2008951 (Refugee)

2008951 (Refugee) [2022] AATA 851 (4 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2008951
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Mr S Norman
DATE:4 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 February 2022 at 2:50pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – debt owed to a money lender – gambling addiction – failed asylum seeker – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 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 December 2019.
The Department delegate’s decision was lodged with the Tribunal.
The applicant attended a Tribunal hearing on 3 February 2022. The Tribunal was assisted at hearing by a Mandarin interpreter.
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, 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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Meaningful opportunity to give evidence and submissions:
The applicant said he would prefer a face to face hearing with the Tribunal. However, after considering the applicant’s claims and given the hearing was to be conducted during the coronavirus pandemic, the Tribunal decided to proceed with a telephone hearing. After then having considered the applicant’s responses at hearing, I was satisfied he was provided a meaningful opportunity to give evidence and submissions, including at the hearing.
The applicant’s receiving country:
The applicant lodged a photocopy of the bio-data page of his Republic of China (Taiwan) passport (expiry date XXX 2022[1]). Accordingly, the Tribunal accepts the applicant is a citizen of Taiwan, and that Taiwan is his receiving country.
The applicant’s claims:
[1] PDF – p.6.
At the hearing, the applicant said he first arrived in Australia in November 2017 (Working Holiday visa). The applicant (DOB: [date] – [age] years old at hearing) also said he had never married and that he resided in Taipei, Taiwan (between February 1990 and December 2019[2]). He also said he departed Taiwan lawfully.[3] As recorded by the delegate, the applicant also claimed:[4]
[2] PDF – p.9; p.43.
[3] PDF – P.13.
[4] PDF – from p.16.
The applicant also had said the gang had threatened to kill him; he believes he made a ‘big mistake’; in Taiwan the underworld organisations operate illegally and they collude with the police; he may be killed if he returned.
When discussed at hearing, the applicant explained that in May 2017, he borrowed in Taiwan NT [amount] (now approximately AUD 40,456) from a money lender. As he could not repay the debt or the interest, he was approached on at least one occasion by men sent by the money lender, and threatened with harm if he did not repay the debt. As the applicant could not earn a sufficient salary in Taiwan (to repay the loan and assist his family – being his mother, father and [siblings]), the applicant decided to travel to Australia on a Working Holiday visa in November 2017. He now wishes to remain in Australia for at least two more years to make sufficient money to repay the debt in full, and to then have sufficient savings to ‘do business’ in Taiwan.
When asked, the applicant said that in Australia he had worked almost full time since arriving (in November 2017); that he sends his family in Taiwan approximately AUD 1,500 per month; that approximately AUD 660 of that money per month is used to repay the money lender debt; and that the remaining debt is now only AUD 7,585 (approx. NT [amount]).
The interest on the money borrowed by the applicant was said to be 8% per annum. The country information before the Tribunal included that under Taiwan laws, interest is subject to the usury provisions of the Civil Code, and the highest rate currently permissible is 20% per annum.[5] Further:
Usury
Under Taiwan law:
- Any portion of interest exceeding 20% per annum is unenforceable.
- Interest on a late interest payment (including default interest) is prohibited, unless:
Given the possibly reasonable interest on the loan (8%), and given the Tribunal understood that loan sharks can be investigated by the Taiwan authorities,[7] when asked how the applicant knew the money lender was a powerful underworld figure, the applicant said that as he was a gambler in Taiwan, ‘he knew’.
[7] Taiwan Quick Take: Cops bust loan sharks - Taipei Times, 15 August 2006, accessed 31 January 2022.
Be that as it may, and as noted above, the applicant wished to now remain in Australia for at least two more years to make sufficient money to repay the debt in full, but to also have sufficient savings to ‘do business’ on his return to Taiwan. After noting the remaining money lender debt was AUD 7,585, the applicant then conceded that he currently had AUD 10,000 in savings in his Australian bank account. The Tribunal had initially discussed whether the applicant was able to repay the remaining debt from any salary he earnt in Taiwan, but given his concession about his savings, the Tribunal decided to focus its intention on the savings.
The Tribunal accepts the applicant wished to remain in Australia, in order to save even more money than he currently had. The Tribunal also accepts the applicant would wish to retain his savings in order to assist him to establish himself ‘in business’ in Taiwan. However, the Tribunal notes his current savings would more than allow him to repay the outstanding money lender debt (as he said he wished to do, and therefore avoid any harm), and though not necessarily relevant to this decision, to then possibly have enough money remaining upon which to establish himself in his former home area of Taipei, Taiwan.
The Tribunal is not satisficed the applicant has a real chance of suffering serious (or significant) harm in Taipei, Taiwan for reason of the money lender debt.
The applicant’s gambling:
At hearing, the applicant said the gambling in which he engaged in Taiwan was illegal. Be that as it may, he also said that though he continues to gamble in Australia (where it is legal), he gambles less in Australia as he is seeking to repay his debt and save money to ‘do business’ in Taiwan. The country information before the Tribunal included that Taiwan is a developed country,[8] ranking 15th in GDP per capita. It is ranked highly in terms of political and civil liberties,[9] education, health care[10] and human development. [11]
[8] World Bank Country and Lending Groups Archived 11 January 2018 at the Wayback Machine, World Bank. Retrieved 10 July 2018 - as cited in Taiwan - Wikipedia, accessed 31 January 2022.
[9] "Freedom in the World 2019". freedomhouse.org. 3 January 2019. Retrieved 22 February 2019 - as cited in Taiwan - Wikipedia, accessed 31 January 2022.
[11] "- Human Development Reports"(PDF). hdr.undp.org - as cited in Taiwan - Wikipedia, accessed 31 January 2022.
Though not wishing to make his case, and though not wishing to discuss whether the banning of the type of gambling the applicant engaged in, in Taiwan, was a legitimate State act, given the new focus of the applicant is to (words to the effect) gamble responsibly in Australia (he said he still gambles ‘for fun’ in Australia, though much less than he did in Taiwan), and given the health services that are available in Taiwan would appear to be adequate to provide him with any assistance he may need should he relapse, the Tribunal is satisfied the applicant does not have a real chance of suffering serious or significant harm in Taiwan, for any reason related to his gambling.
Other matters:
It had previously been recorded that the aforementioned money lender had forced the applicant to engage in limited ‘drug trafficking, helping them to transport and sell drugs in a bar to offset the debt’. The applicant ‘knew it was a crime and he didn’t want to participate”.’ When repeatedly asked at hearing, if the applicant had ever engaged in drug trafficking or sale for the money lender or anyone else, the applicant denied ever having done this. For the purposes of this decision, the Tribunal will accept this is correct. Accordingly, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in Taiwan, arising from actually or being perceived to have engaged, in drug trafficking or sale.
The applicant had also said inter alia he was a Catholic and an unmarried male in Taiwan. Nothing in the country information seen by the Tribunal indicated this would give rise to any harm for the applicant in Taiwan. Neither did the applicant refer to fearing harm in Taiwan for these reasons. Again, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in Taiwan, for reason of his religion or unmarried status.
Failed asylum seeker:
Amongst other things, the country information stated:
D. FREEDOM OF MOVEMENT
The constitution provides for freedoms of internal movement, foreign travel, emigration, and repatriation, and authorities generally respected these rights.
In response to the COVID-19 pandemic, authorities imposed border control restrictions. In August the Central Epidemic Command Center barred entry by children of Chinese spouses older than age six, including by those with a valid Taiwan residency permit.[12]
And:
The constitution provides for freedom of expression, including for the press, and Taiwan authorities generally respected this right. An independent press, an effective judiciary, and a functioning democratic political system combined to promote freedom of expression.[13]
[12] US DEpartment of state, 2020 Country Reports on Human Rights Practices: Taiwan, Taiwan - United States Department of State.
[13] US DEpartment of state, 2020 Country Reports on Human Rights Practices: Taiwan, Taiwan - United States Department of State.
At hearing, the Tribunal said it had found no material evidence, that failed asylum seekers (without more), would have real chance of suffering harm in Taiwan. When asked at hearing, the applicant said he did not wish to comment. However, given the evidence and findings of fact herein, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Taiwan, if returned from Australia as a failed asylum seeker.
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 has considered the alternative criterion in s.36(2)(aa). 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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mr S Norman
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.
…

by Hsin-Lan Hsu, Lee and Li, Attorneys-at-Law, 1 October 2020, Thomson Reuters Practical Law, Lending and taking security in Taiwan: overview | Practical Law (thomsonreuters.com), accessed 31 January 2022.

[10] Yao, Grace; Cheng, Yen-Pi; Cheng, Chiao-Pi (5 November 2008). "The Quality of Life in Taiwan". Social Indicators Research. 92 (2): 377–404. doi:10.1007/s11205-008-9353-1. S2CID144780750. a second place ranking in the 2000 Economist's world healthcare ranking - as cited in Taiwan - Wikipedia, accessed 31 January 2022.

[2022] AATA 851

4 February 2022

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Immigration

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