1904907 (Refugee)

[2024] AATA 3668

1904907 (Refugee) [2024] AATA 3668 (23 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1904907

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Nora Lamont

DATE:23 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 23 May 2024 at 1:01pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – borrowing from an underground bank – adverse information – same claims as many other applicants – credibility concerns – implausibility of claims – delay in seeking protection – effective state protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), 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 9 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Taiwan, applied for the visa on 20 September 2018.

3. The applicant appeared before the Tribunal on 20 May 2024 at 10:30am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant travelled to Australia on a valid Taiwan passport and claims to be a national of Taiwan. The delegate had no concerns with the applicant’s identity and nationality. Therefore, the Tribunal has assessed the applicant’s claims against Taiwan in relation to s36(2)(a) and s36(2)(aa) of the Migration Act.

5. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s36(3) of the Migration Act.

6. There are no non-disclosure certificates on the applicant’s file.

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

8. 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.

9. 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).

10. 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.

11. 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

12. 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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant will be harmed in Taiwan because of his borrowing from an underground bank. For the following reasons the Tribunal has concluded that the matter should be affirmed.

14. The applicant first arrived in Australia on a Subclass 417 Working Holiday visa [in] October 2016, and he has been in Australia since that time.

15. The applicant’s claims as written in his protection visa application are as follows: [1]

    I SUFFERED PERSECUTION BY THE UNDERGROUND BANK AND GANGDOM BECAUSE I UNABLE TO REPAY MONEY TO THEM. MY MOTHER'S HEALTH CONDITION 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 LIVE. WE JUST NORMAL FAMILY, CAN NOT AFFORD THAT MUCH MONEY, SO I HAVE TO BORROW MONEY FROM THE UNDERGROUND BANK. ALTHOUGH I KNOW THE INTEREST WAS VERY HIGH; I HAVE NO CHOICE. 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 IN MY HOME AND THREATEN MY MUM BECAUSE WE UNABLE TO REPAY MONEY.

    AFTER THAT, I CALLED THE POLICE, BUT THE POLICE IGNORE MY CASE. MY NEIGHBOR TOLD ME THAT THE GANGDOM WAS THE PROTECTIVE UMBRELLA OF UNDERGROUND BANK, THEY ALSO COLLUDED WITH THE POLICE. LATER, THE UNDERGROUND BANK OFTEN SENT PEOPLE TO MONTIOR MY HOME, SO I WRITE A PUBLIC LETTER TO DISTRIBUTE, TO HOPE THAT WE CAN GET SOCIETY'S ATTENTION AND HELP. HOWEVER, AFTER THE GANGDOM KNEW OUR BEHAVIOUR, THEY SENT PEOPLE TO CATCH ME. I WAS SO SCARED, SO I ESCAPE TAIWAN AND FLED TO AUSTRALIA.

    [1] Department File [number]

16. The Tribunal asked the applicant if his claims as written in his protection visa application were true and correct as far as he knew and believed and he said yes. When asked if someone gave him assistance with his application, he said that he did it with google translate, however he later said that he had help from a lawyer he consulted.

17. The applicant said that he completed high school and did one year at university studying [Discipline 1] then he dropped out. He then got jobs working in hospitality and various casual jobs. He heard about Australia and came here on a working holiday visa and worked in an abattoir and on farms. He is now a [Occupation 1] for [businesses].

18. The Tribunal asked the applicant why he was in Australia for two years before applying for a protection visa. He said that he didn’t know about the protection visa until he consulted a lawyer. When asked why he applied for a protection visa, he said that his father was an abuser and gambler, and he borrowed a lot of money, around ten million Taiwan dollars or around $465,000 AUD, and the gangsters were chasing the family. The Tribunal asked why they were chasing him if it was his father that borrowed the money. He said that they beat him up and even came to his school. When asked how many times they beat him up he said more than 60 times. The Tribunal told the applicant that this did not sound plausible. When asked if he went to the police, he said that he did report it to the police and his teachers, and he also called an anti-bullying hotline and reported it. The police just gave them a disciplinary warning and let them go. The police couldn’t do anything. He said that sometimes there were 6 of them beating him, sometimes 2 people. Again, the Tribunal noted that this does not sound plausible, and he said in Chinese culture if a father has debts, they become the son’s debts. He said that his father was forced to work as a labourer to pay the debts back.

19. The Tribunal asked the applicant if he had any documentation in relation to his claims and he said that he did not have any. The Tribunal noted to the applicant that he had been in Australia for 8 years and did he know if they were still looking for him or had his father paid the money back and he said that he heard from his grandmother that nothing had changed.

    424AA

20. At this point in the hearing the Tribunal put to the applicant that it had adverse information it wished to put to him in relation to his claims. Previously in the hearing, the Tribunal had outlined that if the Tribunal put adverse information before the applicant he could comment at the hearing or have the hearing adjourned if he wanted more time. The Tribunal explained that it wasn’t that the Tribunal had made up its mind on the information, but it was fair to put this information to the applicant.

21. The Tribunal put to the applicant that in his protection visa application he said that he borrowed the money, and that he borrowed the money because his mother needed medicine and surgery. It was also put to the applicant that the Tribunal had these exact same claims before it in other hearings. The applicant said that the Tribunal didn’t ask the questions about his mother. The applicant then said that he also borrowed money as his family didn’t have money for his mother’s medical treatment. When asked why he didn’t say this, he said that he had to borrow money so he could find a job as the gangsters prohibited him from getting a job. When asked how the applicant had the exact same claims as other applicants, he said that he did not know.

22. The Tribunal asked him how much money he borrowed, and he said 8 million Taiwan dollars which is around $375,000 AUD to pay back his father’s loan and get his mother medical treatment. The Tribunal put to the applicant that it didn’t seem plausible for gangsters to loan a [age]-year-old who worked in hospitality that much money. He said they are the underground. They can track down his family or force him work. When asked if he could move somewhere else in Taiwan, he said that they could track him down.

23. Current country information indicates that Taiwan has an effective police force, and the crime rate is very low. In addition, there is an effective and fair legal system. [2]

    Police Force

    Police are effective, and the crime rate is low. Violent crime rates are among the lowest in the world and crime is generally low. Excessive use of force by police is rare, and lawyers are allowed to monitor interrogations to prevent torture.79 A 2021 independent survey measuring public satisfaction with justice and crime prevention policies shows that for the third consecutive year more than 80 percent of the respondents were satisfied with the police in maintaining public safety. The Constitution prohibits arbitrary arrest and detention, and this principle is generally observed by authorities. Judicial system Taiwan’s court system is free and fair. Courts are independent, fair and generally free of corruption. All defendants have the right to a lawyer and to be present at trial. The most recent data of the World Values Survey (2019) shows that 56 percent of respondents in Taiwan expressed at least “quite a lot” of confidence in the judiciary. Nevertheless, large numbers of Taiwanese harbour long-standing and deep-seated mistrust in the effectiveness, political impartiality and fairness of the court system and judges. Some Taiwanese feel that the judicial system is unfair in rulings related to high profile political cases and President Tsai 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. The government has committed to addressing some of these concerns and has made some progress on judicial reform.

    [2] Common Claims Republic of China (Taiwan) Country of Origin Information Services Section (COISS) Effective from 15 August 2023.

    Findings

24. The Tribunal did not find the applicant to be credible. His written claims were different from his oral claims at the hearing. His claims are also the same claims as many other applicants. For the following reasons the Tribunal does not accept any of the applicant’s claims.

25. First, the applicant said that he prepared his application using google translate but later said he consulted a lawyer. He then told the Tribunal that his father gambled and borrowed a large sum of money but never said that he borrowed money or that he borrowed money to get his mother medicine and surgery. When asked about this under s424AA, he said that the Tribunal didn’t ask him about his mother. It is not up to the Tribunal to tell the applicant what his claims are, and he did not mention his father in his written claims and did not mention his mother or his borrowing of money in his oral claims until after the Tribunal had put the adverse information to him.

26. The applicant stated that he borrowed some $375,000 AUD from underground banks. The Tribunal finds that this is a substantial amount of money for a [age]-year-old to borrow while he is on a hospitality wage. As discussed at the hearing, the Tribunal finds it improbable that an underground bank would lend this amount of money to the applicant expecting him to repay this amount on his salary. It also seems improbable that the applicant was beaten 60 times and that nothing was done about it by the police.

27. The applicant first arrived in Australia in 2016 on a working holiday visa and did not apply for a protection visa until two years later. The Tribunal considers if the applicant held a genuine fear he would have applied for a protection visa as soon as he arrived, not wait for two years until his working holiday visa had come to an end.

28. Given these concerns and as discussed at the hearing, the Tribunal does not accept that the applicant is a credible witness. For the reasons set out above, the Tribunal does not accept the applicant’s written claims of needing to pay for his mother’s medicine and surgery and his oral claims that both he and his father borrowed a vast amount of money from an underground bank, that he was beaten 60 times and his father was forced to work to pay back the loan.

29. Country information shows that Taiwan is a free and open society with an effective police force and judicial system where the applicant would be given effective protection.

30. Given these findings, the Tribunal does not accept that if the applicant returns to Taiwan, he will face a real chance of persecution from the gangs and underground bank, or anyone associated with them. The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s5H(1).

31. Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Taiwan, there is a real risk that the applicant will suffer significant harm from the gangs or underground bank, or anyone associated with them. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s36(2)(aa) of the Migration Act.

32. 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

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

    Nora Lamont
    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.

    …