims the debtors are well connected and they will be able to find her wherever she moves.

    Tribunal hearing

17. The Tribunal questioned the applicant about the nature of her investment. The applicant said that her friend ([Ms A]) was investing in stocks and invited her to take part in the investment in the amount of $[amount] TWD (about $[amount] AUD). The applicant said that she put in $[amount] TWD of her own money and borrowed $[amount] TWD from other people. She found out her friend had disappeared and the people that loaned her the money asked for it to be paid back. She tried to pay back the money but the interest kept growing. The applicant said she had no valuables and could not repay the loan. She was threatened by the money lenders. A friend told her to travel to Australia so that she could work and repay the loan.

18. The Tribunal asked the applicant if [Ms A] was involved in banking or commerce. The applicant said [Ms A] was not involved in banking and commerce. The Tribunal asked the applicant why she would trust [Ms A] and invest the money. The applicant said that [Ms A] had experience in investing money. The applicant was unable to tell the Tribunal where [Ms A] invested her money. All she could tell the Tribunal was that it involved “stocks”.

19. The Tribunal asked the applicant if she could tell the Tribunal where her $[amount] TWD was invested. The applicant said that she did not know. After further questioning she thought the money was invested in “futures”. She claims she was not given any documents as proof of her investment. The applicant claimed she was brainwashed. She did not ask [Ms A] any questions about the investment.

20. The Tribunal asked the applicant where she borrowed the money from. The applicant said it was a man. She thought he was from a lending institution but she did not know the name. She claims she signed a document but was not given a copy. She claims the document only contained her name and the lender’s name, the date and the amount of money that was the subject of the loan.

21. The Tribunal asked the applicant why would people agree to lend her money if she had no assets and no way of establishing if she could repay the loan. The applicant said it was common in Taiwan for such loans to be done through the underworld. Gangs would come and demand the money and charge high interest. She claims that if she could not repay the money she would be taken into prostitution.

22. The Tribunal questioned the applicant about what happened to her friend. The applicant said she lost contact with her. She tired contacting her by telephone and online but could not provide further information.

23. She claims she was threatened and slapped in the face. The applicant could not remember when.

24. The applicant claims she went to the police but they could not help because she did not report the matter straight away. She claims she was not given a report.

25. The Tribunal discussed with the applicant country information referred to in the annexure to this decision which suggests that Taiwan does have an effective and credible police force and that laws exist to protect people from debt collectors. The applicant said she did not know anything about such laws.

26. The Tribunal questioned the applicant about the delay in applying for the protection visa. The applicant said she had no experience and did not know about protection visas at the time. The Tribunal told applicant that it found it surprising that she would not make enquiries on the internet, speak to the Department or seek advice from a migration agent.

27. The Tribunal told the applicant it was surprised that she would return back to Taiwan in June 2015 and June 2016 if she feared persecution in Taiwan. The applicant said she returned because her mother was sick.

    Findings

28. The Tribunal has had regard to the applicant’s evidence regarding her reason for coming to Australia and the circumstances in which she lodged the protection visa application.

29. Firstly, the Tribunal finds that the applicant’s claims concern a private matter where she fears harm from criminal money lenders in Taiwan. The Tribunal finds that the claimed persecution feared by the applicant is not for any of the reasons mentioned in s.5J(1)(a) of the Act. The Tribunals also finds that there is no evidence to support the claim that the applicant would be denied protection by the authorities for one of the grounds mentioned in s.5J(1)(a) of the Act.

30. Country information detailed in the annexure to this decision confirms that the Taiwanese authorities (police and judiciary) are reasonably effective in combating criminal activity and in protecting civilians from criminal harm. The Tribunal also notes that while there is some corruption within the system, there was no evidence to indicate the State would be unable or unwilling to protect the applicant in her particular circumstances.

31. Having considered the information and the applicant’s profile the Tribunal finds there is no evidence to indicate that the State would be unable to or unwilling to protect the applicant in her particular situation.

    Credibility

32. Secondly, the Tribunal did not find the applicant to be a credible witness. Having considered all of the evidence, the Tribunal does not accept any of the applicant’s claims. The Tribunal finds that the applicant has manufactured the entirety of her claims regarding her experiences in Taiwan and her reasons for seeking protection.

33. The Tribunal found the applicant’s evidence at the hearing vague, lacking in detail and inconsistent. The Tribunal finds it difficult to accept that he applicant would borrow money and invest $[amount] TWD and not ask any questions about the nature of her investment. The Tribunal does not find it credible that the applicant would invest money and not be provided with any documentary evidence to substantiate her investment. 

34. When questioned by the Tribunal the applicant could not provide any evidence about [Ms A]’s investment activity and why she would trust her. The applicant could not explain what stocks she purchased or the nature of her investment. She claimed she was assaulted but could not provide evidence when this occurred.

35. The Tribunal found the applicant’s evidence about her efforts to locate [Ms A] unconvincing. There is no evidence she reported [Ms A]’s disappearance to the police.

36. The Tribunal has also had regard to the delay and timing of the applicant’s protection visa application. The Tribunal finds that if the applicant held a genuine fear of persecution she would have applied for the protection visa as soon as she arrived in Australia rather than wait for almost two years before seeking protection. The Tribunal does not find the applicant’s claim that she had no knowledge of the possibility of applying for a protection visa credible.

37. The Tribunal also finds it inconsistent that the applicant claims to fear persecution in Taiwan but would voluntarily return to Taiwan in June 2015 and June 2016 before she applied for the protection visa.

38. The Tribunal has also had regard to the criteria for a Subclass 417 visa that are set out in Part 417 of Schedule 2 of the Regulations. The Tribunal notes that cl.417.222(b) requires that an applicant for the visa has not previously held more than 1 [temporary] visa in Australia. The Tribunal finds that the applicant was ineligible to apply onshore for a third onshore subclass 417 visa. Having found that the applicant is not a credible witness and having not accepted her claims the Tribunal finds that the applicant applied for the protection visa to facilitate a migration outcome to enable her to remain in Australia and not because she held a genuine fear of persecution in Taiwan.

39. Having considered the claims and evidence, the Tribunal finds that there is not a real chance that the applicant will suffer serious harm if she returns to Taiwan now or in the reasonably foreseeable future. The Tribunal finds, therefore, that the applicant does not have a well-founded fear of persecution.

40. 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).

41. The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions. The Tribunal has not accepted any of the applicant’s claims regarding her experiences in Taiwan or her reasons for leaving Taiwan. For the same reasons as those set out above, the Tribunal does not accept that the applicant was threatened by money lenders or that there is a real risk that she will be subject to harm from criminals or any other persons if she returns to Taiwan. 

42. 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 that there is a real risk that the applicant will suffer significant harm, including arbitrary deprivation of life, torture, the death penalty, cruel or inhuman treatment or punishment or degrading treatment or punishment.

43. 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).

44. 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

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

    Christopher Smolicz
    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.

    …

    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 them 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …

    Country Information

    The Tribunal has had regard to the following country information prepared by the Department’s Country of Origin Information Service Section (COISS) in assessing the applicant’s claims:[1]

    [1] DIBP, Common Claims Republic of China (Taiwan) COISS effective from 1 June 2017 CRF00C22F72

    Police force

    Operating within a low-crime environment, the National Police Administration (NPA) of the Ministry of Interior is effective and well-regarded. The NPA’s main missions are to carry out police and law enforcement in Taiwan, maintain public order, uphold the safety of its citizens and society, prevent hazards and to promote the welfare of its citizens. In 2016, an independent survey showed rising levels of confidence in citizen satisfaction with the police, reaching over 73% that year. There were criticisms that the police had used undue force to remove student protesters from the Executive Yuan in 2014 and a subsequent occupation of the Ministry of Education in 2015 was more restrained. The constitution prohibits arbitrary arrest and detention and this is generally observed.

    Crime

    Taiwan has a low crime rate and one of the lowest violent crime rates worldwide. There is extensive CCTV coverage throughout Taiwan, which plays a significant role in deterring the majority of criminal activity, as the overall crime rate is 1.3 per cent, and overall violent crime in Taiwan is at a worldwide low of just 0.01 per cent. In the first 11 months of 2016 about 70 per cent of nearly 7,000 economic crime cases involved the infringement of intellectual property rights (IPRs).

    ….

    Loan sharks

    Major operations against criminal gangs involved in loan shark and other associated activities are carried out. Violations of domestic financial rules, such as loan shark ring operations or underground economic activity, totalled 947 cases or 19 per cent of total economic crimes from January to August 2016, causing a loss of NT$6.3 billion, or 36.5 per cent of total losses from economic crimes. In May 2015 four police officers along with other suspects alleged to have been involved in supporting a major loan shark were summoned. A large raid was carried out in December 2015 with 142 suspects detained. Twenty people in a New Taipei gang were arrested in August 2016 and bats, firearms and bullets were confiscated.

    Judicial system

    Some corruption remains in the judicial system although trials are considered to be fair. The judiciary is independent and trials are generally fair. There is an independent and impartial judiciary for civil matters. There is some corruption in the system, although authorities have made efforts to eliminate corruption and reduce political influence in the judiciary. All defendants are presumed innocent until proven guilty and have the right to an attorney.

    The USDOS Taiwan Human Rights Report for 2016[2] states that the National Police Administration (NPA) of the Ministry of the Interior has administrative jurisdiction over all police units. Civilian authorities maintained effective control over NPA and authorities had effective mechanisms to investigate and punish abuse and corruption. The law provides criminal penalties for corruption by officials and authorities generally implemented the law effectively.

    [2] "Taiwan - Country Report on Human Rights Practices 2015", US Department of State, 13 April 2016, OGD95BE926327

    The independent evidence indicates that the debt collectors are prohibited from harassing or harming persons in relation to debts, and there is an independent agency which assists people who have been the victims of debt collectors.[3]

    [3] The Consumer Financial Protection Bureau enforces the Fair Debt Collection Practices Act in Taiwan states that debt collectors many not “harass oppress or abuse you” and “a debt collector is not allowed to discuss a debt with anyone else”. A victim can report problems to the state Attorney General’s Office, the Federal Trade Commission and the Consumer Financial Protection Bureau. Taiwan News 2015, ‘In Debt and Afraid: Dealing with Debt Collectors’, 26 March.