1730371 (Refugee)

[2023] AATA 3397

1730371 (Refugee) [2023] AATA 3397 (19 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730371

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Sean Baker

DATE:19 July 2023

PLACE OF DECISION:  Sydney

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

Statement made on 19 July 2023 at 4:11pm

CATCHWORDS  
REFUGEE – protection visa – Taiwan – persecuted by an underground bank and a gang – claim fabricated by agent – war between Taiwan and China – father’s drug and gambling problem – 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. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 November 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 the Republic of China (Taiwan), applied for the visa on 18 September 2017. The delegate refused to grant the visa on the basis that the applicant did not seek protection for a s 5J reason and was not satisfied that there was a real risk the applicant would suffer significant harm if removed from Australia to Taiwan.

3. The applicant appeared before the Tribunal on 18 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

7. 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.

8. 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

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether there is a real chance the applicant will suffer serious harm for a s 5J reason in Taiwan or, if not, there is a real risk he will suffer significant harm if he is removed from Australia to Taiwan. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Claims and evidence

    Migration history

11. The applicant entered Australia [in] November 2014 on a working holiday visa. He was granted a second working holiday visa in 2015. He was then granted a student visa in 2016. He travelled to Taiwan on two occasions in 2016 and 2017. He sought another student visa but this was refused in August 2017. He then applied for the protection visa.

    Application

12. In his application for protection, the applicant claimed that he had been persecuted by an underground bank and a gang because he had been unable to repay money. He claimed he had borrowed this money because his mother was unwell, and the family had been unable to afford her medicines. He claimed that he had taken out a loan from the underground bank despite the interest being very high, as he had no choice. People had come to their house and ransacked it, threatening that he needed to repay the money.

13. His parents sent him overseas as they were worried about his safety. He learned that the underground bank was connected with a gang. His parents were monitored and harassed by the gang, so the applicant returned to Taiwan as he was worried about his parents.

14. He wrote a public letter about the gang’s treatment, but this caused the gang to detain his parents and forced them to reveal the applicant’s location. He returned to Australia as he was in fear of the gang. He wrote that the underground bank and the gang collude with the police and protect each other. The Taiwanese Government is corrupt. He fears if he returns to Taiwan, he will be arrested by police working at the behest of the underground bank and the gang. After he is arrested, he will be imprisoned, persecuted and die.

15. As noted above the delegate refused the application.

    The review

16. The applicant did not appear at the first hearing. His case was dismissed but he sought reinstatement. For the reasons expressed in the interim decision to reinstate, I decided to reinstate the decision.

17. The applicant was invited to a second hearing. He sought an adjournment on the basis he had submitted an FOI request to the Department for his file. I decided not to grant this adjournment because the Tribunal was able to provide a copy of the application he had made to the Department to the applicant prior to the hearing. He confirmed at the hearing that he had received this.

18. At the hearing the applicant gave me a statement, a news article dated [in] December 2018 about his former migration agent having been charged with migration offences, and his Taiwanese passport and NSW driver’s licence.

19. In the statement he said that he would like to genuinely apologise to the AAT and Department for making a terrible mistake, trusting the wrong person and signing a lawful letter recklessly without reading. He expressed deep regret and that he would act differently if he had a chance to do it again.

20. At the hearing he explained that he had trusted his migration agent, but it turned out she was not a proper agent. He said he had thought she was legitimate because she had a lot of certificates and diplomas on the wall. He said that she had told him that despite his student visa being refused she could get him a two-year visa. He said it was his responsibility that he had signed the application, it was all a made-up story by this woman, and he bitterly regretted signing.

21. The applicant told me that he had his mother and father and three siblings. He noted that his father had two wives so he had two mothers. He said that he had a partner who he thinks is an Australian citizen. They have been together for a year but it has been on and off.

22. The applicant said that he had worked as a waiter in a nightclub in a shady area in Taiwan, he said this had been the best way to earn money to travel to Australia. He confirmed that he had travelled to Australia on a working holiday maker visa, had been granted a second and then a student visa to study English. Then his second student visa had been refused. He said that he had worked in a variety of jobs, [specified]. However, in the past four years he had been [working], leading 3-4 men and had his own company.

23. I then asked the applicant about his claims for protection. The applicant returned to speaking about his past agent who had, said the applicant, submitted a false claim. He said he had spoken to a number of lawyers who had told him the claims in his application. The applicant said again that he regretted not reading his application before signing it. He wished only to live and work here legally.

24. I asked if he feared return to Taiwan, for any reason. He said he did not have any fear, the claims were false. I went through each aspect of the claims written in his application and to each he responded that these were not true. He did say that his family owes some money, but it was not that serious.

25. I asked what he feared if he returned to Taiwan. He said that to be honest what he feared was that Taiwan would be in a war with the People’s Republic of China (China). He said he had served in the military and he knew what the army was like. When the senior commanders talked about whether China will take over Taiwan he thought it really is going to happen. I explained to the applicant that understandable as I found this fear, it might not lead to a finding of a real chance or real risk of such harm occurring in the reasonably foreseeable future because it was not certain, only speculated, that this would occur. The applicant indicated he understood.

26. I asked if he had any other fear or thought he would be harmed on any other basis on return. He said he did not. He said he had not had any trouble with the authorities in Taiwan.

27. I asked the applicant about his statement that his family owed money. He said that his father had had gambling debts, his father had played mah-jong and taken drugs and gambled. He had abused the applicant and his mother, but the applicant still felt filial loyalty. He did not want to repay his father’s debts with his own hard-earned money but he had done so. I asked if there would be any problems for him if he returned to Taiwan because of his father’s debts. He said there would not be as they had pretty much paid those debts off, and his father was getting old now and was not able to gamble.

28. I also spoke with the applicant about his company. He said that this company had generated revenue last year and had paid himself and workers. He had run this company for two to three years. He was about to be awarded certificate III in [subject].

    Consideration

29. I found the applicant at hearing to be entirely credible. I accept his evidence that the person he believed to be a migration agent drafted his claims and that he signed them not reading or being aware of their contents. I accept that he is genuinely remorseful.

30. The applicant was very clear at the hearing that the written claims in his protection application were untrue in total and on taking him through them in detail he confirmed that each was untrue.

31. On this basis I find that the applicant was not persecuted by an underground bank and a gang because he had been unable to repay money. I find that the applicant did not take out a loan from an underground bank or anyone else, to afford medicine for his mother or for any other reason. I find that people did not come to their house and ransack it and threaten that he needed to repay money. I find that his parents did not send him overseas because they were worried about his safety. I find that he did not learn that the underground bank was connected with a gang. I find that his parents were not monitored and harassed by the gang or anyone else, nor that this was the reason the applicant returned to Taiwan. I find that he did not write a public letter about the gang’s treatment, nor that he wrote that the underground bank and the gang collude with the police and protect each other. I find that the gang did not detain his parents after this or at any other time. I find he did not return to Australia because he was in fear of the gang. I find that he does not believe the Taiwanese Government is corrupt. I find that he does not fear he will be arrested by police working at the behest of the underground bank and the gang, nor fear he will be imprisoned, persecuted and die.

32. I do accept that the applicant is fearful that there may be a war between Taiwan and China. But as I raised with him, I find that this claim is too speculative to be a basis for a well founded fear or a real risk of harm. Whilst there are credible opinions that such a war may occur, these are couched in terms of what might or may happen. This is, I find, a level of speculation that is remote or far-fetched and I find that there is therefore no real chance or real risk of the applicant being harmed in a war between China and Taiwan in the reasonably foreseeable future.

33. I have carefully considered the applicant’s claims about his family. I accept that his father took drugs and gambled and was abusive towards the applicant and his mother. I accept that the applicant, despite not wishing to, has sent money to help his family out of the debt from his father’s activities. I accept that his father is too old now for gambling and that the family has almost paid off the debt and what is remaining is not significant, as the applicant indicated. I accept the applicant’s evidence that he has no concerns about his father, the debt or about anyone connected to these things if he returns to Taiwan in the future. Having carefully considered this information I find there is no real chance or real risk of the applicant being harmed in the future by his father, those the family owes money to or anyone connected with his father’s former activities or debt if he returns to Taiwan in the reasonably foreseeable future.

34. The applicant was clear that he had no further fears nor any other basis on which he believed he would be harmed on return to Taiwan. I accept this evidence.

35. I find on the basis of the above and on the information before me that there is no real chance or real risk of the applicant being seriously or significantly harmed by anyone if he returns to Taiwan now or in the reasonably foreseeable future.

36. As noted above I found the applicant to be honest. I note he has set up his own company and has trained himself. He is, I consider, an industrious young man and all of the indications I have seen are that he would be a benefit to Australia. It is beyond the scope of this decision but I have referred to the details of his company and work above in case it assists him in any future endeavours.

    Conclusions

37. 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).

38. 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).

39. 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

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

    Sean Baker
    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.

    …