1715669 (Refugee)

[2024] AATA 4079

1715669 (Refugee) [2024] AATA 4079 (25 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1715669

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Andrew Verduci

DATE:25 July 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 25 July 2024 at 1:06pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – failure to attend scheduled hearing – right to enter and reside in a third country – parent’s citizenship status – migration history – delay in seeking protection – illegal money lender – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a [age]-year-old male citizen of Taiwan. He arrived in Australia in June 2014 on a Working Holiday visa and has remained in Australia since that time.

2. He applied for a Protection in July 2016. His application was refused by a delegate of the Minister for Immigration and Border Protection on 4 July 2017 under s 65 of the Migration Act 1958 (Cth) (the Act).

3. This is a review in relation to that decision.

   Protection visa application

4. I have reviewed the applicant’s written application for the Protection visa. It can be summarised as follows:

   ·It is a handwritten application that purports to have been completed by the applicant without the assistance of anyone else.

   ·Large parts of the application form have not been answered, including the details of any family members who are not included in his application, the details of all previous addresses he has lived at during the last [number] years, the details of all his employment and unemployment and the details of all his education and qualifications since birth.

   ·It lists the applicant’s mother and father as being married and, in multiple places, states that they are citizens of Thailand.

   ·It lists the applicant’s current citizenship as Taiwan and says that he is not a current citizen or national of any other country.

   ·It says that he left Taiwan to escape from underworld gangsters. He borrowed money from unlicenced lender who unanimously changed the terms of his loan and required him to pay back more money than had been agreed. He refused to pay more money and was forced to sign a document in order to be released. He went into hiding because he couldn’t afford to pay the new amount.

   ·He was falsely imprisoned and physically beaten and fears death or great bodily harm if he returns to Taiwan. He sought help from the police but lacked evidence so the police did not prove any protection. It is impractical for him to relocate within Taiwan and the money lenders are always able to locate him.

5. The delegate accepted that the applicant was born in Thailand and is a citizen of Taiwan. The delegate found that the applicant did not claim to fear harm for a reason mentioned in s 5J(1) of the Act and therefore did not satisfy the criteria in s 36(2)(a). They also found that the applicant would receive protection from Taiwanese authorities such as to reduce any risk of harm he might face to less than a real one. Accordingly, the delegate found that the applicant did not satisfy s 36(2)(aa) either.

   History of Tribunal proceedings

6. The applicant applied for a review of the delegate’s decision with this Tribunal on 19 July 2017. Although due to circumstances beyond my control, it is regrettable that it has taken so long for his application to be considered.

7. This application for review was first constituted to former Member Biviano. The applicant appeared in person before former Member Biviano to give evidence and present arguments on 19 June 2023. I have listened to a complete audio recording of this hearing and have access to the same case material that was before former Member Biviano.

8. Mr Biviano ceased to be a Tribunal member after the applicant appeared before him but before a decision was made. The application was then re-constituted to me.

9. On 18 June 2024, the applicant was sent an invitation to appear in person before me on 24 July 2024 at 10:30am to give evidence and present arguments about the issues arising in relation to the decision under review. He was advised that his application had been re-constituted to a new Member, and that the new Member would be conducting the hearing. He was advised that I had considered the material before me but that I was unable to make a favourable decision on this information alone. He was also advised that I may make a decision on the review without taking any further action to allow or enable him to appear if he did not appear at the scheduled hearing.

10. The applicant completed and returned a response to hearing form on three separate occasions. Each response indicated that he will take part in the hearing scheduled for 24 July 2024. He was also sent SMS hearing reminders on 17 July and 23 July 2024, and there is no indication that these SMS reminders were not delivered. In contrast, an SMS reminder sent on 9 June 2023 for the first hearing did generate a delivery failure notification, although the applicant did still appear at that hearing. All SMS reminders and attempts to telephone the applicant have used the same telephone number because the applicant has not notified the Tribunal of any change to his telephone contact details.

11. The applicant did not appear on the day and at the time and place of the scheduled hearing. I allowed for the hearing to remain open from 10:30am until 11:15am but there was no appearance by the applicant.

12. On my instructions, a Tribunal officer attempted to contact him by telephone at 10:32am, 10.35am, 11.00am and 11:15am. The record of those attempts states that the phone rang out with no answer and there was an automated message stating that the number may be incorrect.

13. Also on my instruction, an email was sent to the applicant at 10:41am, noting that he had not appeared at his hearing scheduled for 10:30am that day. He was asked to contact the Tribunal by telephone because we had tried calling him but had not been able to get through. It is regrettable that this email included an incorrect telephone number to call the Tribunal on, although he was sent a second email at 10:44am which asked him to disregard the incorrect telephone number and provided him with the correct one.

14. The applicant has made no contact with the Tribunal to explain why he did not appear at the scheduled hearing.

15. I place some weight upon the applicant’s earlier appearance at the hearing on 19 June 2023 and his stated intention to appear before me on 24 July 2024. However, his return of a completed response to hearing form also demonstrates his actual knowledge of the scheduled hearing. I place greater weight on his failure to appear before me as scheduled and his lack of any contact with the Tribunal, either before, during or after his scheduled hearing, to explain why he could not or did not appear. I also place some weight upon the Tribunal’s attempts to call him by telephone at the time he was scheduled to appear and the emails he was sent asking him to contact the Tribunal.

16. Weighing up all of the circumstances, I have decided to make my decision without taking any further action to allow or enable the applicant to appear before me.

    CRITERIA FOR A PROTECTION VISA

17. 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.

    Mandatory considerations

18. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

19. There is currently no DFAT report prepared expressly for protection status determination purposes.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. I find that the applicant does not face a real chance of serious harm, or a real risk of significant harm, in Taiwan now or in the reasonably foreseeable future.

21. Based on his passport, I find that the applicant is a citizen of the Taiwan and that this is his receiving country. There is a degree of uncertainty about the citizenship status of his parents, and whether this means that the applicant may also be a citizen of Thailand. I have significant concerns about the applicant’s evidence regarding this and I am not persuaded that both of his parents have renounced their Thai citizenship as he has claimed. As he claims to have been born in Thailand to parents who are, or at least were, Thai citizens at the time of his birth, it would seem that he acquired Thai citizenship at birth.[1] Country information also appears to suggest that both Thailand[2] and Taiwan allow for dual nationality.[3]

    [1] Thailand Nationality Act B.E. 2508, section 7 ( (accessed 25 July 2024).

    [2] Thai dual citizenship – Is it Legal? ( (accessed 25 July 2024).

    [3] Taiwan Nationality Act ( (accessed 25 July 2024).

22. Ultimately, it is unnecessary to resolve this as I find that the applicant’s receiving country is Taiwan, this is the country that he claims to fear harm in, this is the country that he will be returned to, and I find that does not face a real chance of serous harm, or a real risk of significant harm, now or in the reasonably foreseeable future in this country.

    Visa history and delay

23. I place some weight upon the applicant migration history and delay in applying for a Protection visa in Australia.

24. I do not accept the applicant’s account about why he travelled to Australia in 2014. If he was already relocating within Taiwan’s countryside and had had two previous encounters with the money lender, I do not accept that he decided to travel to Australia in 2014 because he had some friends who were also going at that time. If he genuinely feared harm in Taiwan from 2013 onwards, I do not accept that he waited until July 2014 to depart Taiwan and enter Australia on a Working Holiday visa. It is implausible, and I do not accept, that he would then wait until July 2016 before applying for a Protection visa when he is in Australia. The fact that he made a visa application in Australia for a second Working Holiday visa, which was granted in April 2015, before eventually applying for a Protection visa in July 2016, strengthens my finding about this.

25. If he had previously contacted Thai authorities to seek their protection when he was in Taiwan, and then navigated Australia’s visa system to apply for, and be granted, two Working Holiday visas, I do not accept that he was unaware Australia offered a Protection visa until July 2016 or that he lacked the experience and knowledge to apply for one until eventually doing so in July 2016.

    Money lender

26. I do not accept that the applicant borrowed money from a money lender in, or around, 2010, or that the money lender unilaterally changed the lending agreement and demanded payment of additional money in about 2013.

27. The circumstances surrounding the borrowing of money are vague, implausible and not accepted.

28. I do not accept that he purchased a [business] for TWD3,500,000 or that he borrowed TWD2,500,000 from an unlicensed money lender to complete the purchase. The purchase price of TWD3,500,000 is equivalent to approximately AUD162,000.00.[4] For such a significant amount of money, I do not accept that chose to use an illegal money lender because they were offering a lower interest rate than the banks, that he meet this lender in the [business], that no paper work or formal agreement about the loan was recorded, and that he was given all of the money in cash.

    [4] (accessed 25 July 2024).

29. I do not accept that the vendor selling the shop would accept a TWD1,000,000 deposit, hand over the business to the applicant and allow him to commence trading and not require payment of remaining TWD2,500,000 purchase price until more than one year later. When asked what would happen if he was unable to pay the full purchase price one year later, the applicant claims that the former owner would have come around and smashed the shop window. Even if I did accept that the vendor would wait more than a year to be paid in full, which I do not, I consider that it is more plausible that the former owner would still have some claim or entitlement to the shop if they had not been the full purchase price. It is implausible, and I do not accept, that in those circumstances the owner would damage his own property because he had not been paid.

30. I do not accept that the money lender would unilaterally require the applicant to pay an additional TWD1,500,000 at the time the applicant has repaid all of the money he claims to have borrowed. His evidence about this is also vague and lacking in detail.

31. The applicant does not claim to have completed any formal paperwork at the time of the original loan or to have given any form of security such as a title or personal property. His written application suggests that he was imprisoned by the lender at the time of his demand and only released when he signed a document, but his evidence and description of this event during the hearing did not include signing any document until concerns about his failure to mentioned that were raised with him. He also agrees during the hearing that he was not imprisoned but does claim he was beaten and to suffer memory loss as a result.

32. Having claimed to have earnt good money from the business and was therefore able to repay his original loan in full, I do not accept that his response to this situation was to close his shop and flee to the countryside. If he had already paid the full purchase price of TWD3,500,000 for the shop, I do not accept that he would then simply abandon it without taking any steps to recover any of the money he had invested in it.

33. I do not accept that he closed his shop and fled to the countryside to escape the money lender. His evidence about where he went and what he did is incredibly vague. I do not accept that he is unable to recall sufficient details because it was all so long ago and/or because he was moving address every one or two weeks. If he had travelled a few hours away to hide out in the countryside, I do not accept that he had two random encounters with the money lender. It is implausible, and I do not accept, that his first chance encounter was in a vegetable market but that he escaped before the money lender before he was seen.

34. I also do not accept there was a second chance encounter approximately three hours outside of Taipei where he was beaten. Although claiming to have been hospitalised, he also claims to have not reported the incident to the police.

35. His evidence about contacting police is inconsistent and I place some weight upon this. His written application states he did seek help from the police but that they could not help because he had no evidence. His evidence during the hearing is that he never did report the matter to the police or seek any help from them, but also that his memory is not too good because it was a long time ago and/or he was beaten in the head. I accept that the passage of time may mean that some detail in recollection is lost or confused. I do not accept that the passage of time is a satisfactory explanation for the applicant’s inability to accurately or consistently recall whether he ever sought help from the police because he felt his life was in danger. As I do not accept that he borrowed money from a lender, I do not accept that inconsistencies or vagueness in his evidence is because he was beaten in the head by them either.

36. Finally, I note that the applicant has had no contact with the money lender since his claimed chance encounter in 2014. I place weight upon the applicant’s evidence that his parents still live in Taipei but that no one has threatened them or otherwise approached them asking about the applicant’s whereabouts. He claims to have stopped contact with his family after arriving in Australia but has not explained why. Considering his limited evidence about this, I do not accept that he stopped contact with his family in or around 2017.

    Conclusions

37. In summary, I am concerned about the vagueness of the applicant’s evidence. I place weight upon the circumstances of his travel to Australia and his visa/migration history, as well as his delay in applying for a Protection visa once he was already in Australia. I also place weight upon the lack of personal information provided in his Protection visa application and his failure to answer, either accurately or at all, critical questions in it. I pace weight upon the lack of any objective evidence demonstrating that he purchased a shop in Taiwan, was given over one year to pay the full purchase price, borrowed money from a lender, was forced to sign a document agreeing to pay additional money, and/or was hospitalised as a result of being physically assaulted. Additionally, I place weight upon the inconsistencies in his evidence such as whether or not he ever sought help from the police and/or was required to sign any documents at the time he claims that he was forced to repay extra money that he did not owe.

38. Considering all of the circumstances, I do not accept that the applicant purchased a [business]. I do not accept that he borrowed money because he needed it to complete the purchase, or that he used a money lender because they were offering lower interest rates than the banks. As I do not accept that he purchased the shop or borrowed any money, I do not accept that the money lender forced him to pay an additional sum of money after the original loan was repaid. It follows that I do not accept that the applicant was beaten and forced to sign a document when he refused, that the money lender and others came around to the applicant’s shop demanding money, that he was beaten and had his property damaged, and/or that he closed his shop and went into hiding but had two chance encounters, one of which led to him being beaten and hospitalised.

39. I find that the applicant does not face a real chance of serious harm, or a real risk of significant harm, for the reasons that he has claimed now or in the reasonably foreseeable future.

40. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act.

41. 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 and I find that he does not.

42. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Andrew Verduci
    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.

    …