1834018 (Refugee)

Case [2022] AATA 1276

1834018 (Refugee) [2022] AATA 1276 (11 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1834018

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Jane Marquard

DATE:11 March 2022

PLACE OF DECISION:  Sydney

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

Statement made on 11 March 2022 at 9:06am

CATCHWORDS
REFUGEE – protection visa – Taiwan – fear of harm from gangsters and loan sharks – low-level gang membership and father’s and uncle’s gambling debts – harassment, threats and beatings of applicant and mother – no action by police – credibility – inconsistent and implausible claims and evidence, and no corroborative evidence – residence and work history – delay in applying for protection – applied after holding two student visas – no contact with father since parents divorced – no targeting of or harm to siblings – voluntary return to home country – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5J(1), 5H(1), 36(2)(a), (aa), 65, 420, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Acts Interpretation Act 1901 (Cth), ss 15AA, 15B
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 18B, 25

CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
Applicant A v MIEA (1997) 190 CLR 225
ARG15 v MIBP [2016] FCAFC 174
AVQ15 v MIBP [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v MIEA (unreported, FCA, 7 November 1997)
EJC18 v MICMSMA [2020] FCCA 3171
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Teoh (1995) 183 CLR 273
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMIA v QAAH of 2004 (2006) 231 CLR 1
MIMA v Rajalingam (1993) 93 FCR 220
MIEA v Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437
Selvadurai v MIEA (1994) 32 ALD 347
Sivalingam v MIMA [1998] FCA 116
Sundararaj v MIMA [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816
SZOXA v MIAC [2011] FMCA 298
SZTOO v MIBP [2015] FCCA 1631

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

BACKGROUND TO THIS APPLICATION FOR REVIEW

  1. The applicant is a [Age]-year-old man from Taiwan.

  2. He first arrived in Australia [in] June 2014 on a TZ-417 working holiday visa granted offshore. He was granted an extension to this visa on 7 February 2015.

  3. He departed Australia on [Date 1] October 2015 and returned on [Date 2] October 2015. He departed Australia again [in] June 2016. On 9 June 2016 he was granted a TU-572 student visa. He returned to Australia [in]…

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Details
AGLC
1834018 (Refugee) [2022] AATA 1276
Case
[2022] AATA 1276
Decision Date

CaseChat Overview and Summary

The applicant, who sought a protection visa, appealed a decision of the Refugee Tribunal. The dispute concerned the applicant's claims of fear of harm from gangsters and loan sharks in Taiwan, stemming from his father's gambling debts and low-level gang membership. The applicant alleged harassment, threats, and beatings directed at him and his mother, with no intervention from the police.

The court was required to determine whether the applicant had established a well-founded fear of persecution or harm in Taiwan, such that he met the criteria for a protection visa. This involved assessing the credibility of the applicant's claims, considering the evidence presented, and evaluating the relevance of country information regarding the safety situation in Taiwan. The court also had to consider the applicant's residence and work history, the delay in his application for protection after holding student visas, and the lack of harm or targeting of his siblings.

The court found the applicant's claims to be inconsistent and implausible, noting a lack of corroborative evidence. It was observed that the applicant had voluntarily returned to Taiwan previously and had no contact with his father since his parents' divorce, nor had his siblings experienced any targeting. The court applied principles of statutory interpretation, including the purpose of the Act and relevant guidelines, and considered international jurisprudence and UNHCR materials. Ultimately, the court affirmed the Tribunal's decision, finding that the applicant did not satisfy the criterion for a protection visa under section 36(2) of the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

He said that he fears that if he returns to Taiwan, he will be threatened by the gangs again and will face trauma and nightmares destroying his life.Evidence before the Tribunal The applicant appeared before the Tribunal on 24 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal provided the applicant with an overview of the processes of the Tribunal and relevant legal principles. The evidence of the applicant is referred to in the findings and partly summarised below. The applicant confirmed that he was born in Nantou County in Taiwan in [Year]. He told the Tribunal that Nantou is a small town with a number of processing factories. His father ran [a business] and his mother helped him in the business. They have now closed the business and they divorced when the applicant was in school. He does not know what his father is doing, as he has little contact with his father. He is not in contact with his father because when he was young, in about 2005 or 2006, his father had been gambling and his business failed and he borrowed off high-interest loans. He said that in around 2008 his father had to run away to Kaohsiung, which is about three or four hours away, and hide from his creditors. He was asked how he knew he was there, and he said that at that time he was in contact with him. The applicant keeps in contact with his mother, who is living alone. His brother and sister have lived and worked in [Country] since 2017 or 2018. They are holders of [visas] in [Country]. He said that prior to the pandemic his brother and sister visited his mother in Taiwan. The applicant has grandparents and maternal and paternal uncles living in other parts of Taiwan. He does not keep in touch with his relatives. He said that he lived with his mother and siblings before he came to Australia. His mother rented a house. She has now moved houses within the same small town. The applicant told the Tribunal that he finished high school in Nantou in [Year] but had no further education. After that he served in the military for one year and then he went to the Taijung, which he called ‘the big city’, to work. Taijung is about one-and-a-half hours away from Nantou. He worked as [an Occupation] for six years in different [Workplaces] until he came to Australia. He said that he decided to travel to Australia after his friend told him about working holiday visas. He said that when he lived in Taiwan, his father’s creditors looked for him. This started in 2012 and they continued to look for him until he departed for Australia. He said that he moved from one [Workplace] to another when his father’s creditors found him. He said that they ‘would come and make a scene and would interrogate me and ask me where my father was’. He said that three to five people would come to the [Workplace] and threaten him outside a shop, that they would beat him up and pressure him to pay money. They also asked where his father was. He would tell them he had no contact with his father.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to seek out evidence to support an applicant’s claim (ABT16 v Minister for Home Affairs [2019] FCA 836) or make out the case for the applicant (Prasad v MIEA (1985) 6 FCR 155). Mandatory considerations In accordance with Ministerial Direction No.84,[6] made under s 499 of the Act, the Tribunal must take account of the ‘Refugee Law Guidelines’[7] and ‘Complementary Protection Guidelines’ [8]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. While the Tribunal should have regard to policy, as there is public interest in achieving consistency, Departmental policy is not binding on the Tribunal.[9][6] Ministerial Direction No.84, Consideration of Protection Visa applications, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, 24 June 2019.[7] Policy – Refugee and humanitarian – Refugee Law Guidelines, Section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines), Department of Home Affairs.[8] Policy – Refugee and humanitarian - Complementary Protection Guidelines, Department of Home Affairs.[9] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.Principles of interpretation and rules of evidence The Tribunal must apply Australian principles of statutory interpretation and in particular, the Acts Interpretation Act 1901 (Cth) (the Interpretation Act).[10] Section 15AA of the Interpretation Act requires that regard must be had to the purpose or object of the Act, and Section 15AB permits recourse to extrinsic materials including the explanatory memorandum or second reading speech and any treaty or other international agreement referred to in the Act. Australian courts will favour a construction of the Act and Regulations which conforms to Australia’s obligations under an international treaty, or convention.[11] [10] MIMIA v QAAH of 2004 (2006) 231 CLR 1. [11] MIMIA v QAAH of 2004 (2006) 231 CLR 1; MIEA v Teoh (1995) 183 CLR 273. International jurisdiction can provide guidance,[12] as can the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (the Handbook)[13] although the Handbook is not binding.[14][12] See for example Chan v MIEA (1989) 169 CLR 379 at [392], Somaghi v MILGEA (1991) 31 FCR 100 at [117], NBGM v MIMIA (2006) 150 FCR 522.[13] UNHCR, re-issued February 2019.[14] SZOXA v MIAC [2011] FMCA 298. The Tribunal must act according to substantial justice and the merits of the case, and is not bound by technicalities, legal forms or rules of evidence,[15] although these rules are used for guidance where relevant.[15] Section 420 of the Act.EVIDENCE CONSIDERED IN THIS REVIEW