2010740 (Refugee)

[2021] AATA 5227

2010740 (Refugee) [2021] AATA 5227 (24 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2010740

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Christine Cody

DATE:24 November 2021

PLACE OF DECISION:  Sydney

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

Statement made on 24 November 2021 at 2:42pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – failed business – came to Australia to repay bank debt – no fear of harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
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 23 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who claims to be a citizen of Taiwan, applied for the visa on 9 September 2019. The relevant law is set out in Annexure A.

   The Departmental file

2. The applicant submitted a protection visa application as well as a copy of his passport identification page issued 12 July 2019.

   Application form

3. According to his application form, the applicant is aged [age] years. He was born in Taiwan.  His religion is Buddhism. He has never married.

4. He left Taiwan [in] August 2019, legally, arriving in Australia on the same day with a visitor visa. He suggested that he had never been employed. He made claims that: he had been discriminated against and persecuted by gangsters in Taiwan, who threatened that he should pay protection fees to protect his house and other property, failing which they would destroy his property. He sought help from the authorities, who are corrupt. He could not relocate because there are so many gangsters. If he returns, he will be subject to arson and threats.

   The delegate’s refusal of the application

5. The delegate noted that the applicant had been given numerous opportunities to provide details of his claims, but he had not done so. The delegate also referred to country information and did not accept that the applicant was a refugee or entitled to complementary protection.

6. There are no non-disclosure certificates on file.

   The Tribunal

7. The applicant applied to the Tribunal for review, providing a copy of the delegate’s decision record and notification of refusal. He was requested to provide any relevant documents or information to the Tribunal as soon as possible.

8. The Tribunal considered it was reasonable to conduct the hearing by MS Teams videoconference or telephone during the period of the COVID-19 pandemic restrictions in NSW in November 2021 and the applicant agreed to the hearing taking place in this manner. He was invited to attend a hearing on 19 November 2021.

9. On 18 November 2021 the Tribunal was provided with a Response to Hearing Invitation which confirmed that the applicant did not expect any difficulties arising from participating in the hearing in this manner, and that he would be attending.

10. The applicant gave his evidence with the assistance of an interpreter in the Mandarin language. The Tribunal was satisfied that the applicant understood the proceedings and was able to give evidence and present arguments.

11. The Tribunal put to the applicant at hearing that, although it had not made up its mind, it has concerns that his claims may not meet the definitions of refugee or complementary protection. Further relevant evidence is referred to below.

    CONSIDERATION OF CLAIMS

    Country of reference

12. The applicant produced a passport to the Department, which shows that he is from Taiwan. The Tribunal accepts that the applicant is a national of Taiwan, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Taiwan.

    The issue

13. The issue in this case is whether the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    The applicant’s evidence as to his circumstances in Taiwan

14. The applicant was asked about his circumstances in Taiwan. His mother and brother live in the family home where he has resided all of his life; they have continued to live there ever since he left. His brother works in restaurants and now perhaps he is working in sales; he hasn’t been in contact with him for a while. He is in contact with his mother; she is a housewife but sometimes she sells things.

15. The applicant worked jobs in [services], until he started his own [business] in Taiwan making and selling [products] in March 2018.  He continued to work in his business until May 2019 when it closed because business was not good. He then worked in all sorts of [jobs].

    The applicant’s written protection visa claims

16. When the Tribunal asked the applicant whether his protection visa application was true and correct, he said that he did not really understand how it worked as he had an agent who was sorting out everything for him. The Tribunal asked what he told the agent to put in his protection visa application form, and he said that he had no idea what the agent wrote. When asked whether he told the agent to put any claims in there, he said no he didn’t, he only told the agent he was going to apply for a protection visa, but they had never talked about the grounds or the contents.

17. Finding: The Tribunal is prepared to accept that the applicant did not know what claims were made in his protection visa application form. The applicant did not make any such claims at hearing and the Tribunal finds that the written protection visa claims as to his past harm, experiences and future fears are not true or relevant.  

    The applicant’s concerns

18. The applicant told the Tribunal that he doesn’t want to go back to Taiwan now; he wants to stay in Australia to earn money and pay off his bank loans. He said that he had taken out a loan of [Amount 1] Taiwanese dollars (TWD) (about AUD[amount]) in around April 2017 from a bank in Taiwan, which he used to start up his [business]; his mother also borrowed [Amount 1] TWD from the bank that she contributed so that he could fund his [business].  He said that he is responsible for the borrowings from the bank equivalent to about AUD[amount]. In total, he spent the equivalent of about AUD[amount] on the business, including renovations.

19. He has been earning money in Australia, working [on farms], and repaying the banks. The debt to the banks is now reduced to TWD[amount], which is about AUD[amount]. The reason he came to Australia was to earn money to repay his debts to the bank.

20. The applicant said that he is worried that if he returns, he would not be able to find a job in Taiwan and he would not be able to pay the debt off quickly. If he could not pay the loan off on time, given the amount of debt, he would be chased after by debt collection companies. He said he would not like that, but he did not suggest that they would seek to cause him any harm. His reasoning was that he doesn’t like that sort of lifestyle, where he owes money to debt collection agencies, and he likes the lifestyle and work style here, and he feels “more free” here. He doesn’t want to be a burden to his mother, and because he likes Australia, he would like to stay here to earn more money.

21. He said these are his concerns about returning to Taiwan. 

    Finding on the applicant’s claims

22. The Tribunal is prepared to accept that the applicant borrowed money from a bank, and organised for his mother to do so to, in order to start his business.

23. He told the Tribunal that before he came to Australia, he had been earning about AUD[amount] per year in Taiwan.  The Tribunal put to him that it seemed like a big risk to spend 4 times his annual salary on a busines. He agreed that this was risky, but it had been a dream he had had for a long time. The Tribunal accepts that the applicant’s business failed, and that he decided to come to Australia to work to pay off the debts.

24. The Tribunal does not accept that the applicant fears that he will not get a job in Taiwan, nor that he fears that there are not that many options for a person like him as he only finished high school, nor that he fears being a burden on his mother. As put to him, he has been very resourceful, always finding jobs in Taiwan (even after his business failed and before he came to Australia) and finding jobs in a country where he initially, barely, spoke the language. The Tribunal put to the applicant that his evidence appears to be that he wants to stay in Australia to earn more money, but that it would seem that he could go back to Taiwan, and even if he did not pay off the debt as quickly as he could here, he could still enter into arrangements with the debt collection company and pay off the debt. The applicant agreed. The Tribunal put to him that it does not appear that he faces a real chance of serious harm or a real risk of significant harm if he returns to Taiwan and he agreed.

25. The Tribunal discussed the law relating to refugee and complementary protection with the applicant. It put to him its concern that, on the evidence before it, he does not appear to have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion; further it did not appear 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 the applicant will suffer significant harm.

26. The applicant said he understood. He added that he liked the working environment, and he gets to meet people from diverse backgrounds in Australia, which is a positive experience, and he gets to learn and improve his English. The Tribunal said that it understands his reasons but that they do not seem to fit within the criteria required for the visa that he has applied for. He agreed.

27. The Tribunal has considered the applicant’s claims individually and on a cumulative basis, The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. There is nothing to suggest that he has a well-founded fear of persecution for any reason listed in s 5J(1) of the Act. The Tribunal finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him.

    Complementary protection

28. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).

29. The Tribunal considers that, if the applicant goes back to Taiwan, he will have to find a job and continue repaying his debts. There is no suggestion that he faces a real risk of significant harm for any reason, and as noted above, the applicant agreed with this.

30. On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Taiwan, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    Conclusion

31. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

32. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

33. 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 criteria in s 36(2).

    DECISION

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

    Christine Cody
    Member

    
    

    ANNEXURE A - 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 (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.

    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 below (see Annexure B).

    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 below (see Annexure B).

    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.

    Annexure B

    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.

    …