2008541 (Refugee)

[2022] AATA 982

2008541 (Refugee) [2022] AATA 982 (28 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008541

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Mr S Norman

DATE:28 February 2022  

PLACE OF DECISION:  Sydney

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

Statement made on 28 February 2022 at 12:00pm

CATCHWORDS

REFUGEE – protection visa – Taiwan – fear of harm by criminal gangs – business debts – loan repayments – physical assault – robbery – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 426, 499
Migration Regulations 1994, Schedule 2

CASES

Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 May 2020 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 1 July 2019. The Department delegate’s decision was lodged with the Tribunal.

   CRITERIA FOR A PROTECTION VISA

2. 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.

   Mandatory considerations

3. 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

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

5. By hearing invitation letter dated 15 November 2021 (dispatched by email), the Tribunal advised the applicant it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing starting at 10:00am on 28 February 2022. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The Tribunal had also sent two SMS hearing reminder texts to the applicant shortly prior to the hearing.

6. As the hearing was arranged during the COVID-19 lockdown in Sydney, the Tribunal initially offered the applicant a video hearing. He had subsequently advised he did not have the technology for this, so the Tribunal re-scheduled the hearing as a telephone hearing. The applicant had also requested the hearing be conducted face to face. However, after considering the claims, and again, as the hearing was being arranged during COVID-19, the Tribunal believed the hearing might proceed by telephone.

7. On the day of the hearing, the Tribunal telephoned the applicant on three occasions shortly prior to the scheduled hearing start time. The Tribunal also telephoned the applicant on two occasions at around 10:30am. The Member constituted was advised the applicant had not answered the telephone calls. Neither had the applicant otherwise contacted the Tribunal on the day of the hearing, and prior to this decision being made.

8. The Tribunal also notes the applicant did not respond to its s.424(2) letter, dated 11 November 2021 – due date being 25 November 2021.

9. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking further action to enable the applicant to appear before it.

   The applicant’s claims:

10. The ethnic Chinese and Catholic[1] applicant said he was from Gaoxiong, Taiwan. He said he married in May 2010. He said his wife and other family members remain in Taiwan. He said he only speaks, reads and writes Chinese (nec).[2]

    [1] PDF – p.14 (‘PDF’ refers to the merged Department file on the Tribunal CASEMATE database).  

    [2] PDF – p.13.

11. The applicant said that he ‘did a little business in Taiwan, mainly helps his parents run restaurants’. He said his wife borrowed 500,000 from a finance company to invest in stock and she lost money. The finance companies were forcing the applicant and his wife to repay the money and that they used gangsters to assist in this.

12. The applicant said the gangsters had robbed his shop and injured his wife. He said he could not ‘beat them’ and though he called the police, the police said this was a civil dispute and told him to take this to the courts. The applicant was sure the police were bribed. The gang also attempted to force his wife into prostitution and force him into drug trafficking. He was very humiliated and scared so he escaped. He said gangs are powerful in Taiwan and he fears he will not get adequate protection should he return. As recorded by the delegate, the applicant claimed:

    ·His wife borrowed money from a finance company that she was unable to repay.

    ·As a result of the unpaid debt a gang caught him and force him into drug trafficking.

    ·He was unable to receive adequate assistance from the authorities in Taiwan.

    ·The gangs are very powerful and bribe the authorities in Taiwan.

    ·He will be harmed if he returns to Taiwan.

    Assessing the applicant’s claims:

13. The Tribunal has seen a photocopy of the applicant’s passport (expiry - [in] 2027[3]). and I accept he is a citizen of Taiwan, and that Taiwan is the applicant’s receiving country. However, the mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451). That said, the applicant did not provide sufficient detail to satisfy the Tribunal (ie) that his wife borrowed money; that he and or his wife were targeted; that even if his wife borrowed money that he could not repay, he could not access adequate State protection in Taiwan; or again even if his wife borrowed money that he could not repay, why he and or his wife and/or other family members, could not safely and reasonably relocate within Taiwan.

    [3] PDF – P 24.

14. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is materially applicable to the assessment of complementary protection claims.

15. That said, based on the claims he has provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has a well-founded fear of persecution for a reason prescribed in the Act; or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk that he will suffer significant harm.

16. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of suffering serious or significant harm in Taiwan.  

    Finding:

17. For the reasons given above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

18. There is no suggestion 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

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

    Mr S Norman
    Member