1814858 (Refugee) - [2024] AATA 4168

1814858 (Refugee) [2024] AATA 4168 (12 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1814858
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Sheridan Aster
DATE:12 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 September 2024 at 1:49pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – fear of harm from father and debt collectors – father a gambling addict who elicited money from applicant and forced him to borrow from loan sharks – threatened and assaulted – police corruption and collusion with gangsters – inconsistent claims and evidence, lack of documentation and delay in applying for protection – applied after previous visas and two returns – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavan v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [Age]-year-old man from Taiwan. He first arrived in Australia [in] December 2014 on a Subclass 417 Working Holiday visa. The applicant had one extension to his Working Holiday visa. He was then granted a Subclass 500 Student visa on 25 January 2017. The applicant did not complete a course of study and could not recall what course he had applied for.
The applicant departed Australia and returned to Taiwan on two occasions: [in] May 2017 and from [June] to [July] 2017. He applied for protection on 15 February 2018, claiming he was at risk of harm from his father and debt collectors in Taiwan.
The delegate refused to grant the visa on the basis that adequate protection would be available to the applicant from Taiwanese authorities.
The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicant is a person to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.
CLAIMS AND EVIDENCE
On the application for protection form, the applicant claimed his father has a gambling addiction and borrowed money from relatives, friends and loan sharks. The applicant alleged that his father elicited money from him at knife point and forced him to borrow money from loan sharks. The debt became unmanageable and debt collectors visited the family residence looking for repayments and items of value. The applicant said he was assaulted by his father and debt collectors. He also claimed that he received death threats. The applicant said he feared for his safety in Taiwan and did not want to return.
The applicant said he did not report anything to the police because he was threatened with repercussions for his family. He also feared retaliation. The applicant claimed that the loan sharks are linked to corrupt police and other organised crime gangsters.
At the time of the visa application, the applicant worked as [an occupation]. He listed his mother, father and sister as living in Taiwan.
On 10 November 2023, the Tribunal requested that the applicant complete a Pre-hearing information form. The form asked if the applicant had any further information or evidence in respect to his claims for protection. The applicant left those sections of the form blank. No further information or evidence was submitted in advance of the hearing.
The applicant appeared before the Tribunal on 12 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant’s oral evidence will be discussed below where relevant.
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 (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.
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 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).
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.84, made under s 499 of the Act, I have 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.
ANALYSIS AND FINDINGS
I accept that the applicant is a [Age]-year-old man from Fengyuan, Taiwan. At the hearing, the applicant said he was not religious, but noted that Taiwanese culture is influenced by Buddhism.
Since making the application for protection, the applicant’s mother had passed away. His [sister] and father continued to live in Fengyuan.
In Taiwan the applicant worked in a factory producing [products]. At the time of the hearing, he was employed in a [workplace].
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, I am aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, I note that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant.[1] Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Minister (or the Tribunal on review) does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.
[1] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169.
For the following reasons, I do not accept that the applicant would face a real chance or risk of serious or significant harm from his father, loan sharks or debt collectors.
On the application for protection form, the applicant alleged that his father forced him to borrow money from loan sharks. At the hearing, the applicant said he never personally took a loan. He claimed that his father took his identification and used it to get a loan. He had no evidence of loans in his name and had never requested a credit report. When asked about inconsistencies between his written and oral evidence, the applicant said he was still young when the events occurred. I do not consider this to be a reasonable explanation for the discrepancies. As discussed with the applicant, he was an adult, aged [Age] at the time he claimed to have departed Taiwan to escape debt collectors.
At the hearing, the applicant claimed to have called the police when his father held a knife up to him and his sister. His grandfather intervened to protect them, and the knife was held up to him too. He said the police took no action to assist. The applicant also alleged that he never went to the police about the gangsters and loan sharks because he knew it was no use. The gangsters had contacts in the government and the police.
The applicant’s alleged fear of police corruption and collusion with gangsters and loan sharks does not align with independently available evidence. As discussed with the applicant, usury is a crime in Taiwan and can attract a penalty of up to five years in prison. The law proscribes lending money at an ‘obviously’ inappropriate interest rate based on the ‘urgent need, carelessness, inexperience or lack of other resort’ of the borrower. Monitoring, intrusion upon, threats, intimidation, and actual harm in an effort to instil fear are all criminalised.[2] Loan sharks have been targeted in broad crackdowns against criminals. Police operations against loan sharks are reported in the Taiwanese media and hundreds of loan sharks have been arrested in recent years.[3]
[2] Criminal Code of the Republic of China Government of Taiwan, as amended to 15 January 2020.
[3] Pan, J, ‘Police detain 350 in crackdown on organised crime,’ Taipei Times, 4 May 2021, Page 1.
Taiwan has a low crime rate and one of the lowest violent crime rates worldwide. Police actively seek out and prosecute organised criminals.[4] The Organized Crime Prevention Act 2018 includes a broad suite of offences including being a member of, financing, recruiting for or threatening a person in the name of an organised crime group. Taiwan has an effective police force, judiciary, and laws to protect against assault and illegal money lending. When this information was put to the applicant at the hearing, he had no comment in response.
[4] Taiwan Country Security Report, Overseas Security Advisory Council, US Department of State, 7 July 2023.
Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[5] There was a delay of almost four years between when the applicant first arrived in Australia and when he applied for protection. He also returned to Taiwan on two occasions. This is not indicative behaviour of someone who fears for their life and physical safety. When questioned about the delay, the applicant said he wished to use other visas as a sort of transition, to keep him in Australia. The applicant could provide no satisfactory explanation for why he would need a transition or why he never commenced studying when he was granted a student visa.
[5] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
I did not find the applicant to be a reliable witness. The inconsistencies in his evidence, lack of documentation to establish personal debt, delay in seeking protection and return trips to Taiwan, along with consideration of the independently available evidence about Taiwanese authorities led me to make an adverse finding about the credibility of the applicant’s claims. I do not accept that the applicant was threatened or physically harmed by his father, gangsters or loan sharks. I do not accept that the applicant would face a real chance or risk of serious or significant harm from his father, gangsters or loan sharks in the reasonably foreseeable future if he returned to Taiwan.
For the reasons given above, 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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sheridan Aster
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.
…