1818728 (Refugee)

1818728 (Refugee) [2023] AATA 4640 (6 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1818728
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Paul Windsor
DATE:6 December 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 December 2023 at 2:53 pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – fear of harm from loan sharks and gangsters – borrowed money on behalf of husband for his business – physical and mental abuse and threats – husband’s later travel and own protection application in progress – vague, inconsistent and unconvincing claims and evidence – money needed for parents’ medical treatment – no details or documentation of loan – born in third country and current conditions there – country information – low crime rate and effective law enforcement – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 26 June 2018 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Taiwan, applied for the visa on 29 March 2018.
In her Protection visa application the applicant stated she was born on [Date] in [Country]. She did not indicate her ethnicity or religion but stated she would require a Mandarin interpreter. She indicated she was married [in] 2016. The applicant stated she departed Taiwan legally on a Republic Of China passport and entered Australia on a Visitor visa, but did not provide relevant dates (the delegate’s decision record indicates she last arrived in Australia [in] January 2018, entering on an Electronic Travel Authority (subclass 601) visa. The applicant indicated that previously she was in Australia from [September] 2012 until [August] 2013, on a Working Holiday visa.[1]
[1] See the Departmental file.
In her application the applicant stated she left Taiwan and came to Australia because she feared she would be harmed because she borrowed money from loan sharks, on behalf of her husband, which she could not repay.[2]
[2] Ibid.
The delegate refused to grant the visa, finding in relation to the refugee criterion that the fear of harm was not for any of the reasons mentioned in s 5J(1)(a) of the Act. In relation to the complementary protection criterion, the delegate, after considering relevant country information, found the applicant could obtain from the Taiwanese authorities protection such that there would not be a real risk she would suffer significant harm.
The applicant sought review of this decision on 27 June 2018. She provided the Tribunal with a copy of the delegate’s decision record.
The applicant appeared before the Tribunal on 29 November 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
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, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), 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.[3]
CONSIDERATION OF CLAIMS AND EVIDENCE
[3] Note that there is no DFAT Country Information Report for Taiwan.
Claims
The applicant’s claims from her protection visa application are summarised as follows:
·She left Taiwan and came to Australia to protect herself from being harmed by loan sharks and their related gangsters.
·Her husband asked her to borrow money for his needs. He said he was in fear for his safety and needed substantial money. He promised her he would have the money to return along with the interest if she could get money for a short term regardless of the interest rate. She had no option but to seek loans from loan sharks. Her husband ultimately failed to return the loan and its interest. She had no ability to repay the money so fled to Australia as she had been to Australia before and knew she could get help here.
·The loan sharks abused her physically and mentally and made threats to her life.
·She did not go to the police because the loan sharks could take extreme action against her in Taiwan if she did.
·She did not try to move to another part of Taiwan because the loan sharks imposed more harm on her when she was recaptured after hiding. She was warned by the gangsters and feared for her life. There is no place in Taiwan where she would be safe.
·She fears if she returns to Taiwan the loan sharks and related gangsters will harm her badly, including by selling her to a brothel and forcing her to do prostitution.
·She does not consider the authorities in Taiwan could protect her as they have very low credibility in helping and protecting the people.
Evidence from the hearing
At the start of the hearing the applicant indicated that everything in her application was true and correct as far as she knew and believed. She indicated that she did not have any assistance in completing the application. When asked if there were any mistakes she wished to correct, she indicated there were not. When asked if there was anything she wished to add, she said she wished to add that she was born in [Country]. The Tribunal commented that she had included that in her application and had indicated she did her schooling in [Country] and then came to Taiwan to go to university. She acknowledged that was correct.
The applicant indicated that her husband came to Australia in November 2018. She said he also applied for protection, in around January 2019, and she thought his application was still before the Department. She stated she did not have any other family members in Australia. The applicant indicated she and her husband are living in [City]. She said she is [doing Job task 1] while her husband works for a company that manufactures [Products].
The applicant indicated she has no family members in Taiwan.
The applicant said she worked for [a] company in Taiwan, both in the [part of workplace] and also [doing Job task 2]. She indicated her husband, who she said did not have good Mandarin language skills (he, like her, was born in [Country]) worked in factories assembling things. She said he earned New Taiwan dollars (NTD) 25,000 per month. When queried that this seems like quite a good salary, she said this was very low by Taiwanese standards. When asked, she said she earned NTD 28,000 per month.
When asked why her husband needed money (as she had indicated in her application), the applicant said they wanted to run a [business]. When asked if they ever opened a [business], she indicated they did not, commenting that their parents in [Country] needed urgent medical treatment. The applicant said her mother and her husband’s father, who both subsequently passed away, needed heart surgery. She said her mother required heart surgery in December 2019 to save her life after she was hospitalised for breathlessness. The Tribunal queried her that this was after she came to Australia. She said it was.
The applicant said her husband’s father also required open heart surgery, in 2018. When asked if she had any medical records in relation to this treatment she said she did not, commenting it has been a long time and she did not think she would need to use these documents so did not keep them. When asked, she said she and her husband paid for the operations. She said it cost the equivalent of NTD 500,000 for each surgery (the equivalent of approximately AUD 25,000 for each surgery at the current exchange rate). When queried whether she thought it might have been important to keep some documentary evidence given the cost of the procedures, the applicant said they transferred the money privately through people they knew and therefore did not have any bank statements.
The Tribunal also queried the applicant that it seems strange she has no documentation for her mother as the surgery was after she came to Australia (in January 2018) and applied for protection (on March 2018). The applicant apologised and said she had not been clear in her previous comments and her mother actually passed away in December 2019, while the operation was in 2017.
The Tribunal observed that in her protection visa application she made no mention of her mother and her husband’s father being ill but indicated that her husband asked her to borrow money temporarily for ‘his needs’, and that he told her ‘he was in fear for his safety and needed substantial money’. The Tribunal asked why he would have said that that if they both needed money for their parents’ medical treatment and why she did not state in the application that she and her husband needed money for their parents to have heart surgery. The applicant said when she made the application she did not realise that she needed to include more detailed information. The Tribunal observed that the issue is not about a lack of detail but rather that it is a completely different story. She reiterated that she did not realise she needed to provide the whole detailed story in the application.
The Tribunal observed that she also stated in her application that her husband promised her he would return the money together with the interest if she could get it for a short term purpose regardless of its interest rate. The Tribunal queried why he would have said that to her if they were borrowing the money together to fund medical treatment for their parents. The applicant said at that time she did not know the situation and just wanted to get protection from the Australian government. The Tribunal asked why, if she wanted protection, she did not put the correct story about her circumstances in her protection visa application. She replied indicating that was a mistake she made because she didn’t think a lot about it.
The Tribunal commented that it is not sure what her real claim is, and asked the applicant to tell it why she is seeking protection if the story in her application is not the real story. The applicant commented that when she made the application she did not know what a protection visa was and her Chinese also was not good so she did not write down all the details of everything. The Tribunal observed that she had not indicated this was the case when she was asked at the start of the hearing if what was in her application was all true and correct and if there was anything she wished to correct or add. She replied that she did not fully understand what the Tribunal was saying at that time.
The Tribunal asked the applicant to tell it why she came to Australia and what she fears if she had to return to Taiwan. The applicant said she and her husband borrowed money from loan sharks because they wanted to open a [business] but because their parents were sick during that time they needed to transfer that money to their parents. She said, because they couldn’t repay the money, they were threatened and harmed by the loan sharks and lived in torment every day.
When queried that she is saying they borrowed NTD 1 million to start a [business], the applicant said they borrowed NTD 1.5 million. When asked, she said it was in mid-2017 and the loan was from a loan shark. When asked, she indicated they did not put up any collateral to obtain the loan.
The Tribunal queried why a loan shark would have loaned them NTD 1.5 million, given it did not seem the loan shark could have been satisfied that she and her husband could possibly meet the interest payments on a loan of that size. The applicant commented that, if a person wants to borrow money from a loan shark, the loan shark definitely will give them the money, and they will charge a high interest rate if the person cannot pay in time. She added they were thinking that if they opened the [business] they could repay the money after six months, but the unexpected happened when their parents got sick.
The Tribunal asked what the interest rate on the loan was. The applicant commented it has been a long time, they had never borrowed from a loan shark before and they didn’t know or understand much. She added she knows that if they repaid the money after six months the interest would not have been very high but if they could not repay after that time the interest would be very, very high. She said she did not know the exact figure they would have to repay. The Tribunal commented that it finds it strange and hard to understand that they would have borrowed NTD 1.5 million without knowing what the interest rate was. The applicant commented that the loan shark told them the money they needed to repay was already more than NTD 2.5 million. When asked, she said this was after 6 months when the loan sharks ‘notified’ them.
The applicant said they did not ever make any repayments. She said she offered to make a payment of NTD 100,000 but the loan sharks did not agree but wanted them to pay the NTD 2.5 million in full.
The Tribunal observed that, if they did not know the precise interest rate, it might be expected they would know what they had to pay each month, which would provide a guide to what the interest rate was. The Tribunal asked whether, when the loan sharks agreed to loan them NTD 1.5 million, they indicated what she had to pay each month to cover the interest plus any payment to reduce the principal of the loan. She replied that the terms were very complicated and their Chinese language was not good, so they only knew that they borrowed NTD 1.5 million and then, after half a year, they would repay the loan and if they could not repay the loan then the amount owed would increase to 2.5 million. She added that they did not know how they could get that amount of money to repay the loan.
The Tribunal observed that this amounted to an interest rate of 67% over six months. Noting that she had indicated her and her husband earned a combined NTD 53,000 per month, the Tribunal asked how they thought they could ever pay off such a loan, let alone within 6 months. The applicant commented that she thinks they were scammed and did not understand the loan terms.
The Tribunal asked the applicant if she or her husband had ever had any experience running a business like a [business]. She indicated they had not, but commented that her father ran a [store] in [Country] and she sometimes helped him to look after the store. The Tribunal asked why they thought they could open a new business from scratch in Taiwan, a more expensive economy that [Country], and after six months have made enough money to repay NTD 2.5 million. The applicant again commented that they were scammed by the loan sharks. She added that she thought they could run the business and repay the money gradually. She commented that they were young at the time and did not think a lot but were passionate to do something.
The Tribunal observed that loan sharks are business people who want to make rather than lose money. The Tribunal asked the applicant why a loan shark would have loaned them NTD 1.5 million, without any collateral, commenting that they would need to have felt comfortable that they could get their NTD 1.5 million back. The Tribunal suggested that a loan shark would have wanted them to put up some collateral, such as property, to ensure the loan sharks did not lose their money. The applicant replied that loan sharks in Taiwan are very bad and she des not know why they loaned money to her and her husband in such circumstances, as they had nothing. She said they thought it was okay when they got the money because they were in their [age range], did not think about it a lot about and just wanted to try to have a career in business. She added that the loan shark only asked them if they had normal jobs
The Tribunal asked the applicant if she had any documentation regarding the claimed loan. She indicated she was given a document but in 2018 her house in [City] was burgled and the loan receipt with her signature on it was in her bag which was stolen.
The Tribunal asked the applicant what happened when they failed to make any repayments. She said the loan sharks came to their house every day demanding money and threatened them. She added that one day they hit her husband with a broom. She said this went on for around two months from the end of 2017 until she came to Australia ([in] January 2018). The Tribunal asked the applicant what sort of threats were made. She said she didn’t know if it was a feeling or real but she felt they were being followed. She added that one day when she was on the road the loan sharks tried to hit her with a car. The Tribunal queried why the loan sharks would follow them if they knew where she lived and were coming to their home every day. She responded that, if they were not home, the loan shark’s people would follow them and harass them.

The applicant said they moved house but the loan sharks knew they did that and still came to threaten them, saying if they did not repay the money their lives would be in danger. She added that they were told if they moved house again more harm would be done to them.
The Tribunal queried why, given the nature of the claimed threats, she came to Australia in January 2018 but her husband remained behind in Taiwan for another 10-11 months until November 2018, facing this danger. She replied that it was his decision to do that, adding that if they had tried to leave for Australia together it would have been easier for the loan sharks to notice and they might not have been able to leave at all.
The Tribunal queried the applicant regarding whether her leaving might have put her husband’s life in danger when the loan sharks noticed she had gone and asked him where she was. She agreed he faced a greater risk, adding that he was tormented mentally. The Tribunal asked how he avoided being harmed by the loan sharks over the ensuing period. She said he moved around a lot, from one place to another, and it was easier for him to do that by himself.
The Tribunal asked the applicant if they ever reported to the police that they had been subjected to death threats and she had a car driven at her. The applicant commented that when they first tried to make a report, the loan sharks threatened them. She said the loan sharks followed them all the time in case they tried to go to the police. She added that they also had no evidence to go to the police with. The Tribunal commented that it is unclear whether she is saying they tried to go to the police or not. She said they did not try to report to the police, commenting that it is very common for people in Taiwan to borrow from loan sharks. She added that others say it is useless to go to the police because there is no evidence and the police think this is a problem that those who borrow from loan sharks have to face themselves.
The Tribunal queried the applicant that she had said previously she had a receipt, which would be evidence that she borrowed NTD 1.5 million, plus she had indicated that they received death threats and that a car had been driven at her, which seem like matters where the police might assist them. The applicant commented that they did not know the police could assist and were being threatened all the time. She said they were fearful and did not dare go to the police because they were threatened more harm would be done to them if they did, plus others told them the police will not deal with these matters because they chose to borrow the money from loan sharks.
In response, the Tribunal shared with the applicant the gist of the following country information relevant to the availability of effective protection in relation to the actions of loan sharks in Taiwan:
·Taiwan has a low crime rate (1.3 per cent) and one of the lowest violent crime rates in the world (0.01 per cent). Operating within a low-crime environment, the Taiwanese National Police Administration (NPA) 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 promote the welfare of its citizens. There is extensive CCTV coverage throughout Taiwan, which plays a significant role in deterring criminal activity.[4]
·In 2016, an independent survey showed rising levels of confidence in citizen satisfaction with the police, reaching over 73% in that year.[5]
·The NPA conducts operations against criminal gangs involved in loan sharking and other associated activities. Violations of domestic financial rules, such as loan sharking operations or underground economic activity, totalled 947 cases (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). Police arrested 1,863 suspects for financial rule violations during this period.[6]
·The NPA’s Criminal Investigation Bureau (CIB) has an Anti-Organized Crime Division which is in charge of the implementation of a number of dedicated operations targeting organized gangs and criminal syndicates.[7]
·The Organized Crime Prevention Act has been instrumental in combatting organized crime.[8]
·Various press report indicate that action is taken by the Taiwanese authorities to address loan sharking and the use of gangs to recover money, including the arrest of corrupt police suspected of colluding with loan sharks.[9]
·The judiciary in Taiwan is independent, with court rulings generally free from political or other undue interference.[10] The judicial system provides ample opportunities to seek redress for rights violations, with court trials following due process.[11] Judicial corruption is not endemic. Nonetheless, throughout her presidential campaign President Tsai has highlighted judicial reform as one of the core policy goals of her administration in order to address popular mistrust in the country’s court system.[12]
·In their 2019 Corruption Perceptions Index (CPI), Transparency International ranked Taiwan 28^th out of 180 countries and territories (in the top 17 per cent of most clean countries and territories). The CPI scores the 180 countries and territories by their perceived levels of public sector corruption, according to experts and businesspeople. Taiwan achieved a score of 65 where 0 is highly corrupt and 100 is very clean (the highest score achieved was 87/100 and the lowest was 9/100, while the average score was 43/100).[13]
[4] ‘Taiwan 2018 Crime and Safety Report’, Overseas Security Advisory Council (OSAC), US Department of State, 2 July 2018, CIS7B839419268.
[5] ‘Statistics shows satisfaction with police reached all-time high 73.3%’, National Police Agency, Ministry of Interior, 23 September 2016
[6] ‘IPR violations make up majority of economic crimes in Taiwan’, Focus Taiwan, 22 October 2016, ‘[Criminal Investigation Bureau.] Anti-Organized Crime Affairs’, Criminal Investigation Bureau, 25 May 2015, CISEC96CF14279
[8] ‘Is Taiwan’s Organized Crime Receding or Going Deeper Underground?’, Taiwan Business Topics, 24 May 2016, ‘Taiwan police suspected of abetting loan shark’, Asiaone news, 26 May 2015, ‘Freedom in the World 2018 – Taiwan’, Freedom House, January 2018, p.4, F. Rule of Law, NGED867A615

[11] ‘BTI 2018 Country Report – Taiwan’, Bertelsmann Stiftung, 23 March 2018

[12] Ibid

[13] Transparency International, Corruption Perceptions Index, 2019, >

The Tribunal commented that the country information suggests the Taiwan authorities are providing effective protection for people at risk of harm from loan sharks and associated gangs, as there are appropriate criminal laws addressing loan sharking; there is a reasonably effective police force and an impartial judicial system.

The applicant commented that they did not know this because it was the first time they had ever borrowed from a loan shark and they were in fear because they were threatened not to report the matter to the police.

The Tribunal asked the applicant what she fears if she had to return to Taiwan now. She said she cannot go to [Country] because there is a war there and fears if she returns to Taiwan she will be harmed by the loan sharks and their lives would be in danger.

The Tribunal observed that the applicant had stated at question 77 of the application form that she feared if she returned to Taiwan the loan sharks and related gangsters would do anything to harm her including selling her into a brothel and forcing her to do prostitution, but had not mentioned that in her oral evidence to the Tribunal. The applicant said she did not mention it because she does not dare to return to Taiwan.

Findings and reasons

Identity

On the basis of the copy of her Taiwanese passport submitted to the Department,[14] the Tribunal accepts that the applicant is a national of Taiwan and that her identity is as claimed. The Tribunal accepts that Taiwan is her ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

Issues

[14] See the Departmental file.

The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Taiwan, there is a real risk she will suffer significant harm.

For the following reasons the Tribunal has concluded that the decision under review should be affirmed.

Credibility

The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

Assessment of claims

Background

The Tribunal accepts that the applicant is a [Age] year old woman who was born in [Country] and subsequently acquired Taiwanese citizenship after going to Taiwan to undertake tertiary study there. The Tribunal accepts that she is married to a Taiwanese national who was also born in [Country]. The Tribunal accepts that her husband is currently residing in Australia, having travelled here some 10-11 months after the applicant.

Claim to have borrowed money from a loan shark.

The Tribunal found the applicant’s evidence in relation to her claim to have borrowed money from a loan shark which she could not repay to be vague, unsupported by any documentary evidence, inconsistent and generally unconvincing. For the following reasons, considered cumulatively, the Tribunal does not accept that the applicant ever borrowed money from a loan shark which she could not repay.

Firstly, the applicant’s oral evidence at the hearing regarding why she borrowed money was significantly and materially different to what was set out in in her protection visa application. Her written claims indicated she borrowed money, at her husband’s request, for his needs, indicating that he was in fear for his safety and needed substantial money. She stated that her husband promised her he would return the money to her, with the necessary interest, but ultimately failed to do so. The applicant made no mention in her application of them having borrowed money together so they could start a [business]. She made no mention of her mother and her husband’s father becoming ill and requiring heart surgeries being the reason why the claimed loan could not be repaid. The Tribunal considers these differences are not matters of detail, as suggested by the applicant at hearing, but represent an entirely different account.

Second, the applicant’s oral evidence regarding the claimed loan was vague and unconvincing. She could not outline the basic terms of the loan, such as the interest rate and the quantum of expected repayments. She suggested that the arrangement was that they would repay the loan in full with a low amount of interest within or six months after it was issued but could not provide a convincing account of how they could possibly have done this, given they had no assets, had been earning modest wages, and were planning to start a [business] from scratch. The applicant also later contradicted this suggestion, commenting that they had hoped to run the business and repay the money gradually but were naïve, did not understand the loan terms and were scammed. The Tribunal also found this later explanation unconvincing.

Third, the applicant could not provide a convincing explanation regarding why a loan shark would have loaned her and her husband NTD 1.5 million, without any collateral, when it was clear from their financial background that there was no prospect they could ever repay that amount and whatever interest payments would be incurred.

Fourth, the applicant has not provided any documentary evidence in support of her claims, including medical records for her mother’s claimed treatment and her husband’s father’s claimed treatment, or any documentation in relation to the claimed loan. The Tribunal found her oral evidence that large sums of money were transferred from Taiwan to [Country] without any paper trail, to pay for the claimed medical treatment, to be improbable. The Tribunal also found improbable her oral evidence that a receipt for the claimed loan was in her handbag which was stolen when her home in [City] was burgled after she came to Australia.

Fifth, the applicant’s oral evidence regarding being harassed by the loan shark’s people was vague and inconsistent. She said they came to her home every day demanding money and threatening her and her husband. When asked about the nature of the threats, however, she commented that she did not know if it was a ‘feeling’ or ‘real’ but she felt they were being followed. She then said one day when she was out the loan shark people tried to hit her with a car (something not mentioned in her application). In her application she stated that she feared the loan sharks and their related gangsters would sell her to a brothel and force into prostitution, but she did not mention this at hearing.

Finally, the Tribunal considers the applicant did not provide a convincing explanation for why her husband remained in Taiwan for so long after she departed in January 2018 if they had made no arrangements to repay any of the claimed loan and interest owing, their movements were being closely monitored, and they had been threatened with serious harm or death if they did not repay the money in full. Given the applicant’s comments about them being followed and having been warned about moving house, the Tribunal found improbable the applicant’s suggestion that her husband was able to avoid the loan sharks and their gangster associates, for many months after she departed Taiwan, by moving around a lot and hiding in different places. It would seem more logical, if her husband had indeed wanted her to depart first to ensure she could get away safely as she claimed at hearing, for him to have joined her in Australia as soon as possible after he knew this objective had been achieved.

Accordingly, the Tribunal finds that the applicant and her husband never borrowed money from a loan shark which they could not repay. The Tribunal finds, therefore, that the applicant was never harassed, abused mentally and physically, or threatened by loan sharks and their gangster associates. The Tribunal does not accept that the applicant moved house to avoid the loan sharks and their gangster associates and was threatened with more harm when she was ‘recaptured’.

Refugee criterion

Given the findings of fact above, the Tribunal finds there is not a real chance that the applicant will face treatment amounting to persecution involving serious harm, from loan sharks and/or their gangster associates, or any other authority, organisation, person or group, for one or more of the five reasons mentioned in s.5J(1)(a) of the Act, should she return to Taiwan now or in the reasonably foreseeable future.

As the Tribunal finds that there is not a real chance that the applicant will face treatment amounting to persecution involving serious harm, from loan sharks and/or their gangster associates, the Tribunal finds that the applicant does not require the protection of the Taiwanese authorities.

Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection criterion

Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Taiwan, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[15]

[15] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

Significant harm is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Taiwan, there is a real risk that the applicant would suffer significant harm as set out in s.36(2A) from loan sharks and/or their gangster associates, or any other authority, organisation, person or group.

Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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.
Paul Windsor
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.
…

‘142 suspects arrested ahead of presidential, legislative elections in Taiwan’, Asiaone news, 20 December 2015, gang members arrested’, Taipei Times, 7 January 2016, Taipei gang busted’, Taiwan Criminal Investigation Bureau, 19 August 2016, CIS38A80123711

[2023] AATA 4640

6 December 2023

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