1910364 (Refugee)

1910364 (Refugee) [2020] AATA 4489 (27 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1910364
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Paul Windsor
DATE:27 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 August 2020 at 3:25pm
CATCHWORDS
REFUGEE – Protection visa – Taiwan –father used his identity to borrow money – loan sharks – altering evidence in response to inconsistencies – came to Australia to earn more money – effective protection is available –credibility concerns –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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 and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 April 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 17 August 2018.
In his protection visa application the applicant indicated he was born on [date] in Kaohsiung, Taiwan. He stated he is of Chinese ethnicity and has never married. He indicated he departed Taiwan legally [in] April 2018 on a Taiwanese passport and arrived in Australia [in] April 2018, entering on a visitor visa.[1]
[1] See the Departmental file.
In his application, the applicant indicated that he sought protection in Australia because he needed to make money to pay for his mother’s medical expenses and his younger sister’s tuition expenses.[2]
[2] See the Departmental file.
The delegate refused to grant the visa finding that the claimed fear of harm is 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, after considering relevant country information, was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Taiwan, there is a real risk he will suffer significant, as defined in s.36(2A) of the Act.
The applicant applied to the Tribunal for review of this decision on 25 April 2019. He provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See the Tribunal file.
The applicant appeared before the Tribunal by telephone on 18 August 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 his protection visa application. His claims were as follows (as written by the applicant):[4]
[4] See the Departmental file.
I am seeking protection in Australia so that I do not have to return to: TAIWAN
Why did you leave that country?
WHEN I WAS [age] YEARS OlD MY DAD TOOK MY DOCUMENTS AND BORROWED MONEY FROM OTHER PEORE THE BANK AlSO BORROWED MILLIONS OF MONEY SO MY SALARY IN TAIWAN WILL BE FORCIDLY RETURNED TO THE BANK BY THE GOVERNMENT AND I DON'T HAVE MONEY TO PAY UNIVERSITY FOR STUDYING THEN MY MOTHER STARTED TO GET SICK IN 2012 SHE HAVE TO GO TO THE HOSPIBLY FOR EVERY TWO MONTHS NOW ICANT AFFORD TO PAY SO MUCH MONEY IN TAIWEN SO I COME TO AUSTRALIA MAKE MONEY TO PAY FOY MYMOTHER'S MEDICAL EXPENSES AND MY YOUNGER SISTER TUITION AS SUPPORT MY MOM AND SISTER LIFE AND I DID SEND TO ONE APPLICATINO ON 11/7/2018 BUT ITS Incomplete supply of MY information AND I STILL NOT GET ANY MAIL FORM IMMI SO I DO 2ND APPLICATION NOW
What do you think will happen to you if you return to that country?
THERE WILL BE NOWAY TO PAY FOR MY MOTHER'S MEDICAL EXPENSES AND MY SISERS TUITION.
Did you experience harm in that country? No
Did you seek help within that country after the harm? N/A
Did you move, or try to move, to another part of that country to seek safety? No
Do you think you will be harmed or mistreated if you return to that country? No
Do you think the authorities of that country can and will protect you if you go back? No
Do you think you would be able to relocate within that country to an area where you would not be harmed? No
Findings and reasons
Identity
On the basis of the copy of his Taiwanese passport submitted to the Department,[5] the Tribunal accepts that the applicant is a national of Taiwan and that his identity is as claimed. The Tribunal accepts that Taiwan is his ‘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 him being removed from Australia to his receiving country of Taiwan, there is a real risk he 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 was not a credible witness. The Tribunal considers that he has concocted his claim that his father took his identity documents and borrowed large sums of money from a bank and a loan shark, leaving him with large debts.
Assessment of claims
Background
At the start of the hearing the applicant indicated that everything in his application was true and correct as far as he knew and believed. He indicated that there were no mistakes in his application that he wished to correct ‘at the moment’. He said he had not had any assistance in preparing his application.
The applicant indicated that his mother remarried when he was in school. He said he has his mother and step-father in Taiwan and [siblings]. He indicated his family live in Kaohsiung City and that he is in contact with his mother. He said his mother does not work but his step-father [works]. He indicated his younger sister [is] at school, and lives with his mother. He said his elder sister is in Australia and they are living together in [Victoria]. He said they did not travel to Australia together and his sister was already in Australia when he arrived.
The applicant indicated that his biological father is still alive but indicated that he last had contact with him in 2018, when his father came to borrow money from him.
The applicant indicated that he did ‘all sort of jobs’ in Taiwan, such as[various jobs].
The Tribunal queried the applicant that in his protection visa application he indicated he undertook a course [which] he completed in July 2006. He indicated this was correct and said he majored in[a specified field]. He also confirmed that he undertook military service from February 2007 until April 2011. The Tribunal commented that there is then a gap of more than six years in his employment history until June 2017 (when he stated he worked in [a specified field] until February 2018, before coming to Australia in April 2018). The applicant said he was doing all sorts of work over this time, as indicated above.
Noting the delegate’s decision record, a copy of which the applicant provided to the Tribunal, indicates that the applicant does not have work rights in Australia, the Tribunal asked him if he is working in Australia. He replied that he has a friend who runs [a] farm and he helps his friend but the ‘income’ is low. When asked why the income is low, the applicant said he does not have a work permit so he works as a ‘handyman’ in exchange for accommodation and food.
The Tribunal also queried the applicant that the delegate’s decision record indicates he had travelled to Australia on two occasions before April 2018: in May 2014 (for two months) and August 2014 (for three weeks). The applicant said on the first occasions he came to sight-see but the second time he came on a working holiday visa but had to return to Taiwan due to family issues. The Tribunal queried the applicant that the delegate’s decision record indicates he was granted a working holiday visa on 15 September 2014, after he had come to Australia in August 2014 on a visitor visa. He acknowledged that is correct and that he didn’t use the subsequently granted working holiday visa. He said that was because his biological father did some bad things so he had to rush back to Taiwan.
Claim that father borrowed money using his identity documents
The Tribunal asked the applicant why he returned to Australia in April 2018 and why he then sought protection in Australia. He said it was because his biological father used his identity to borrow lots of money, including from loan sharks, so he owed a lot of money and had no other option but to come to Australia.
Noting that in his application the applicant indicated that his father took his documents when he was [age] (that is, between late September 2009 and late September 2010) and borrowed money from other people and a bank, the Tribunal asked the applicant when his father borrowed the money. The applicant replied that it was during his second trip to Australia (which was from [August] to [September] 2014), commenting that is why he had to go back to Taiwan. The Tribunal found this account unconvincing, given the wide discrepancy in dates between his written and oral accounts regarding when his father took his identity documents and borrowed money (2010 as opposed to 2014). Accordingly, the Tribunal queried the applicant that in his application he stated that his father took his documents and borrowed money when he was[age], which would have been in 2010, not 2014 when he was in Australia. The applicant replied that his father borrowed 10 years ago and that has been repaid, but he borrowed again while the applicant was in Australia. The Tribunal asked why that is not stated in his application. The applicant replied that at the time his mother was in hospital and he needed to pay for her medical expenses, so he did not include all those details. The Tribunal also did not find this explanation convincing (as this is not a matter of detail but is a significant and material omission), and considers the applicant was altering his evidence in response to inconsistencies between his written statement and oral evidence at the hearing pointed out by the Tribunal.
The Tribunal asked the applicant if he went to the police when he found out his father had borrowed money using his identity documents. He said he did but commented that the police did not do anything because his father had borrowed from loan sharks. When the Tribunal queried the applicant, however, that it would expect that police would have talked to his father because what he claims his father had done amounts to identity fraud, and his father would be responsible for those debts, the applicant again altered his account, commenting that his father was arrested and taken into custody. The Tribunal finds that the applicant has made inconsistent statements regarding police action – firstly stating they did not do anything but then altering his account when pressed by the Tribunal and stating the police arrested his father and took him into custody. The Tribunal finds that the inconsistencies in the applicant’s account undermines the credibility of his claim that his father borrowed money using his identity documents.
The Tribunal asked the applicant what happened next. He replied that he had to work a lot of jobs to repay the debts otherwise the underworld would pursue him. The Tribunal queried the applicant whether he told the underworld people the debts were not his and whether he went to the police for protection if he was being harassed by them. The applicant said he did report to the police but it did not help because the police said the debt was in his name and could not be transferred to someone else. The Tribunal queried why that was the case given his father was using his documents fraudulently. The applicant commented it was because the loan was from a loan shark rather than from a bank. The Tribunal also found this evidence unconvincing, noting the country information discussed below regarding the activities of the Taiwanese National Police Administration (NPA) addressing loan sharking.
When asked, the applicant said his father borrowed nearly NT$[amount] (the equivalent of approximately AUD [amount] at the current exchange rate). The Tribunal asked the applicant why these people would have lent his father this much money. He replied he did not know and that he was in Australia at the time. The Tribunal found this evidence unconvincing, noting this is an enormous sum of money and it is highly improbable that a loan shark would loan the applicant’s father such a large sum of money based on the applicant’s identity documents, given the applicant was a young man doing military service until April 2011 and was then doing low paid odd jobs. He clearly would not have had the capacity to repay such a large amount of money, or the amount of interest that would be charged by loan sharks on such a large sum of money. Accordingly, the Tribunal finds it implausible that a loan shark would have loaned such a large sum of money to someone who had no prospect of meeting interest repayments or repaying the principal loan amount.

The Tribunal asked the applicant about his mother’s medical condition. He indicated she gets [Medical condition 1] from time to time and will need [surgery]. When asked, he said his mother does not have any other health concerns. Noting that the applicant had provided to the Department a medical report dated [date] April 2017, indicating that it was for his mother (which the delegate gave no weight on the basis that it was in English rather than Chinese and the delegate could not verify who it related to), the Tribunal asked the applicant if it was usual in Taiwan for medical results to be provided in English. The applicant commented that it is not usual, but said he asked the hospital to provide the results in English so he could submit the document to the Department. Noting that the document indicates the patient (whose name is not given in English) has chronic [Medical condition 2], the Tribunal asked the applicant if his mother has any issues with her [Body part 1]. He said she did, adding that they have a family history of [Medical condition 3]. On balance, the Tribunal accepts this document is genuine and relates to the applicant’s mother. The Tribunal accepts that the applicant’s mother has chronic [Medical condition 2] and suffers from [Medical condition 1].
The Tribunal asked the applicant what happened to him over the nearly four years he was back in Taiwan from September 2014 until he returned to Australia in April 2018. He said during that time he was occupied going to the court, was working very hard, and was also taking his mother to hospital. He added that he came to Australia in 2018 so he could earn more money. The Tribunal asked what happened with the [debt] to a loan shark over that time. The applicant replied that he went to the court to ask his father why he borrowed so much money, and had to work really hard to repay the debt and his mother’s medical expenses. The Tribunal asked the applicant if he has repaid the debt. He replied, ‘not yet’ and said he still owes NT$[amount]. Noting that the minimum wage in Taiwan was NT$22,000 per month in 2018 (and is currently NT$23,800 per month),[6] the Tribunal queried the applicant how he was able to pay off so much (NT$[amount], plus interest) of a NT$[amount] debt. He replied that it is possible to repay such an amount and that, although he does not earn a lot in Australia, he can repay the debt bit by bit. The Tribunal queried the applicant that he had said earlier in the hearing that he was not earning anything in Australia but did some work in return for accommodation and food. He replied that he does get some money and had worked out a deal where he repays [part] of the debt each month. The Tribunal commented that it would take him a long time to repay his debt at that rate. The applicant replied ‘that‘s right’ but added that if he could get a work permit he could earn more and repay the debt faster. The Tribunal found the applicant’s evidence unconvincing. The Tribunal does not accept that he could have paid off more than half of a [amount] debt, plus interest payments, through working low paid odd jobs [in] Taiwan, and by sending NT$[amount] per month from earnings in Australia.
[6] ‘Taiwan Minimum Monthly Wage 1978-2020 Data’, Trading Economics, >
The Tribunal queried the applicant that in his protection visa application he did not state that he came to Australia to repay a debt to a loan shark but stated he came to make money to pay for his mother’s medical expenses and his younger sister’s tuition. He replied that was because he was responding to the Tribunal’s question about the loan shark debts and how he paid them. The Tribunal found this response did not address the Tribunal’s question regarding why he did not state in his application that he came to Australia so he could make money to repay a loan shark debt. The Tribunal finds this omission further undermines the credibility of the applicant’s claim to have a loan shark debt.
The Tribunal asked the applicant how he could meet all his claimed expenses (loan shark debt, mother’s medical expenses and sister’s tuition costs) when he has no work rights in Australia, commenting that it makes the Tribunal think he may not be being truthful in his evidence. The applicant replied that he thinks his elder sister, who is also in Australia, bears some of the medical and tuition costs as well, adding that he is currently focusing on repaying his debt. The Tribunal also finds that the applicant’s evidence indicates that he is working for wages in Australia, in beach of the ‘no work’ condition on his visa. The Tribunal considers that the applicant was not truthful with the Tribunal regarding this matter initially in the hearing, and considers that this further reflects poorly on his credibility as a witness.
The Tribunal asked the applicant what he thinks will happen to him if he has to return to Taiwan. He replied the underworld figures will chase him for repayment of the debt. The Tribunal queried the applicant that these people did not appear to have done that in the nearly four years he was back in Taiwan. He replied that while he was there he tried to repay the debt and they just wanted him to keep doing that, and if he returns they will chase him again.
Noting that in his application the applicant indicated he did not experience harm in Taiwan and did not think he would be harmed or mistreated if he returned (only that there will be no way to pay for his mother’s medical expenses and his sister’s tuition), the Tribunal asked the applicant if he was ever harmed by these people. He replied ‘yes’ commenting that is why he came to Australia. When asked what happened he said they harmed him physically by beating him up and threatened his family. He commented that they understood he needed to work so they didn’t harm him too badly.
The Tribunal asked the applicant why, in response to the question in his application regarding what he thought would happen to him if he returned to Taiwan, he just stated there would be no way to pay for his mother’s medical expenses and his sister’s tuition, and there was nothing about him owing a debt to a bank or a loan shark. The applicant acknowledged that he had not mentioned that. When queried that this is a big thing to leave out, the applicant asked if he could apply again. The Tribunal queried him that he also stated that he did not experience harm in Taiwan but is now saying he was beaten-up by the loan shark’s people. The applicant replied that he did not know he needed to mention that. The Tribunal again found the applicant’s evidence to be unpersuasive. The Tribunal does not accept that if the applicant owed an enormous debt to a loan shark in Taiwan, and had been beaten by agents of the loan shark, he would not have mentioned these matters in his protection visa application lodged in August 2018.
The Tribunal asked the applicant why he stated in his application that his salary in Taiwan would be forcibly returned to the bank by the government. The applicant said it was because his father also borrowed from a bank, adding that is why he had to change his job all the time. The Tribunal queried what the court matter was about. The applicant said it was to deal with the debt his father owed to the bank and the loan shark. When asked what the outcome was, he said the court acknowledged that his father had used his identity documents but he still needed to repay the debt. When queried why that would be the case, he commented the legal system is different in Taiwan, it is too large an amount and the borrower was his father so he needs to repay the debt. He said he has still not repaid the debt in full. The Tribunal also found this evidence unconvincing. The applicant has not provided any court documents to corroborate his claims and it seems implausible that a court would find he was the victim of identity fraud but was still responsible for a debt incurred by a third party, regardless of the size of the debt. The Tribunal does not accept the applicant’s claim that any salary he earned in Taiwan would be forcibly returned to a bank by the Taiwan government.
As the Tribunal does not accept the applicant’s claim that any salary he earned in Taiwan would be forcibly returned to a bank by the government, the Tribunal does not accept that the applicant did not or would not in the future have money to pay a university for studying.
The Tribunal queried the applicant why his step-father, as his mother’s second husband, did not meet his mother’s medical expenses. The applicant indicated that his step-father contributes but the total cost is too much for him alone.
The Tribunal put to the applicant for comment country information drawn from the following material regarding the social welfare system, including healthcare, in Taiwan:
Social welfare
·     With social welfare net expenditures accounting for 22.8% of the government budget in 2015 and 22.3% in 2016, Taiwan has one of the most comprehensive and well-developed welfare regimes in Asia. The social safety net is close-knit and provides for substantial protection against poverty and other social risks. The state provides a compulsory National Health Insurance (NHI) program for all citizens, including foreigners who have lived in Taiwan for more than six months, unemployment insurance, voluntary labor pension with portable retirement accounts, and mandatory coverage by a national pension scheme, which includes the unemployed, nonworking spouses and freelancers. Financial support is also given to the disabled and disadvantaged households, including living cost allowances, health care and special subsidies. Moreover, amendments to the Public Assistance Act, which came into force on July 1, 2011, stipulate the conditions of long and short-term assistance to lower and middle-income households by providing living subsidies covering different areas of threatened well-being. In May 2015, the legislature approved the Long-Term Care Services Act, which outlines the legal framework for a comprehensive strategy to deal with the long-term care requirements of Taiwan’s rapidly aging population.[7]
Health Care
·     99.9 per cent of the population are enrolled in the compulsory National Health Insurance (NHI) scheme, which is legislated under the National Health Insurance Act (NHIA).
·     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.[8]
[7] BTI 2018 Country Report – Taiwan, Bertelsmann Stiftung, 23 March 2018, 'International Profiles of Health Care Systems 2017', The Commonwealth Fund, Mossialos, E, et al (eds), 31 May 2017, CISEDB50AD5513, 163-171.

The Tribunal queried the applicant that the country information indicates that most costs for his mother’s medical treatment would be covered through the NHI scheme and it would seem that her husband could cover any out of pocket expenses. The applicant replied that the information is correct, indicating that he did not wish to comment further. The Tribunal concludes that the bulk of the applicant’s mother’s medical costs are covered by Taiwan’s NHI scheme and the applicant’s step-father could cover out-of-pocket expenses. The Tribunal concludes that the applicant does not have to meet medical expenses for his mother.

While the Tribunal accepts that the applicant may wish to contribute towards tuition costs for his younger sister’s schooling, the Tribunal finds that the evidence indicates that his elder sister, living in Australia and his step-father, who is working in Taiwan, could also contribute to these costs. The Tribunal finds that this is not a significant expense that has to be borne by the applicant.

The Tribunal also put to the applicant for comment information drawn from the following country advice relevant to the availability of effective protection in Taiwan to people being threatened or harassed by loan sharks and their agents:

· 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.[9]

· 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.[10]

· In 2016, an independent survey showed rising levels of confidence in citizen satisfaction with the police, reaching over 73% in that year.[11]

· 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.[12]

· 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.[13]

· The Organized Crime Prevention Act has been instrumental in combatting organized crime.[14]

· 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.[15]

· The judiciary in Taiwan is independent, with court rulings generally free from political or other undue interference.[16] The judicial system provides ample opportunities to seek redress for rights violations, with court trials following due process.[17] 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.[18]

· 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 most 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).[19]

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

[10] Ibid.

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

[12] ‘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

[14] ‘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

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

[18] Ibid

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

The Tribunal put to the applicant that the country information suggests that effective protection is available to people being harassed and/or threatened in Taiwan, comprising relevant criminal laws addressing the activities of loan sharks, a reasonably effective police force and an independent judiciary. The applicant indicated that he did not wish to comment on the information.

The Tribunal considers that the country information regarding the actions of the Taiwanese authorities in combatting loan sharking and associated debt collection by criminal gangs indicates that the applicant would have been able to get effective protection from (and would in the future be able to get effective protection from) the Taiwanese police if being harassed, threatened and subjected to criminal violence by a loan shark and/or their agents as claimed. The Tribunal considers that the effective protection available in Taiwan is accessible and durable, and consists of appropriate laws, a reasonably effective police force and an impartial judicial system. Having carefully considered all the available evidence, however, the Tribunal concludes that the applicant’s father did not borrow large amounts of money from a bank and from a loan shark using the applicant’s identity documents, and the applicant was not being harassed, threatened or beaten by a loan shark and/or their agents to repay a large debt. Accordingly, the Tribunal finds that the applicant did not and does not require protection from the authorities in Taiwan in relation to harassment, threats or actual violence from loan sharks and/or their agents in Taiwan.

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 a loan shark and/or their agents, a bank or the Taiwanese authorities, for one or more of the five reasons mentioned in s.5J(1)(a) of the Act, should he 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 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 him 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 a loan shark and/or their agents, a bank, the Taiwanese authorities 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

[2020] AATA 4489

27 August 2020

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