1900571 (Refugee) - [2024] AATA 3983

1900571 (Refugee) [2024] AATA 3983 (12 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1900571
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Amy Faram
DATE:12 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the Applicant a protection visa.

Statement made on 12 August 2024 at 11:12am

CATCHWORDS
REFUGEE – protection visa – Taiwan – illegal money lender – credibility concerns – inconsistent evidence – lack of corroborative evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 866.221
CASES
MIAC v SZQRB (2013) 210 FCR 505
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 December 2018 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The Applicant, a citizen of Taiwan, applied for the visa on 28 September 2018. The delegate refused to grant the visa on the basis that the harm feared was not for a refugee reason and, under the complementary protection criteria, because he would receive effective protection from the harm he feared such that he would not face a real risk of experiencing significant harm on return to Taiwan.
The Applicant appeared before the Tribunal on 7 June 2024 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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or they are a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criteria
Section 36(2)(a) (‘the refugee criterion’) 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.
Complementary protection criteria
If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
A real risk (as with a real chance, per the refugee criteria) is one that is not remote or insubstantial or a far-fetched possibility.[1]
[1] Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
‘Significant harm’ is exhaustively defined in s 36(2A). A person will suffer significant harm if they 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.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Sections 5(1) and 36(2A) and (2B) 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), to the extent that they are relevant to the decision under consideration. The Tribunal’s mandatory considerations would also ordinarily also include country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, however there is no such report on Taiwan.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal records that having reviewed the Applicant’s identity documents and heard his oral evidence, it is satisfied as to his identity as a citizen of Taiwan. For the purposes of this protection eligibility assessment Taiwan is the ‘receiving country’, and the Applicant’s protection claims are assessed with regard to circumstances in Taiwan as these relate to him.
The issue in this case is whether, on account of a debt he owes to an illegal money lender, the Applicant is a person to whom Australia has protection obligations under s 36 of the Act and cl 866.221 of Schedule 2 to the Regulations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Applicant arrived in Australia [in] October 2016 and applied for protection on 2 October 2018. The application form set out that he was born in Tapei on [date]. His parents and his older brother, born in [year], remain there. The following claims were also set out:
-His brother’s business had financial difficulties. The Applicant wanted to help him but didn’t have any money and so he borrowed money from a loan shark. His brother promised to repay him, but he did not.
-The Applicant had to take responsibility for the debt, and the creditors often harassed the family.
-They threatened that if the debt was not paid, they would kill the family, so the Applicant came to Australia to earn money to pay the loan back. Despite working hard, he hasn’t been able to pay it off because of the high interest.
-The Applicant fears he will be tortured, persecuted and killed if he cannot pay off the debts. And his family will also suffer significant harm. In Taiwan he would not be able to meet the loan repayment, and it will put his family in danger of being harmed or killed if he does not.
-He has been physically harmed by the debt collectors for having not made a payment on time, and he has received death threats. He can’t relocate as he would be quickly found. He does not think anyone could help him, and it is useless to seek help from the police, they are prone to bribery.
At the hearing of this matter, the Applicant gave evidence that he was assisted by a lawyer to make his protection visa application and to lodge the review application with the Tribunal.
The Applicant said that his family were a low-income family and that his older brother is now unable to work as he has [specified] cancer that has [spread]. His brother is now married and has one child, aged [age]. Over the past few years, the Applicant has overseen and been responsible for the family’s expenses. The Applicant has worked for around 8 years in Australia and is currently a [Occupation 1] in an [workplace] in regional Victoria.
His parents are nearing [age]. His father is not working and has not worked for decades. He is a drug user and still uses ice. His parents are still together and his mother works as a [Occupation 2] in a [workplace] in the city of Kaohsiung. She is nearing retirement.
His brother goes back and forth between home and hospital. He was diagnosed with cancer about two years ago and stopped working around 2-3 years ago. Before he stopped work, he had worked [as an Occupation 3], and prior to that he had been working as a contractor doing [jobs], making around TWD800 – 1200 a day.
The Applicant had not been in frequent contact with his family before his brother became sick, but they reached out for help which he has been providing. Currently he sends money twice, sometimes three times a month for daily expenses or for medical expenses if his brother’s condition deteriorates.
The Applicant has a partner of nearly 4 years. The Applicant gave evidence that she is also originally from Taiwan and is in Australia on a working holiday visa.
The Applicant lived in the family home before he came to Australia, aged [age] years old. It is this home that his brother, sister-in-law and child now share with his parents.
The Applicant explained that he was born in Taipei but lived his life in Kaohsiung. His parents do not have close relationship with their siblings, a number of whom have passed away or who live in the north of the country.
The Applicant gave evidence that he left school in around year [level], to work. He was [age]. The family lived in an industrial area, and he would do work [as an Occupation 3]. He also did [work] [undertaking specified tasks].
The Applicant did military service [for] 4 months. He was placed in the category of people that had good physical capabilities. After his service he worked for another year or two before coming to Australia. In that time, he did some further [work], and was trying to save money to come to Australia, and for his family. He explained that he worked as a subcontractor for one employer, and that he was not insured had he been injured.
Before coming to Australia, the Applicant saved more than AUD1000 for his family, and came to Australia with only around AUD200 – 300 for himself. He intended to work hard, and he has done that. He is a valued employee and his employer wants to sponsor his visa. He earns around AUD1500 per week after tax.
The Applicant gave evidence that he came to Australia because he had read that wages in Australia were higher than in Taiwan. At that time, in Taiwan, wages were very low. He was thinking about how to afford his family’s daily expenses, and he thought he would come to Australia to look at what the situation as like, and then he became stuck here as the main source of income for the family.
He added that at first he tried to deal with the money that he owed, but the interest was too high and so he shifted his focus to just supporting his family.
Asked for further information about the debt, the Applicant said he and his friend had borrowed TWD2-3 million, at 10% weekly interest. The Applicant’s name was the only name on the ‘long note’ or promissory note documenting the loan. The friend was a friend from junior high school. They had borrowed the money in order to renovate, open and run a [business] together, but his friend took the money and ran away.
The Applicant gave evidence that his friend already had debt, and so could not borrow more money, which was why the debt was entirely in the Applicant’s name. He does not know where his friend is anymore, and his family have disowned him, so they are no use in helping to resolve the dispute. The Applicant said after his friend stole they money, he went to his friends family home, but they just asked the Applicant to leave.
The Tribunal asked the Applicant if he went to the police, given his friend had stolen a large sum from him. He said that he did not think the police would have assisted as they would not regard it as theft. The Applicant’s was the name on the promissory note and he gave his friend the money for the renovation of the [business], and they didn’t sign any agreements.
The Tribunal asked the Applicant further questions about the nature of the loan, and he said that it had been a private loan that involved a promissory note. The Tribunal asked if he had a copy of the promissory note, and he said that it had been a long time and that he did not know where it is now.
The Applicant said the amount borrowed was TWD2.7million, and that he would have paid off only around TWD1million in interest. With reference to a currency converter, the Tribunal said that it seemed to equate to around AUD125,000 and the Applicant confirmed that that was approximately the debt, but it was actually the interest that was the problem. The Tribunal noted that that was a large sum of money, and the Applicant confirmed that to rent the store and pay for facilities and equipment etc, it had been necessary.
The Tribunal asked the Applicant about the way the loan was documented, and he said that he had signed a promissory note, using a fingerprint as a signature. It was not an official loan as that would have required collateral. This was a private loan, with someone that a friend had introduced him to, a gangster by the name of [Mr A] who lends money to people. [Mr A] did not have a shop front.
The Applicant gave evidence that he borrowed the money in around 2015. He had been working in [an industry] and felt like he wouldn’t make sufficient money doing that work, so he thought to borrow money in order to start a business and he planned the business for a long time before doing so.
Money lenders such as [Mr A] are mostly gangsters, and if they find you, they will throw paint at your home.
The Applicant said that at the moment he is not repaying the debt. He is just looking after his family. In the future, if it is necessary to pay, he will, but right now, he wants to support his family.
Asked how he repaid the debt when he was doing so, the Applicant said he would do it through a service called fast currency exchange. There is a person that has both Australian and Taiwanese bank accounts and he gives the person AUD, and they transfer money from the Taiwanese account to the person the Applicant owes money to, taking a cut in the process. This is the fastest way. He couldn’t quite remember when he last transferred money to the money lender, but it was around 1-2 years ago. He blocked their number, so they can’t contact him, and deleted their messages. His family needs the money, and he can’t keep transferring it to the money lender. He has already repaid them more than TWD1 million and he needs to prioritise his family.
The Tribunal asked the Applicant if they threatened him when he was in Taiwan and the Applicant said that they beaten him twice when he didn’t have the money. He was working but could not keep up with the weekly interest charges on the loan.
The Applicant said that they also threw paint where he lived, and wrote his name using paint, saying that he owed money but was not paying it back. This happened in 2015. They also came once to his workplace to detain him, thinking his boss might have been able to pay the money, but he could not. He told them he would rather fire the Applicant than pay the money back, it was too much money. They then beat the Applicant on his way home.
The Tribunal sought to better understand the Applicant’s evidence about having taken out the loan and he said that [the type of business] were popular at the time and he and his friend thought they could make money. He does not know why his friend did what he did.
Asked about the paint on the house, the Applicant said that it happened many times. They also sometimes threw eggs and ‘ghost money’ around. This is fake money that is printed in order to be destroyed or burned.
The Tribunal asked the Applicant if anything had happened since he had stopped paying back the debt. He said they can’t find him: at most they have been throwing paint, but then after a long time they have stopped doing that because they can’t find him. The Applicant added that wouldn’t do anything to his family: they are elderly, and wouldn’t cope if they did, and there is an understanding that it is not their responsibility.
If he went back to Taiwan now, the Applicant thought that it would be even worse for him if they caught him. His family still needs his support; and he doesn’t have any money with which to pay the debt. The Applicant confirmed that he does not have concerns about returning to Taiwan aside from his concerns about the money lender and about being able to support his family.
Asked if he went to hospital or the police after being beaten, the Applicant said the money lender would simply be granted bail and when they came out, it would have been even worse for the Applicant than before he had complained to the police.
The Tribunal discussed country information with the Applicant including that there is a low crime rate, extensive CCTV which helps with security and reports that police are effective. The Applicant said that if the police arrest gangsters and they are granted bail, then the person that complained would be in even more trouble. He did not think the CCTV would discourage crime, as even in the public transport system there are knife attacks.
The Tribunal mentioned that there have been reports of crackdowns on gangs and loan sharks. The Applicant thought that media such as that was arranged by politicians seeking re-election and that many criminals are also underage. He did not think that all the loan sharks could be arrested, and that if one was, the others would come for the person so the situation would not change.
The Tribunal discussed with the Applicant the timing of his protection visa application. He said that when his second visa was to expire, he thought about applying for a student visa, but that would have been too restrictive for work – both in terms of how many days of the week he could work and the type of work he could get as not everywhere hired people that held student visas. Someone told him he could apply for a protection visa.
The Tribunal raised with the Applicant that it had some credibility concerns with respect to his evidence including on account of the fact that there were significant differences between his initial application and what he had told the Tribunal. In particular, the claims made in his application related to his brother having had financial difficulties. The Applicant said that that had been a long time ago, and that the main issue was the money the Applicant had borrowed afterwards. His brother had been persecuted, but not as badly as the Applicant had.

The Tribunal raised with the Applicant that the initial claims had been that the Applicant had borrowed money to help his brother, who had said he would pay him back, but had not and had instead left the Applicant with the loan to pay. The Applicant explained that his brother had previously been the head of some subcontractors and had had a few people working under him. He accepted a job but didn’t have enough money to pay the wages. He had needed to borrow a small amount. The amount the Applicant had had to borrow had been much bigger.
Asked if the smaller debt still needed to be paid off, the Applicant said that it did not. The Tribunal asked the Applicant why he did not put down the claim with respect to his friend and the debt he stole in the protection visa application form. The Applicant said that he put down his brother’s information and had not thought that he needed to put the other information down.
The Tribunal raised with the Applicant that he had initially said that they would kill his family if the debt was not paid. The Applicant responded that if they really could not find him, then it was possible. He has not been back for many years. He is not very concerned about his parents, but he is very concerned about the child of his older brother, and his sister-in-law – believing that for them it might be riskier.
The Tribunal asked the Applicant when his brother was married. He thought it was a few years ago. He said that he was concerned they would turn his sister-in-law into a prostitute to make money and pay off the debt. He is worried about this and had hoped that he would have more time to raise money. The Tribunal raised with the Applicant that his brother’s wife and their child were not around when the debt was taken out. He said that they would still be seen as valuable to the loan sharks.
The Tribunal raised with the Applicant that the protection visa form had mentioned that he had worked as a [Occupation 4] from 2013 to 2016, which was not consistent with his earlier evidence. The Applicant said that this referred to his work as a [Occupation 5]. Asked why there were differences between he form and the information discussed at hearing, the Applicant said that he had used translation software to prepare his application.
Asked if his lawyer had helped him, the Applicant said that the lawyer had asked him to prepare the application on his own. The Applicant said that he paid the lawyer a few hundred dollars for his assistance. The lawyer had told him he had work rights and was not allowed to go overseas.
The Applicant confirmed that the brother loan was not the issue: the issue was the loan for the [business]. Asked why, given that, the [business] information had not been included in the application form, the Applicant said that the translation provided by the software was not good and had modified the information he had inputted, noting there are many different ways to translate something.
The Tribunal reiterated to the Applicant that it would give his evidence close consideration but that it might decide it was significant that the circumstances of the loan and some of the related incidents had not been included in his protection application when it was made.
The Applicant asked the Tribunal what further evidence he should provide and said that his lawyer could send the information in. He confirmed that he now had a new lawyer. He added that he needed some more time to sort things out, including the chemotherapy his brother needs. If he was in Taiwan, he could not afford the chemotherapy for his brother: his brother must pay out of pocket because he owes the bank money and can’t use public health insurance.
The Applicant said that he could provide the Tribunal with copies of his brother’s health documents, and with evidence that his mother does not earn much money. The Tribunal indicated that he could do that if he wished, adding that it was prepared to accept his evidence with respect to his brother’s poor health and his family’s financial position.
The Tribunal explained to the Applicant that as it understood his claims, the main issue before the Tribunal was not whether his family needs his support and are they experiencing financial hardship, but does the loan exist and, if it does, does its existence pose a real risk to him. The Tribunal gave the Applicant further time, until 28 June 2024, to provide the Tribunal with information relevant to his claims. No further information has been provided by the Applicant.
FINDING AND REASONS
Credibility of the Applicant’s claim and findings of fact
The Tribunal accepts that the Applicant carries a significant financial and emotional burden in providing support to his family members in Taiwan and that he is concerned for the health and well-being of his older brother and his other family members, including parents, his sister-in-law and his brother’s child.
The Tribunal accepts, also, that the Applicant is a valued employee of his Australian employer.
The Applicant’s claims as initially made spoke to a debt taken out by him on behalf of his brother. The Applicant gave oral evidence that there had been such a debt, and that it had been repaid. The Tribunal finds that there are no outstanding loan shark debts connected to the Applicant’s brother.
The Applicant also claimed that he had taken out a large debt with an illegal money lender for the purposes of opening a [business], that that money had been stolen by his business partner, and that the Applicant and his family had subsequently been targeted for harm by the illegal money lender and/or his associates when the Applicant did not repay the debt. The Tribunal finds that these claims are not credible. The Tribunal has made this assessment upon reviewing the Applicant's evidence in its totality including the Tribunal's concerns with his evidence as detailed below.
The Act places certain obligations on applicants to provide sufficient evidence to establish their claims (section 5AAA) and it is established that, while an inquisitorial process, it is for an applicant to make their case.[2] The fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that the statutory elements are made out and a decision-maker is not required to make the applicant's case for them.
[2] SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 at [57];
The Tribunal is not satisfied, on the evidence before it, that the Applicant has a well-founded fear of persecution by reason of him personally having an outstanding debt with an illegal money lender in Taiwan. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
In making these findings the Tribunal has had regard to relevant judicial authority on the issue of findings on credibility in this context,⁵⁰ the Migration and Refugee Division's Guidelines on the Assessment of Credibility,⁵¹as well as the principles that a person must generally be found to be a credible witness unless there is logically probative evidence to support a finding otherwise and that it is not reasonable to disbelieve a particular applicant solely due to minor inconsistency in evidence.
The Tribunal has identified the following issues that it has had regard to in finding that the Applicant's evidence to fear harm in Taiwan is not credible.
First, and as set out above, the Applicant’s claims at hearing were markedly different from those included in his protection visa application form. In his application, the Applicant claimed that his brother’s business had had financial difficulties and that he, the Applicant, had borrowed money to assist his brother. His brother had said he would pay the Applicant back but had not done so. The loan shark regarded the Applicant as responsible for the debt, and the creditors often harassed the family. He was physically harmed for not making a payment on time and has received death threats. They would kill the family if the debt was not paid, so the Applicant came to Australia to earn more money to be able to pay it back.
In contrast, at hearing, the Applicant claimed that he had taken out a loan on behalf of himself and a friend to set up a [business]. The loan was for a significant sum of money, in excess of the equivalent of AUD$100,000, and had only been in taken out in the Applicant’s name as his friend and business partner could not get credit. The Applicant gave the money to his friend so that he could organise renovations for their [business]. His friend disappeared with the money. The Applicant was twice physically assaulted when he could not keep on top of debt repayments. Payment was also demanded from his boss, and the family home was targeted with paint many times. It was because of this debt and these experiences that he came to Australia to earn more money to repay it. The Tribunal is concerned that the Applicant did not include information about the debt that was outstanding and of concern to him when he made his protection visa application.
Second, the Applicant’s evidence about why he had not done so was inconsistent. When first asked about why he had not put the details about the [business] debt and his friend’s theft in his protection application, the Applicant said he had put his brother’s information down and did not appreciate it was necessary to include the other stuff. He later said that he had intended to include this information, but that the translation software he had used to help him to draft his application was not good and had changed the information.
The Tribunal appreciates that many Applicants, including possibly this Applicant, are poorly assisted by agents or representatives. The Tribunal accepts, also, that the Applicant has limited English and in lieu of adequate representation may have been forced to rely on translation software to complete his application form. Even so, the Tribunal finds it difficult to accept that had the core events that prompted his travel to Australia occurred - that the Applicant took out a sizeable loan for his own new business, was robbed by his friend and business partner and was for this reason subsequently targeted by the money lender because he could not pay this debt back - these details would have been omitted from his protection visa application.
Third, the Tribunal is troubled by the lack of coherence with respect to the Applicant’s evidence about his and his family’s experiences at the hands of the money lender. The Applicant claimed that his family, and the family home had previously been targeted by money lenders when the Applicant had not made repayments. If, as the Applicant claimed he did, he had stopped paying the money lender, the Tribunal considers that significant pressure would have again been bought to bear on the Applicant through the targeting of his family.
The Applicant’s evidence, however, was that beyond possibly throwing paint this had not happened and, more significantly, that his family would not be targeted because they would not be regarded as responsible for the debt because the debt was not theirs. Further, the Applicant added, they would not be targeted because his parents were now elderly. Conversely, and when directed to his previous evidence, the Applicant said he thought it was possible they would kill them, if they could not find him. He added that he was not very worried about his parents, and that he mostly feared that his sister-in-law and his nephew would be targeted. This was even though they had not been part of the family at the time the debt was taken out and even though they had not been targeted.
While reluctant to draw an adverse inference based in part on an Applicant’s suppositions about what a criminal actor might be expected to do, in the circumstances of this matter the Tribunal considers that the Applicant’s evidence of his family’s experiences once he stopped paying the debt does not support the conclusion, and is not consistent with his claim, that there is an outstanding sizeable debt in respect of which he, his family and his family home have been previously targeted when he failed to make a repayment.
Fourth, the Tribunal considers that aspects of the Applicant’s evidence are difficult to reconcile with his claims to fear harm from the money lenders. Having lodged a protection visa application in respect of harm from the illegal money lender in 2018, the Tribunal considers it unlikely he would have subsequently deleted messages from the lender that might have evidenced his claims. The Tribunal also finds it difficult to accept that the Applicant would not have reported his business partner to the police for such a substantial theft. The Applicant gave evidence that he did not think the police would be interested in the matter as it was his name on the promissory note and he had given his friend and business partner the money for the purposes of renovating the space and they did not have a written agreement between themselves. The Tribunal considers that notwithstanding any such concerns, had such a sizeable amount of money been taken by his friend, particularly in circumstances where the claimed risks of non-repayment were so high for the Applicant, the Applicant would have attempted to engage the police in efforts to recover the money and/or to locate his childhood friend.
In addition to these above concerns, the Applicant did not provide any corroborative evidence of his claims, such as a copy of the promissory note documenting the debt, or any evidence about his friend and the business he had spent a long time planning, or about his friend having stolen the money, or about payments made to the money lender in Taiwan and/or from Australia, or about damage to his home that was attacked with paint many times. When asked about a copy of the promissory note, the Applicant said that it had been a long time, and that he did not know where it was.
At the conclusion of the hearing, the Applicant indicated he would be consulting his new lawyer about providing evidence to the Tribunal. In particular, he was going to see if he could obtain from his family a copy the promissory note documenting the debt. As noted above, no information has been received by the Tribunal.
The Tribunal considers that had the events claimed occurred, the Applicant would have been in a position to provide corroborative evidence with respect to at least an aspect of his claim. The Tribunal makes this observation understanding that there are often very good reasons why information from someone’s home country cannot be obtained, safely or at all, and that a Tribunal must be cautious not to expect from another country and culture the same sorts of materials that Australian systems would generate. Taiwan, however, is a modern and stable country and the Applicant remains in contact with his family, who remain living in his family home. Given the Tribunal’s other concerns, the absence of further information that might have documented the Applicant’s claims reinforces the Tribunal’s view that it is unable to find the [business]/loan shark claim credible.
Having considered the entirety of the Applicant’s evidence and in light of the above concerns, the Tribunal finds that the Applicant’s claim to owe money to a loan shark in Taiwan lacks credibility. On the evidence before it, the Tribunal does not accept that the Applicant borrowed money from a loan shark or illegal money lender. It follows that the Tribunal does not accept that the Applicant or his family were threatened by the loan shark.
The Tribunal finds that the family remain living in Kaohsiung in the family home and that they are presently financially supported by the Applicant and his mother. The Tribunal finds that the Applicant would return to Kaohsiung and would again find employment there such that he could support himself and contribute to his family’s financial needs, though less generously than he is currently able.
Protection findings
Refugee criteria - Harm from money lender and associates
As set out above, the Applicant gave evidence that there was no outstanding illegal money lender loan with respect to his brother. The Tribunal thus finds that there is no real chance in the reasonably foreseeable future that the Applicant will experience serious harm from an illegal money lender on the basis of a loan taken out by or for the Applicant’s brother.
Having also determined above that there is no loan in the Applicant’s name with an illegal money lender in Taiwan, the Tribunal does not accept there to be a real chance that the loan shark, or any person or money lender would seek to harm the Applicant for reasons of the claimed loan if he returns to Taiwan, now or in the reasonably foreseeable future. The Tribunal is not satisfied, on the evidence before it, that the Applicant has a well-founded fear of persecution in Taiwan.
For the reasons given, 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 criteria - Harm from money lender and associates
Section 36(2)(aa) of the complementary protection provisions refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. That reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[3]
[3] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].
As set out, the Tribunal does not accept that there is a real chance the Applicant will be experience serious harm in Taiwan at the hands of illegal money lenders or their associates. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Taiwan, there is a real risk that he will suffer significant harm at the hands of illegal money lenders in Taiwan.
The Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSION
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).
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).
The Applicant gave evidence that his girlfriend holds a temporary working holiday visa to remain in Australia. There is no evidence before the Tribunal to suggest 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.
Amy Faram
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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