1716887 (Refugee)

1716887 (Refugee) [2017] AATA 2947 (20 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1716887
COUNTRY OF REFERENCE:                  Taiwan
MEMBER:Christopher Smolicz
DATE:20 November 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 20 November 2017 at 9:50am
CATCHWORDS
Refugee – Protection visa – Taiwan – Naturalised Taiwanese citizens – Pressured into gambling – Gambling debt – Fear criminal gangsters – No well-founded fear of persecution – Credibility issues

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

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 applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Taiwan, applied for the visas [in] June 2016.
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 (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 them self 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.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
Issue
The issue in this case is whether the applicants meet the refugee or complementary protection criteria because they fear persecution in Taiwan from criminal gangsters.
Background
The first named applicant (the applicant) is [age] years old and the second named applicant is [age] years old. They were both born in [Country 1]. The applicants have been living in Taiwan for about 10 years. The applicants are married and have one [child].
The applicants arrived in Australia [in] April 2016 traveling on a [temporary] [visa]. The visa was valid until [July] 2016.The applicants travelled to Australia as holders of passports issued by the Republic of China (Taiwan).
Country information indicates that Taiwan does not recognise dual citizenship and requires foreigners to renounce their original citizenship before they can apply for Taiwanese citizenship.[1] At the hearing the applicants claimed they do not have [Country 1] citizenship.
[1] Rudi Smith, “Turning Taiwanese: A Step-By-Step Guide to Acquiring Taiwanese Citizenship” Taiwanease, 01 April 2013, CIS36DE0BB2228
The Tribunal finds that the applicants do not have a right to enter and reside in a country other than their country of citizenship, namely Taiwan.
Summary of substantive claims
The applicants completed separate applications for a protection visa (form C). The applicant confirmed that his written claims are contained in a typed statement located at folio 65 to 66 on the Department’s file. The second named applicant said that she did not make her own claims and was relying on the claims of her husband.
The applicant does not have any educational qualifications and said that he worked as [an occupation] earning about $ [amount] TWD per month ($ [amount] AUD).
The applicant claimed that one day in June 2015 his boss invited him out to have some fun at a holiday resort. The applicant claims he was approached by people at the resort who invited him to purchase gambling chips. The applicant said he had $ [amount] TWD in cash and he borrowed $ [amount] TWD from his boss. He purchased $ [amount] TWD in chips and started to gamble. He lost the money and ended up with a [substantial] gambling debt ($ [amount] AUD). The applicant said that criminal gangsters forced him to gamble and they now want him to repay the debt. He can not repay the money and fears for his life.
The Tribunal explained to the applicant that it found it unusual that he would only have $[amount] TWD and that he was able to lose [a substantial amount]. The applicant said that when he lost the $ [amount ]TWD the people gave him more and more chips to gamble.
The applicant said that he felt trapped and took the chips and kept gambling. The Tribunal told the applicant that normally people use money and purchase chips which they gamble. The applicant said he did not have any money and the people told him he must take the chips and gamble. The Tribunal told the applicant it found it difficult to accept that he was given chips to gamble without producing any money after he lost the initial [amount] TWD.
The applicant said he was forced to take the chips and the people stabbed him [when] he tried to refuse. At the hearing the applicant pointed out a scar [and] claims it was caused by the gangsters. The Tribunal told the applicant it was not qualified to make a diagnosis of what caused his scar and asked if he had a medical report. The applicant said that he did not have a report and the gangsters gave him a band aid and he put it on [and] kept gambling. He claims the gangsters wrote down his debt and said they were going to come to his home and collect the debt. He claims he was defrauded. The Tribunal asked the applicant if he had a problem with gambling in the past. The applicant said he had no problems and does not gamble.
The Tribunal asked the applicant if he had any other evidence to support his claims. The applicant said he did not tell anyone about his troubles and it was a private matter. The Tribunal asked the applicant if he approached the police for assistance. The applicant said he did not go to the police. He spoke to a friend who told him there was no point in going to the police because they could not help him because he did not have any evidence and it was a personal matter. The Tribunal told the applicant that country information suggests that Taiwan has an effective and well regarded police force and he could have shown the police the injury caused by the gangsters, he could have obtained evidence from his boss and he could show the police the location where the gangsters were operating. The applicant claimed that the police would not protect him because he was a foreigner.
After further questioning the applicant changed his evidence and said that he forgot that he did declared in his statement that he did go to the police for help. He did not have a police report and he did not have any evidence. The Tribunal told the applicant that it was concerned that he has changed his evidence.
The Tribunal asked the applicant to explain the number of times he faced problems from the gangsters. The applicant said he was stalked by them and they put [paint] on his door. He claims they threatened his wife and [child]. The Tribunal asked the applicant why he did not travel to Australia with his [child] if he feared persecution. The applicant said that his [child] was in [Country 1] with relatives and he and his wife travelled to Australia to work. The Tribunal told the applicant it was surprised that he did not travel to Australia with his [child] on the [temporary] visa if [his/her] life was in danger.
The Tribunal asked the applicant why he did not approach his family and ask them for help. The applicant said that he did approach his family but they did not have enough money to help him. The Tribunal referred the applicant to his earlier evidence where he said that he did not ask anyone for help. The applicant said that he only asked his family.
The Tribunal invited the second applicant to provide evidence about her fear of persecution in Taiwan. The second named applicant said that she has the same fears as her husband. She claims that her husband told her about the problems with the gangsters only about two months before they travelled to Australia. The Tribunal noted that her husband claims he was stabbed by the gangsters. The second named applicant said that her husband told her that he fell from his motor bike and she did not know what happened at the time. The second named applicant said that she personally did not have any problems with the gangsters and did not go into hiding. The Tribunal referred the second named applicant to the statement of claims which state that both she and her husband had to hide from the gangsters every day.
The Tribunal explained to the applicants that it had concerns about the credibility of the claims. The Tribunal also explained to the applicants that the harm they fear in Taiwan is from criminal gangsters and is a private matter which is not for reason of race, religion, nationality, membership of a particular social group or political opinion.
Findings
The Tribunal does not accept that the applicants are credible witnesses and finds that they have manufactured the entirety of their claims regarding their experiences in Taiwan and their reasons for seeking protection.
The Tribunal also finds that the harm the applicants claim to fear in Taiwan is not for any of the reasons mentioned in s.5J(1)(a) of the Act. The Tribunal also finds that there is no evidence to support the claim that the applicants would be denied protection by the authorities for one of the grounds mentioned in s.5J(1)(a) of the Act.
The applicant provided inconsistent evidence about seeking police protection when questioned at the hearing. He first claimed he spoke to a friend and did not make a report to the police. After further questioning he changed his evidence and said that he did approach the police. He subsequently claimed that he would not be able to obtain police protection in Taiwan because he and his wife were foreigners. The Tribunal finds that the applicant did not provide evidence in his written claims that he was denied police protection because of his nationality or race.
The delegate had regard to country information from a number of different sources and found 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 applicants in their particular circumstances. The Tribunal finds the applicants would receive effective protection from the Taiwanese authorities against any threats from criminal gangs in the future.
As detailed in the annexure to this decision, country information reports that Taiwan is a largely homogenous society, with minority groups including 14 per cent mainland Chinese and 2 per cent indigenous people. Reports confirm that indigenous people continue to face social and economic discrimination.
The Tribunal accepts the applicants were born in [Country 1] and are of Chinese descent. As detailed above the applicants travelled to Australia on a Taiwanese passport. The Tribunal finds that they are citizens of Taiwan. They are not from a minority indigenous Taiwanese group. The country information does not support the claim that the authorities would withhold protection due to the applicants’ ethnicity, race or nationality.
The Tribunal has had regard to the country information and finds that there is no evidence that the Taiwanese authorities, namely the National Police Administration, would withhold protection to the applicants for any of the reasons mentioned in s.5J(1)(a) of the Act.
The Tribunal finds that there is no real chance that the applicants will face serious harm if they return to Taiwan because they were born in [Country 1] and are of Chinese descent or because they fear criminal gangsters. The Tribunal finds the applicants’ fear of persecution is not well-founded.
The Tribunal has also considered the applicants’ claims, having regard to the Complementary Protection provisions. The Tribunal has not accepted any of the applicants’ claims regarding their experiences in Taiwan or their reasons for leaving Taiwan. For the same reasons as those set out above, the Tribunal does not accept that the applicants and their [child] were threatened by gangsters or that there is a real risk that they will be subject to harm from underworld figures or any other persons if they return to Taiwan.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Taiwan that there is a real risk that they will suffer significant harm, including arbitrary deprivation of life, torture, the death penalty, cruel or inhuman treatment or punishment or degrading treatment or punishment.
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).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
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 for protection:[2]
[2] DIBP, Common Claims Republic of China (Taiwan) COISS effective from 1 June 2017 CRF00C22F72
Race
Taiwan is a largely homogenous society, with minority groups including 14 per cent mainland Chinese and 2 per cent indigenous people. Taiwanese people make up 84 per cent of the population and mainland Chinese constitute 14 per cent of the population. Members of 16 indigenous tribes make up around two per cent of the population. Indigenous people continue to face social and economic discrimination.
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[3] 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.
[3] "Taiwan - Country Report on Human Rights Practices 2015", US Department of State, 13 April 2016, OGD95BE926327

[2017] AATA 2947

20 November 2017

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Standing