1903571 (Refugee)

[2020] AATA 3738

1903571 (Refugee) [2020] AATA 3738 (16 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1903571

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Paul Windsor

DATE:16 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 July 2020 at 3:55pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – money borrowed from loan sharks – threats – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5AAA, 5(H), 5(J), 5K-LA, 36, 65, 424AA, 499

Migration Regulations 1994, Schedule 2

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 February 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Taiwan, applied for the visa on 2 September 2018.

3. In her protection visa application the applicant indicated that she was born on [date] in Taipei City Taiwan, is of Han Chinese ethnicity and has never married.  She indicated she did not practice any religion.  She indicated she last departed her home country legally [in] August 2018 and arrived in Australia [in] August 2018, entering on a visitor visa.[1]

   [1] See the Departmental file.

4. In her application, the applicant indicated that she sought protection in Australia because she suffered persecution from an ‘underground bank’ and ‘gangdom’ because she could not repay money she borrowed to cover costs associated with her mother’s medical condition.  She commented that her parents sent her abroad as they were worried about her safety.[2]

   [2] See the Departmental file.

5. 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 was not satisfied that the applicant had established her claims, noting that she had not provided any supporting documentation and had returned to Taiwan on two occasions since first arriving in Australia in 2016.  The delegate also considered country information indicated that, in the applicant’s claimed personal circumstances, she could obtain protection from the National Police Administration (NPA), such that there would not be a real risk she would suffer significant harm if returned to Taiwan.

6. The applicant applied to the Tribunal for review of this decision on 16 February 2019. 

7. The applicant participated in a telephone hearing before the Tribunal on 13 July 2020.  The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. 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

14. The applicant’s claims for protection were set out in her protection visa application. Her claims were as follows:[3]

    [3] See the Departmental file.

    Provide reasons why this applicant left that country or those countries:

    I SUFFERED PERSECUTION BY THE UNDERGROUND BANK AND GANGDOM BECAUSE I UNABLE TO REPAY MONEY TO THEM . MY MOTHER'S BODY CONDITIONS WAS NOT GOOD ALL THE TIME AND SHE NEEDS TO TAKE MEDICINE EVERY DAY. EVEN WORSE, SHE NEEDS TO HAVE AN OPERATION TO KEEP HER HEALTH. DUE TO MY FAMILY ECONOMIC CONDITIONS WAS NOT GOOD, SO I HAVE TO BORROW MONEY FROM THE UNDERGROUND BANK. ALTHOUGH THE INTEREST WAS VERY HIGH, I HAVE NO CHIOCE. ONE DAY MY MOTHER CALLED ME AND SAID THAT THE UNDERGROUND BANK SENT PEOPLE CAME TO MY HOME TO COLLECT MONEY. THEY SMASHED ALL GOODS OF HOME AND THREATEN MY PARENTS BECAUSE WE UNABLE TO REPAY MONEY. AFTER THAT, I CALLED THE POLICE, BUT THE POLICE IGNORE OUR CASE. MY NEIGHBOUR TOLD ME THAT THE GANGDOM WAS THE PROTECTIVE UMBRELLA OF UNDERGROUND BANK, THEY ALSO COLLUDED WITH THE POLICE. MY PARENTS WORRIED ABOUT MY SAFETY, SENT ME ABROAD. LATER, I HEARD THAT THE UNDERGROUND BANK OFTEN SENT PEOPLE TO MONTIOR MY HOME, SO I RETURNED TAIWAN AND LET MY PARENTS TO WRITE PUBLIC LETTER TO DISTRIBUTE, TO HOPE THAT GET SOCIETY'S ATTENTION AND HELP. HOWEVER, AFTER THE GANGDOM KNEW OUR BEHAVIOUR, THEY SENT PEOPLE TO CATCH US. I WAS SO SCARED, ESCAPE TAIWAN AND FLED TO AUSTRALIA AGAIN.

    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 POLICE. THEY PROTECT WITH EACH OTHER. 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?

    No

    THE WHOLE SITUATION OF TAIWAN IS THE SAME. THE UNDERGROUND BANK AND GANGDOM ARE COLLUDED WITH 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

15. On the basis of the copy of her Taiwanese passport submitted to the Department,[4] 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

    [4] See the Departmental file.

16. 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.

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

    Credibility 

18. 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.

19. 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.

20. 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.

21. 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.

22. 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).

23. 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.

24. For the reasons set out below the Tribunal found that the applicant was not a credible witness.  The Tribunal considers that she has concocted her claim to have borrowed money from an ‘underground bank’ to fund her mother’s medical expenses.

    Assessment of claims

    Background

25. At the start of the hearing the applicant indicated that everything in her protection visa 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 application indicating that she received assistance from a person named [deleted] in completing the application form, she said she did not receive any help or assistance.

26. The applicant indicated that she has her parents and an elder sister living in Taipei City, Taiwan.  She indicated that her sister works [and] does not live with her parents.  She said her parents are retired, but previously they used to [work in a particular industry].

27. The applicant indicated that she used to live with her parents in Taiwan before she came to Australia.  She said she used to work in [two jobs]. 

28. The applicant indicated that she first came to Australia in 2016, on a working holiday visa.

    Claim to have borrowed money from an ‘underground bank’ (loan shark)

29. The Tribunal asked the applicant why she returned to Australia in August 2018 on a visitor visa.  She replied that when she went back to Taiwan some people came to the house to get money they were owed and she was told by colleagues that if she went to Australia she would be able to work there.

30. The Tribunal asked the applicant about the people she said came to the house.  She said she did not know who they were but they all looked like hooligans and were wearing singlets.

31. The Tribunal asked the applicant why these people said she owed them money.  She replied that it was because before she came to Australia on a working holiday visa her mother got sick and she borrowed money to pay for her mother’s medical, hospital and living expenses.  She commented that while she was in Australia on a working holiday visa she was slowly paying back some of the money but could not repay all of it.

32. The Tribunal asked the applicant why she needed to borrow money for her mother’s medical expenses.  She replied that her mother had [a medical condition] and needed treatment.  The Tribunal asked the applicant why her mother’s medical expenses were not covered by Taiwan’s National Health Insurance (NHI) scheme.  The applicant replied that her mother’s health issue was a chronic condition and her mother was not working.

33. 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),[5] 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.[6]  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.

    [5] ‘BTI 2018 Country Report – Taiwan’, Bertelsmann Stiftung, 23 March 2018, p.18, CIS7B83941566

    [6] 'International Profiles of Health Care Systems 2017', The Commonwealth Fund, Mossialos, E, et al (eds), 31 May 2017, CISEDB50AD5513, 163-171.

34. The Tribunal commented that, given the information regarding the NHI, the Tribunal finds it very hard to see how her mother’s health expenses would not have been covered by the NHI.  The applicant replied that some items are not included in the NHI.  She added that in good hospitals the patients still need to pay for some things.  The Tribunal asked the applicant to give examples of the things that they still needed to pay for.  She replied, ‘hospitalisation and food’.  The applicant added that her mother is afraid of noise so she could not be in a ward with many other people.

35. The Tribunal asked the applicant how much she borrowed.  She indicated it was Taiwan New Dollars (NT)[amount] (the equivalent of AUD[amount] at the current exchange rate).  The Tribunal asked her why she borrowed so much.  She said it was because her mother was in hospital a long time and initially she borrowed NT[amount] but her mother had an infection and had to go back and forth.  The Tribunal asked the applicant when she first borrowed.  She said it was 2014 or 2015, around 1-2 years before she first came to Australia.  The Tribunal asked her what the interest rate was on the loan.  She said she did not know how to compute the rate, adding that she pays periodically.  She said she was told that she only pays interest, not the principal.  The Tribunal asked her about the size of the payments.  She said she was paying around NT[amount range] per month.  The Tribunal asked her how many repayments she had made.  She said she can’t remember.  When asked how much she had paid in total she said around NT[amount range].

36. The Tribunal queried the applicant why these people would have loaned her NT[amount] when it would seem she could not make monthly interest repayments of NT[amount range] or ever repay NT[amount].  She replied that before she borrowed the money they did not tell her how high the interest was, only that she would pay the money back in instalments, and it was only after she borrowed that they told her about the interest.  The Tribunal queried the applicant why she didn’t ask what the interest rate was.  She replied that they said it would be very little.  The Tribunal queried her that in her application she wrote that she had to borrow from an underground bank even though the interest was very high.

37. The Tribunal asked the applicant how much she was able to pay in the 1-2 year period before she first came to Australia.  She said her salary was NT[amount] per month so she paid NT[amount range] each month.  She indicated that she had a friend who was working in Australia and the whole family decided she should come to Australia so she could earn more money to pay back what she owed faster.

38. 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, and in one case are identical 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.

1. 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.  The applicant said one of the people with similar claims is her friend and that they came to Australia together in August 2018.  She said when her working holiday visa was about to end she met her colleague, who told her about protection visas.  She said she did not lodge a protection visa application immediately and it was only after she returned to Taiwan that she decided to come back to Australia and make a protection visa application.  The Tribunal put to the applicant that the use of the same claim by these applicants suggests the claim is not genuine and is being used to try to get a protection visa.  The applicant replied that she does not know whether there are similar claims made by others but it is a fact that she encountered the issued as claimed.  She added that when the television was broken that very definitely happened.  She said she reported to the police but did not get assistance from them.  She said this was because there was no CCTV and so was no evidence.  She indicated that the police said they would follow-up but there was no result from their inquiries.  The applicant added that she has paid back money for a long period and has evidence from the bank of Taiwan.  The Tribunal asked her why she has not provided this evidence.  She replied that they are all short term or odd jobs and sometimes there are 2 or 3 different jobs.

2. The Tribunal queried the applicant that in her application she stated that her parents were worried about her safety and sent her abroad and asked her, in that case, why she returned to Taiwan on two occasions.  She replied that she only visited for one or two weeks and no-one knew she was there.  The Tribunal queried the applicant that the second time she returned she stayed in Taiwan for four months.  She said that after her Working holiday visa finished she had not decided to lodge a Protection visa application.  She said she needed to return to Taiwan but the people learned she had returned.  She thought she could do odd jobs in Taiwan but the interest rate was too high and the people approached her family so her family discussed the matter and decided she should return to Australia and apply for a protection visa.  She indicated that the people came twice to the family home twice but commented that she was working.  She said the first time the people just said how much she had to pay back and she asked them why the interest was so high.  The second time they smashed something.  She said she thought it was a table or chairs in the living room.  The Tribunal asked her about the television she had referred to previously as having been smashed.  The applicant indicated that happened ‘the previous time’.  The Tribunal queried her that she had indicated she was working and sought clarification whether she was home when these people came.  She said she did not see them when she returned to Taiwan from April to August 2018 but her father told her about it.  She said they came to the family home twice prior to her first going to Australia on a working holiday visa in 2016.

3. The Tribunal put to the applicant that it seems surprising that in the four months she was back in Taiwan (from April to August 2018) these people never found her and never spoke to her in person.  She replied that perhaps it was because she was doing odd jobs.  She said she was changing jobs every 2-3 days, [in various roles].

4. Noting the reference in her application to her parents having written ‘a public letter to distribute, to hope to get society’s attention and help’, the Tribunal asked the applicant if her father or parents did anything else.  She replied that they just reported to the police, commenting that the police station is just beside their house.  The Tribunal queried the applicant that if the police station is so close by why her father didn’t go there as soon as these people came to the house.  She said if they had made a phone call the people would have just left.  The Tribunal queried the applicant about differences between her evidence at the hearing and what was stated in her written statement, where she indicated that she called the police after all the goods of the home were smashed (rather than her father), but the police ignored the case; that she returned to Taiwan after she heard that the underground bank often sent people to monitor her home, and that she let her parents write a public letter to distribute.  The applicant replied that she left Taiwan because these people wanted to catch her.  She said she only posted a public letter to [social media] but there was no result and commented that police take bribes.

5. The Tribunal discussed with the applicant information drawn from the following country information relevant to the effectiveness in combatting loan sharking of the Taiwanese police, legislature and judicial system:

   ·     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.[7]

   ·     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.[8]

   ·     In 2016, an independent survey showed rising levels of confidence in citizen satisfaction with the police, reaching over 73% in that year.[9]

   ·     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.[10]

   ·     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.[11]

   ·     The Organized Crime Prevention Act has been instrumental in combatting organized crime.[12]

   ·     Various press report indicate that action is taken by the Taiwanese authorities to address loan sharking and the use of gangs to recover money, including the arrest of corrupt police suspected of colluding with loan sharks.[13]

   ·     The judiciary in Taiwan is independent, with court rulings generally free from political or other undue interference.[14]  The judicial system provides ample opportunities to seek redress for rights violations, with court trials following due process.[15]  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.[16]

   ·     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).[17]

   [7] ‘Taiwan 2018 Crime and Safety Report’, Overseas Security Advisory Council (OSAC), US Department of State, 2 July 2018, CIS7B839419268.  

   [8] Ibid.

   [9] ‘Statistics shows satisfaction with police reached all-time high 73.3%’, National Police Agency, Ministry of Interior, 23 September 2016  

   [10] ‘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  

   [12] ‘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  

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

[16] Ibid

[17] 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 underground banks/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 Tribunal commented that she had indicated the police station is next to her family home, indicating that the police are very accessible in her case.

The applicant commented that the information is different to what she has seen on television in Taiwan where people hit others on the road or drive under the influence but are not penalised like people are in Australia.  She said she was once harassed on the road and has a relative who also borrowed money and was harassed by having his house sprayed with paint two or three times.  She said her relative reported the matter to the police but the police did not find the culprit, perhaps because they were bribed.  She added that the police beside her family home might also be being bribed.

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] from a loan shark to fund medical treatment for her mother.  Accordingly, the Tribunal does not accept that the applicant and her family members have been harassed or threatened or suffered property damage from debt collectors acting on behalf of an underground bank or loan shark.  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 a loan shark, paying interest of NT[amount range] per month, to fund medical treatment and care for her mother, 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.

Second, the Tribunal considers it highly improbable that a loan shark would have lent the applicant a total of TN [amount] on the basis that she would repay TN [amount range] each week, when she clearly had little capacity to make these payments given her [employment].  When queried regarding this, she altered her account, indicating she earnt NT [amount] per month and paid between NT[amount range] per month.  Clearly, loan sharks want to make money and therefore want some assurance that the person will be able to repay the money.

Third, the Tribunal found the applicant’s evidence generally to be vague, unconvincing and inconsistent.  For example, in her protection visa application the applicant wrote that she received assistance with her application from a person named [deleted].  At the hearing, however, she said she did not receive any help or assistance with the application. 

In the application the applicant stated that her parents sent her abroad as they were worried about her safety because the underground bank sent people to their home to collect money who smashed all the household goods and threatened her parents because they were unable to repay money.  At the hearing, however, she indicated she was making regular repayments while she was in Taiwan but the whole family decided she should come to Australia because she could make more money there and pay the money back faster. 

In her application the applicant indicated she knew the interest rate from an underground bank was very high but had no other choice but to borrow from an underground bank.  At the hearing, however, she indicated she did not know what the interest rate was, didn’t know how to calculate it, and didn’t ask or find out about the interest payments until after she had borrowed because she was told it would be very little. 

While the applicant indicated in the application that people who came to the family home smashed all their household goods, at the hearing she only indicated that a television and a table or some chairs had been smashed.  While she indicated in the application that she called the police after all the household goods were smashed, at the hearing she indicated her father called the police. 

While the applicant indicated in her application that she returned to Taiwan because she heard the underground bank often sent people to her home, at the hearing she indicated that people came to the house only four times, twice before she first left Taiwan in 2016 and twice after she returned in April 2018, not while she was in Australia. 

While the applicant indicated in her application that she let her parents write a public letter to distribute seeking help, at the hearing she indicated that the only action her parents took was to call the police.  Only when queried about the reference to a public letter did she say that she, rather than her parents, put a public letter on [social media].   

At the hearing the applicant initially said she was making repayments of NT[amount range] each month, but when queried how she could afford that when working in low paid jobs [she] altered her account to state that she earnt NT30,000 per month and made repayments of between NT[amount range] each month. 

The applicant commented at the hearing that the family got no assistance from the police because there was no CCTV and therefore no evidence, but if a television and/or table and chairs had been smashed as claimed, they would have had evidence of criminal damage to show the police.

The applicant commented at the hearing that she paid back money for a long period and has evidence from the Bank of Taiwan but when queried why she had not submitted this evidence made a vague statement about having worked many short-term odd jobs. 

The applicant did not provide a satisfactory explanation for why she returned to Taiwan on two occasions if she fled Taiwan in 2016 because her parents were concerned about her safety (as claimed in her application).  Rather than apply for protection in Australia in April 2018 after being told by a colleague about that option, the applicant chose to return to Taiwan and remained there for four months, suggesting she did not have significant concerns for her safety.  Over that four month period she indicated that the underground bank/loan sharks and their agents did not locate her to speak with her personally about her claimed debt, even though she stated in her application that if she returned to Taiwan, regardless of where in Taiwan she might go, she would be caught by the police because the underground bank and their gangs collude with the police, and she would be sent to prison, would be persecuted and might even die.

Fourth, the evidence strongly suggests that the applicant’s claim was 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 written statements, and in one case, identical statement, may have made things up, she was telling the truth.

Fifth, the country information regarding the actions of the Taiwanese authorities in combatting 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, subjected to criminal damage and threatened 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 suggestions at the hearing that Taiwanese police do not enforce the law and that the incidence of police accepting bribes from criminal gangs is widespread.  Nor does it support the assertion in her written statement that underground banks/loan sharks and their gangster associates collude with the police, protecting each other, that she will be persecuted by the police and sent to prison, and that the Taiwanese government is corrupt.

The Tribunal considers the country information indicates 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 and does not require protection from the authorities in Taiwan because she did not borrow money from a loan shark and she and her family were not being harassed and threatened to repay a debt to a loan shark.

Refugee criterion

Given the Tribunal’s findings above, the Tribunal finds 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 sharks and/or their gangster associates or agents, or colluding police, 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.[18]

[18] 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].

1. 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 sharks and/or their gangster associates or agents, colluding police or anyone else.

2. 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

3. 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

4. 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