1903566 (Refugee)

1903566 (Refugee) [2020] AATA 3770 (23 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1903566
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Paul Windsor
DATE:23 July 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 July 2020 at 4:20pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – fear of harm from loan shark, gang, police and government officials – loan to cover costs of father’s medical condition – threats but no harm – credibility – two voluntary returns with no harm – country information about health services and law enforcement – very similar claims to those in other applications before the tribunal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1)(a), 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
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 6 February 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Taiwan, applied for the visa on 3 September 2018.
In her protection visa application the applicant indicated that she was born on [date] in Kaohsiung City Taiwan, is of Taiwanese ethnicity and has never married. She indicated she did not practice any religion. She indicated she departed her home country legally [in] August 2018 and arrived in Australia [later in] August 2018, entering on a visitor visa.[1]
[1] See the Departmental file.
In her application, the applicant indicated that she sought protection in Australia because she suffered persecution from the Taiwan government because she was unable to repay money to an ‘underground bank’, which she borrowed to cover costs associated with her father’s medical condition. She commented that the ‘underground bank’ and ‘gangdom’ collude with the police and that the police were sent to catch her so she fled to Australia.[2]
[2] See the Departmental file.
The delegate refused to grant the visa finding that the refugee criterion was not satisfied because the claimed fear of harm was not for one or more of the five reasons mentioned in s.5J(1)(a) of the Act. In relation to the complementary protection criterion, the delegate commented that the applicant had not provided any supporting documentation and was not satisfied she had established her claims. The delegate noted the applicant had returned to Taiwan twice since first entering Australia on a working holiday visa in April 2016 and was not satisfied she experienced harm in Taiwan on either occasion. The delegate also found country information indicated that, in the applicant’s claimed circumstances, she could obtain protection from the National Police Authority in Taiwan, such that there would not be a real risk she would suffer significant harm if returned to Taiwan.
The applicant applied to the Tribunal for review of this decision on 16 February 2019. She provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See the Tribunal file.
The applicant participated in a telephone hearing before the Tribunal on 15 July 2020. The 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 (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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims for protection were set out in her protection visa application. Her claims were as follows:[4]
[4] See the Departmental file.
Select the country or countries from which this applicant is seeking protection and cannot return to: TAIWAN
Provide reasons why this applicant left that country or those countries:
I WAS PERSECUTED BY TAIWAN GOVERNMENT BECAUSE I UNABLE TO REPAY MONEY TO THE UNDERGROUND BANK. MY FATHER'S BODY CONDITIONS WAS NOT GOOD ALL THE TIME AND HE NEEDS TO TAKE MEDICINE EVERY DAY. THE DOCTOR TOLD US THAT MY FATHER NEEDS TO HAVE AN OPERATION TO KEEP HIS HEALTH, BUT OUR FAMILY HAS NO ENOUGH MONEY TO PAY THE MEDICAL FEE, SO WE HAVE TO BORROW MONEY FROM THE UNDERGROUND BANK. ALTHOUGH THE INTEREST WAS SO HIGH, WE HAVE NO OTHER CHOICE. ONE DAY THE UNDERGROUND BANK SENT PEOPLE CAME TO MY HOME TO FORCED US TO REPAY MONEY. THEY SMASHED ALL GOODS OF HOME AND THREATEN US. EVEN WORSE, I AND MY PARENTS WERE BEATEN BY THEM BECAUSE UNABLE TO REPAY MONEY. AFTER THAT, WE CALLED THE POLICE, BUT THE POLICE ONLY LET US TO WAIT. HOWEVER, WE DID NOT RECEIVE ANY RESULTS. I HEARD THAT THE GANGDOM WAS THE PROTECTIVE UMBRELLA OF THE UNDERGROUND BANK, THEY ALSO COLLUDED WITH THE POLICE. SO WE WROTE PUBLIC LETTER TO DISTRIBUTE, TO HOPE THAT GET SOCIETY'S ATTENTION AND HELP. HOWEVER, AFTER THE GANGDOM KNEW MY BEHAVIOUR, THEY SENT POLICE TO CATCH ME. I WAS SO SCARED, ESCAPE TAIWAN AND FLED TO AUSTRALIA.
Did this applicant experience harm in that country or those countries? No
Did this applicant move, or try to move, to another part of that country or those countries to seek safety? Yes
THE UNDERGROUND BANK AND GANGDOM ARE COLLUDED WITH POLICE. THEY PROTECT WITH EACH OTHER. THE TAIWAN GOVERNMENT IS CORRUPTION. THEY ONLY CARE THEIR OWN BENEFITS.
Explain what the applicant thinks will happen to them if they return to that country or those countries:
IF I RETURN TO TAIWAN, I WILL BE CAUGHT BY THE POLICE. THE UNDERGROUND BANK AND GANGDOM ARE COLLUDED WITH THE POLICE. ONCE I WENT INTO PRISON, I WILL BE PERSECUTED, AND EVEN I WILL DIE.
Does this applicant think they will be harmed or mistreated if they return to that country or countries? Yes
IF I GO BACK TO TAIWAN, I WILL BE PERSECUTED BY THE POLICE. THE POLICE AND OFFICIALS WERE COLLUDED WITH EACH OTHER. ONCE I WAS CAUGHT, I WILL SUFFER PERSECUTION FROM BOTH ON PHYSICAL AND MENTAL.
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back? No
THE TAIWAN GOVERNMENT IS CORRUPTION. THE UNDERGROUND BANK AND GANGDOM ARE COLLUDED WITH THE POLICE. THEY PROTECT WITH EACH. THEY ONLY CARE THEIR OWN BENEFITS
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed? Yes
THE WHOLE SITUATION OF TAIWAN IS THE SAME. THE UNDERGROUND BANK AND GANGDOM ARE COLLUDED WITH THE POLICE. THEY ONLY CARE THEIR OWN BENEFITS. THE GANGDOM WAS THE PROTECTIVE UMBRELLA OF THE UNDERGROUND BANK. THE GOVERNMENT IS CORRUPTION.
Findings and reasons
Identity
On the basis of the copy of her Taiwanese passport submitted to the Department,[5] 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
[5] 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
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
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.
For the reasons set out below the Tribunal found that the applicant is not a credible witness. The Tribunal concluded that she has concocted her claims to have borrowed money from an underground bank/loan shark to pay for her father’s health care and to have been harassed by gangsters and police who collude with the underground bank.
Assessment of claims
Background
At the start of the hearing the applicant indicated that everything in her application was true and correct as far as she knows and believes. She indicated that there were no mistakes she wished to correct. Contrary to the statement in her protection visa application that she was assisted in the preparation of the application by [Person A] of [Suburb 1] NSW, she indicated that she did not have any help or assistance in preparing the application.
The applicant indicated that her father is deceased but she has her mother, grandmother and elder brother living in Taiwan. Contrary to the information in her application (lodged on 3 September 2018), which indicated that both her parents were residing in Taiwan (and were not deceased), she said her father passed away around the end of 2010. She indicated that in the past her father worked as a [labourer]. She said her mother does not work. The applicant indicated that her mother and grandmother are supported by relatives and now live with her mother’s elder sister.
The applicant indicated that when she was in Taiwan she worked in [Factory 1]. She indicated that she has been working with [named employer] and at a [workplace] in Australia, and is now living in Sydney.
The applicant indicated that she first came to Australia on a working holiday visa in April 2016 because she was fired from her employment and wanted to earn some money.
Claim to have borrowed money from an ‘underground bank’ (loan shark)
The Tribunal asked the applicant why she sought protection in Australia in September 2018. She said she wished to work in Australia because she borrowed money from an underground bank and when she returned to Taiwan they threatened her.
When asked, the applicant indicated that she borrowed from an underground bank because of her father’s medical costs, which were very expensive. She said she was unable to meet these costs so had to borrow from an underground bank. She said she borrowed from them in the year her father passed. She confirmed this was 2010. She said she borrowed Taiwan New Dollars (NT)[Amount 1] (the equivalent of AUD[Amount 2] at the current exchange rate).
When asked why she needed to borrow that much money the applicant said she needed a lot for surgery and medical expenses. The Tribunal queried the applicant that she would only have been [age] years old in 2010 and asked her why someone would loan a [age]-year-old NT[Amount 1]. She indicated that her salary from [Factory 1] was quite high at the time. When asked, she said she earnt almost NT[Amount 3] per month.
When asked about the interest rate on the money she claims to have borrowed, the applicant said she paid TN[Amount 4] each month in interest. The Tribunal asked her how much she had to repay in total each month. The applicant replied that she has borrowed from her friends and relatives as well. She added that at first she only repaid interest but later started to repay the principal. She indicated she was given a limit of 10 years to repay the money. When queried, she said she started repaying principal in around 2012 or 2013. The applicant indicated she stopped making repayments when she returned to Taiwan in July 2018. The Tribunal asked her why she stopped making repayments in July 2018, given she must have repaid most of the loan by then. The applicant replied that she found out that most of the money she had sent back from Australia had been taken by her elder brother for gambling and she was told she still had TN[Amount 5] to repay. The Tribunal asked the applicant why there was no mention of this in her protection visa application. She indicated that she thought she had included it but maybe she missed it.
The Tribunal discussed with the applicant country information indicating that Taiwan has a comprehensive social welfare system (which accounts for more than 22 per cent of budget outlays),[6] and a compulsory National Health Insurance (NHI) scheme, legislated under the National Health Insurance Act (NHIA), in which 99.9 per cent of the population are enrolled.[7] The country information indicates that the NHI has a generous safety net for the disadvantaged, with everyone receiving the same level of health care based on a national uniform benefit package, regardless of ability to pay. More than 3 million economically disadvantaged Taiwanese (12.8% of the population) have full access to NHI services, owing to the NHIA’s various financial and access assistance measures, including premium subsidies and co-payment reductions or exemptions. Additionally, the government has lowered the income threshold in recent years to allow more people to become eligible for these subsidies. The NHIA also makes interest-free loans and instalment plans available to those who cannot pay their health insurance premiums.
[6] ‘BTI 2018 Country Report – Taiwan’, Bertelsmann Stiftung, 23 March 2018, p.18, CIS7B83941566
[7] 'International Profiles of Health Care Systems 2017', The Commonwealth Fund, Mossialos, E, et al (eds), 31 May 2017, CISEDB50AD5513, 163-171.
In light of this country information, the Tribunal asked the applicant why her father’s health care would not have been covered by the NHI. She acknowledged that Taiwan has the NHI scheme but said not all surgery and expenses are included, especially for serious illnesses. She said most cases in Taiwan need further insurance to cover these costs but her father did not have that. The Tribunal commented that the country information indicates the NHI provides for poor and disadvantaged people to access the same level of health care as everyone else. The applicant replied that they are excluded because they own property. The Tribunal queried the applicant if that is the case, why they didn’t use their property to cover any additional health care costs. The applicant replied that the property is held on her mother’s side of the family so they could not sell it. The applicant also commented that her father was sick for 16 years and had very expensive surgery, radiotherapy and ICU costs. The Tribunal asked the applicant who was meeting those costs for all those years, given she was only [age] years old when she claimed her father passed away. She commented, ‘of course’ and added that is why she indicated they also borrowed from friends and relatives.

The Tribunal put to applicant for comment or response, in accordance with the requirements of s.424AA of the Act, the following information:
·The Tribunal has hearings scheduled this week for five Taiwanese cases, including hers.
·Each of those cases has written claims included in the protection visa application that are very similar to her written claims.
·Depending on her response, this may cause the Tribunal to find that the claim has been manufactured by a third person, and does not relate to her personal circumstances.
·This may cause the Tribunal to find that she is not a credible witness.
The applicant indicated that she understood why this information was relevant to the review. She indicated that she did not need additional time to comment on or respond to the information. She commented that she does not know why there are other applications with similar content, adding that of course the Tribunal can doubt her story but why would it not believe this actually happened to her. She said she borrowed this large amount of money and worked hard for the treatment of her father. She added that her grandmother also fell ill and she did not take their health as a joke.
The Tribunal asked the applicant what happened when she stopped making repayments. She confirmed that she stopped making repayments shortly after she returned to Taiwan, in mid-2018. She indicated she had not had any problems before that time but in mid-2018 people from the underground bank came and flipped a table and chairs over and said she still owed them NT[Amount 5]. She said they were told they had to pay the NT[Amount 5] or they would be beaten-up. She said she gave them what she had and asked for more time. The applicant added that she called the police and sought help online but it was not effective. When queried about this, she said she called the police but they did not open a file and just asked them to go home and there was no further action. She said she then started an online post to try to find people with similar experiences to help her but not many responded.
The applicant said she later found a job but the salary was only around NT[Amount 6] per month and she could not afford to pay the underground bank so they came again. She said this time they were asked to pay in full but they could not, so the people hit them. She said they were told they had another few days to pay otherwise they would capture her for the loan because she is a female. She said her mother then asked her to leave the country so she would not be taken.
The Tribunal asked the applicant what happened after she left the country in August 2018, noting she has been back in Australia for nearly two years. She commented that she has heard that they are trying to find her brother but she has lost contact so is not sure. The Tribunal asked the applicant about whether these people had approached her mother demanding to know where she was and that her mother repay the money. The applicant replied that after her father’s ‘incident’ her mother moved in with her relatives so the underground bank people could not find her. The Tribunal queried the applicant that she had indicated that her father died in 2010 and that she was living with her mother long after that time. The applicant replied indicating that her mother moved between both places and while her mother usually stayed with relatives she came to stay with the applicant when she returned to Taiwan in 2018. The Tribunal put to the applicant that it seems very unlikely that her mother would come to stay with her rather than her going to stay with her mother at her relative’s place. The applicant said she did not want to get her relatives in trouble.
The Tribunal also queried why her mother did not sell her home to repay the debt if she was living with relatives. The applicant said it belongs to her mother’s younger brother so she does not have the right to sell it.
The Tribunal read to the applicant the key elements of her written statement of claims. The Tribunal commented that she had not mentioned in her application that the people from the underground bank had threatened to take her because she is female; and that while she had stated in her application that they sent police to catch her, she had not mentioned this in her oral evidence at the hearing. The applicant replied that it has been two years and she does not remember what she wrote. When queried why she stated in her application that the police were sent to catch her, she replied that she is sure it was not the police but was people from the underground bank. She added that the police did come over to the house the second time she called them and asked who had been beaten, but that was all they did.
The Tribunal asked the applicant why she stated in her application that she was persecuted by the Taiwan government, that the underground bank and gangs collude with the police and that if she returns to Taiwan she will be caught by the police, imprisoned, persecuted and might die. She said it was because the first time she went to the police they only put information down and took no further action and the second time they only asked who beat her and why and asked them for evidence. The Tribunal queried the applicant whether she had bruises or other evidence of a beating to show the police. She said she went for a medical and submitted that evidence but still there was no action, commenting that in those circumstances it is reasonable for her to feel the government is corrupt. The Tribunal commented that she did not say before that she had evidence and went for a medical. The applicant replied that the Tribunal did not ask her, adding that she said the police asked for evidence, not that she didn’t provide evidence.
The Tribunal also queried the applicant that in her application she wrote that the underground bank sent people to her home who smashed all the goods of the home, commenting that if that was the case, the police would also see that. The applicant indicated that the police saw it but did not act. The Tribunal put to the applicant that in her application she did not state that the police came to the house and saw the damage but did not act (she wrote that they called the police but were only ‘let’ to wait). The applicant replied that she wasn’t describing the incident in detail like she is now.
The Tribunal also discussed with the applicant information drawn from the following country information relevant to the effectiveness of the Taiwanese police, legislature and judicial system in combatting loan sharking and criminal gangs:
·     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.[8]
·     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). There is extensive CCTV coverage throughout Taiwan, which plays a significant role in deterring criminal activity.[9]
·     In 2016, an independent survey showed rising levels of confidence in citizen satisfaction with the police, reaching over 73% in that year.[10]
·     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.[11]
·     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.[12]
·     The Organized Crime Prevention Act has been instrumental in combatting organized crime.[13]
·     Various press reports illustrate the action taken by the Taiwanese authorities to address the activities of criminal gangs, including loan sharking, extortion and debt recovery, and including the arrest of corrupt police suspected of colluding with gangs.[14]
·     The judiciary in Taiwan is independent, with court rulings generally free from political or other undue interference.[15] The judicial system provides ample opportunities to seek redress for rights violations, with court trials following due process.[16] 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.[17]
·     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 ‘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).[18]
[8] ‘Taiwan 2018 Crime and Safety Report’, Overseas Security Advisory Council (OSAC), US Department of State, 2 July 2018, CIS7B839419268.
[9] Ibid.
[10] ‘Statistics shows satisfaction with police reached all-time high 73.3%’, National Police Agency, Ministry of Interior, 23 September 2016
[11] ‘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
[13] ‘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

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

[17] Ibid

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

The Tribunal put to the applicant that the relevant country information suggests that effective protection is available to people in Taiwan being harassed by loan sharks or their agents, consisting of relevant criminal laws in place addressing loan sharking, a reasonably effective police force and an impartial judicial system. The applicant replied that maybe the information available online is not correct, commenting that she can’t find Transparency International online and did not know about this organisation so went to the police who did not help. The Tribunal clarified that Transparency International does not provide assistance to individuals but reports on perceptions of levels of corruption in different countries. The applicant commented that before she came to Australia she looked for information online about Australia’s crime rate and saw information indicating it was not high, that there was not a lot of violent crime and if there was the offenders were caught, but heard from a colleague that their car was stolen or they were beaten in the street and called the police but the police did not do anything. She said people in Australia say they don’t know if the police protect people and commented that the reality of what happens may not be the same as what is stated online and for everything there is a side that is unseen.

Having carefully considered the relevant evidence and country information, the Tribunal finds that the applicant is not a credible witness and has concocted her claim to have borrowed NT[Amount 1] from an underground bank to fund medical treatment for her father. Accordingly, the Tribunal does not accept that the applicant and her family members have been harassed, threatened, suffered property damage or been beaten by gangsters or corrupt police acting on behalf of an underground bank. The Tribunal has reached this conclusion for the following reasons, considered cumulatively.

Firstly, the Tribunal does not accept that the applicant would have needed to borrow money from an underground bank to fund medical treatment and care for her father (or for her grandmother), given that 99.9 per cent of Taiwanese are covered by the NHI, the range of benefits available under the NHI, and the provisions to support disadvantaged members of society. The Tribunal does not accept the applicant’s claim that they had significant costs which were not covered by the NHI. In this regard, the Tribunal notes that while co-payments may be required for some services under the NHI, the country information cited above indicates that NHI benefits are uniform and comprehensive, and include inpatient and outpatient care (both primary and specialist care), prescription drugs, traditional Chinese medicine, physical rehabilitation, home care, chronic mental health care, and end-of-life care. Additionally, the NHI provides a generous safety net for disadvantaged populations, including the very sick, that ensures access to needed services. Outpatient co-payments for people with physical or mental disability are limited to NT50 and co-payments are also reduced for elderly adults with chronic disease who are enrolled in the Hospital Patient-Centered Integrated Care Plan. Co-payment exemptions apply to childbirth and 30 catastrophic diseases and conditions, as well as to low-income households and a range of other groups. The Tribunal found the applicant’s comments indicating that the family did not qualify for assistance because they had property holdings, but couldn’t sell the property to meet costs or pay off debt because the property was held by other family members, to be improbable and unconvincing in the claimed circumstances, where it was alleged that family members were being beaten and threatened.

Second, the applicant provided inconsistent information regarding whether her father was deceased. In her application, lodged in September 2018, she indicated both her parents were alive and residing in Taiwan. She commented in her claims that both she and her parents were beaten by people sent by the underground bank to their home. At the hearing, however, she claimed her father died in 2010.

Third, the applicant’s assertion that she was able to borrow NT[Amount 1] from an underground bank in 2010, when she was only [age] years old and working in [Factory 1], is improbable. The applicant claimed her salary was ‘quite high’ at NT[Amount 3] per month and she was only required to pay interest of NT[Amount 4] per month (and no principal) for the first two or so years. Her claimed salary, however, was improbably high, as the minimum wage in Taiwan in 2010 was only NT17,280,[19] only 35 per cent of what she claimed to have been earning (and comparable to what she stated she was able to earn when she returned to Taiwan in mid-2018 - around NT[Amount 6] per month). The Tribunal therefore considers it highly unlikely that a loan shark would have lent the applicant TN[Amount 1] on the basis that she would repay TN[Amount 4] per month interest and repay the principal over 10 years, when she clearly had little capacity to make these payments. Clearly, loan sharks want to make money (and not lose money) and therefore want some assurance that the person has the capacity to repay the debt.

[19] ‘Taiwan Minimum Monthly Wage 1978-2020 Data’, Trading Economics, >

Fourth, the evidence strongly suggests that the applicant’s claim has been developed by an unregistered migration agent and is being used by a number of applicants, and does not relate to her personal circumstances. The Tribunal found unconvincing the applicant’s comment at the hearing that while others with very similar, and in one case, identical claims, may have made things up, she was telling the truth. The tribunal notes that while she stated at hearing that she did not have any help or assistance in preparing the application, in the application it states a person named [Person A] of [Suburb 1] NSW provided assistance in the preparation of the application.

Fifth, there are significant and material differences between the applicant’s written claims and her evidence at the hearing, as discussed above. In her written statement the applicant made no mention of the significant claim made at the hearing - that she had not been able to repay the claimed debt because her brother gambled away most of the money she had sent from Australia. The Tribunal found totally unconvincing the applicant’s explanation for this omission, that she thought she had included it. The applicant also made no mention in her written statement that her grandmother also fell ill. She also made no mention in her application of the significant claim that her mother told her to leave Taiwan because the people sent by the underground bank said if she did not pay NT[Amount 5] in a few days they would take her in lieu of payment of the loan because she is a female. In her application it was stated that the applicant fled Taiwan because the family wrote a public letter to get society’s attention and help, and when the gang found out about this, they sent the police to catch her. In her application the applicant also stated that people sent by the underground bank smashed all the goods in the home, but at the hearing she indicated only that they overturned a table and chairs.

Sixth, the applicant provided inconsistent and confused evidence regarding her claimed interactions with the police and Taiwanese government. In the application she stated she was persecuted by the Taiwanese government, that the gang sent the police to catch her, that the police collude with the underground banks and ‘gangdom’ and that if she returns to Taiwan she fears she will be caught by the police, put in prison, persecuted and might die. When queried about this at the hearing, the applicant commented that she is sure she didn’t say that police came to catch her. The Tribunal also found unconvincing her explanation that she wrote so much about being persecuted by the police and the government because she approached the police twice but they did not take any action, noting that this is quite different to suggesting the police would catch and imprison her. The Tribunal also found the applicant’s evidence regarding her claimed interactions with the police generally to be vague and unconvincing. In the application she indicated that the family called the police on one occasion but the police ‘only let us to wait’, implying that the police did not come to their home. She did not indicate, as claimed at the hearing, that she approached the police twice and on the second occasion they came to the family home and asked them for evidence which they provided, including medical evidence, but took no further action. This statement that the police asked for and were given evidence is also inconsistent with the applicant’s statement earlier in the hearing that the second time she called the police they came to the house and asked who had been beaten and why were they beaten, and ‘that was it’.

Seventh, the country information regarding the actions of the Taiwanese authorities in combatting underground banks/loan sharking and associated debt collection by criminal gangs strongly suggests that the applicant and her family would have been able to get assistance from the Taiwanese police if being harassed, threatened, subjected to criminal damage and physical violence by an underground bank/loan sharks and their agents as claimed. While the Tribunal accepts that there may be some police corruption in Taiwan, the Tribunal finds the country information indicates that, in general, the Taiwanese police are well-regarded and that action has been taken against corrupt police. The Tribunal finds that the country information does not support the applicant’s assertions that the underground bank/loan sharks and gangsters collude with the police, protecting each other, that she will be captured and persecuted by the police and sent to prison, and that the Taiwanese government is corrupt.

The Tribunal notes the applicant’s comments regarding online information indicating crime rates are relatively low in Australia, while the reality is that crimes still occur. In this regard, the Tribunal accepts that no country can guarantee absolute protection for its citizens and residents. Considering the relevant country information above, however, the Tribunal finds that, should the applicant have required it, the authorities in Taiwan would have been able to provide effective protection to her, which is accessible and durable, consisting of appropriate laws, a reasonably effective police force and an impartial judicial system. The Tribunal concludes, however, that the applicant did not require protection from the authorities in Taiwan because she did not borrow money from an underground bank/loan shark and she and her family were not being harassed and threatened to repay a debt to an underground bank/loan shark.
Refugee criterion
Given the findings above, the Tribunal concludes there is not a real chance that the applicant will face treatment amounting to persecution involving serious harm at the hands of an underground bank/loan shark and/or their gangster associates or agents, colluding police or the Taiwan government, for one or more of the five reasons mentioned in s.5J(1)(a) of the Act, should she return to Taiwan in the reasonably foreseeable future.
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 her 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.[20]
[20] 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].
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 an underground bank/loan shark and/or their gangster associates or agents, colluding police, the Taiwan government or anyone else.
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;
‘Police crackdown on gangs results in hundreds caught’, Taipei Times, 14 January 2017,

[2020] AATA 3770

23 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice