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1717391 (Refugee)

1717391 (Refugee)

Case [2023] AATA 3887 12 September 2023

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1717391 (Refugee) [2023] AATA 3887 (12 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1717391
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Jason Pennell
DATE:12 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 September 2023 at 10.21am

CATCHWORDS

REFUGEE – protection visa – Taiwan – fear of harm from debt collectors – guarantor for friend’s business loan – friend disappeared with money and applicant harassed and threatened – delay in applying for protection – applied soon before second working visa ceased – no details or evidence of lenders, threats or harm – only one approach a year before departing – after working in Australia, now has money to repay loan and return ticket – loan of that size unlikely with no assets or income – claim of loan not accepted – country information – effective police and judiciary – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), (2B)(b), (4), (5), 5L, 5LA, 36(2)(a), (aa), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225

Chan v MIEA (1989) 169 CLR 379

Kavan v MIMA [2000] FCA 370

MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445

MIEA v Guo (1997) 191 CLR 559

MIAC v MZYYL (2012) 207 FCR 211

MIAC v SZQRB [2013] FCAFC 33

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Selvadurai v MIEA (1994) 34 ALD 347

Subramaniam v MIMA (1998) VG310 of 1997

Zhang v RRT [1997] FCA 423

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The applicant who claims to be a citizen of Taiwan, applied for the visa on 3 October 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Migration Act 1958 (the Act)).
3.The applicant lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 8 August 2017. The applicant…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading 1717391 (Refugee)

Details

AGLC: 1717391 (Refugee) [2023] AATA 3887
Case: [2023] AATA 3887
Decision Date: 12 September 2023

CaseChat Overview and Summary

The applicant, who sought a protection visa, appealed a decision of the Immigration Assessment Authority (IAA) affirming the Minister's refusal to grant the visa. The applicant claimed to fear harm from debt collectors in Taiwan, alleging they were being harassed and threatened because they had acted as a guarantor for a friend's business loan. The friend had subsequently disappeared with the borrowed funds. The applicant had delayed applying for a protection visa until shortly before their second working visa was due to cease.

The primary legal issue before the court was whether the IAA had erred in its assessment of the applicant's claims regarding the fear of harm from debt collectors in Taiwan. This involved determining whether the applicant had provided sufficient credible and coherent evidence to establish a well-founded fear of persecution or significant harm, and whether the IAA had properly considered the available country information regarding the effectiveness of police and judicial systems in Taiwan. The court also considered the applicant's credibility, particularly in light of the delay in their application and the lack of specific details or evidence supporting their claims of threats and harm.

The court affirmed the IAA's decision, finding that the applicant's account lacked credibility and coherence. The IAA had reasonably concluded that the applicant had not established a well-founded fear of harm. This conclusion was based on several factors, including the significant delay in applying for protection, the absence of detailed evidence regarding the lenders, the threats, or the alleged harm, and the fact that the applicant had only reported one approach from debt collectors a year before departing Australia. Furthermore, the IAA found it unlikely that a loan of the size claimed would have been obtained without assets or income, and that the applicant now possessed the financial means to repay the loan and secure a return ticket, undermining the asserted fear. The court also noted that the country information indicated that Taiwan has effective police and judicial systems capable of addressing such matters.

Orders