1410867 (Refugee)

[2016] AATA 3532

1410867 (Refugee) [2016] AATA 3532 (8 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1410867

COUNTRY OF REFERENCE:                  China

MEMBER:Meena Sripathy

DATE:8 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 08 March 2016 at 10:34am

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 Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant), who claims to be a citizen of China arrived in Australia [in] December 2004 as the holder of a [temporary] visa and on a passport issued to him by the government of the People’s Republic of China (China). He made an application for a Protection visa [in] January 2005 that was refused by a delegate of the Minister for Immigration [in] February 2005, and on review by a differently constituted Tribunal on 23 June 2005.  He appealed that decision to the Federal Court and the matter was remitted for reconsideration to the RRT. On 20 July 2006 a differently constituted Tribunal again affirmed the decision to refuse the visa. He unsuccessfully appealed that decision to the Federal Court and High Court of Australia, which dismissed his application [in] May 2008.

3. Following the introduction of the ‘Complementary Protection’ criteria into the Migration Act in March 2012, and the subsequent decision of the Full Court of the Federal Court in SZGIZ v MIAC (2013) 212 FCR 235, the applicant was eligible to have his claims assessed against the Complementary Protection criterion, and on that basis, he lodged a further application for a Protection visa [in] February 2014. That application was refused by a delegate of the Minister for Immigration [in] May 2014 and is the subject of the present review.

4. The second named applicant, who also claims to be a citizen of China and the spouse of the first named applicant, is included in the application as a member of the family unit of the first named applicant.  She also made a protection visa application, under [an alias], [in] November 2005 that was refused by a delegate of the Minister for Immigration [in] February 2006, and on review by a differently constituted Tribunal on 21 June 2006. 

   Validity of the application and the Tribunal’s jurisdiction

5. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the Tribunal has considered the applicants’ claims only in relation to s.36(2)(aa).

6. Therefore, the issue in this case is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of either or both of the applicants being removed from Australia to China, there is a real risk that they will suffer significant harm; and if this issue is answered in the affirmative in respect of one of them, whether the other applicant meets the criteria for protection on the basis of membership of the same family unit.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence to the Department

8. Information provided in the application indicates that the applicant is [an age] year old man from Fuqing, Fujian province, China.  He speaks Mandarin.  He is married. He provided one residential address in China prior to travelling to Australia in December 2004.  He indicated completion of [number] years of education to [a] school level in [year], and provided no details of any other education or employment. 

9. Regarding his claims for protection, the applicant indicated he left his country to escape from the harm and persecution by the perpetrators and their associated corrupt officials.  He stated that he had been detained on two occasions by authorities, and was threatened with death by gangsters and threatened with detention by police.  He was extorted to make payments to the perpetrators for more than he could afford at that time.  He fears harm and persecution and for the safety of his life.  He fears being deprived of his right to access social equality.

10. The applicant stated that he had a wholesale business of [product 1] for many years and then did wholesale of [product 2]. The competitors and their associated thugs came to his place for money and severely disrupted the business. In self defence he pushed the perpetrators who accused him of breaking his arm and demanded a large sum in settlement.  The police were called in and he was locked up. After making the payment and bribing the police he was released. He continued his business despite sales being disrupted. The thugs were incited to attack his family in a public place and he was then accused of making an assault on them. He was again detained and released after making payment. After this he did not have enough capital to pay suppliers and he was unable to pay the lenders on time.  He has further unpaid debts which he and his wife used to fund their trips to Australia. If he is removed to China he will not be able to pay back the debt owed to money lenders.  If he re-opens his business he will be harmed and persecuted again.

    Interview with Delegate

11. The applicant was interviewed by a delegate of the Department of Immigration in relation to the present application [in] May 2014. The Tribunal has listened to the audio recording of this interview.

    Tribunal hearing

12. The applicants appeared before the Tribunal on 9 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal took evidence from each of the applicants separately.  A summary of relevant evidence received at the hearing follows.

    Evidence from [the applicant]

13. His family comprises his parents, [siblings], wife and two children.  His parents, siblings and one child are living in Fuqing, Fujian province, China.  His parents used to operate a [business] until a few years ago. They retired because of their health and age.  They look after the applicants’ [child] and live off their savings.  His [siblings] also help the parents out with some money.  The applicant stated that he rarely sends money from Australia to his parents and [child].  The applicant stated that he does not know what his [siblings] do for a living because he has not asked them.  [One sibling] has a [spouse] and [children]. His [other sibling] is also married and has [children].  [This sibling] does not work.  [This sibling] is supported by [the spouse] but the applicant does not know what [the spouse] does, he believes it is some kind of business.

14. The applicant’s other [child] came to Australia around two years ago on a [temporary] visa.  [He/she] lives in [suburb].  They are in contact with [this child] but do not live with [him/her].  The applicant stated that he did not arrange for, or provide financial support for [this child] to come to Australia.  His father found an agent in China and he provided the financial support. 

15. With regard to his own education, the applicant studied to school level until [year].  After that he travelled to [Country 1] for several years, and studied [the language] there.  After he returned to China from [Country 1], he started a business.  This was around 2000.  His business involved wholesale [product 1] and later he moved into selling [product 2] on a wholesale basis. He rented premises and sold to people who then sold to the public. He had a licence and business registration, but does not have these documents with him.  After the interview with the delegate he contacted his father who confirmed that he has these documents.  The Tribunal asked why he has not provided them since then.  He said he did not know it was necessary.  The Tribunal indicated it will allow him time following the hearing, if he wishes to provide any documents in support.  He said he does not have any documentary evidence of his business transactions.  He bought and sold on a wholesale basis.  He would only know if he was making money every 6 months or so.  He had employees but he was the sole owner of his business.

16. The applicant and his wife have been together since [year], they married according to local custom but did not register their marriage until some years later because of their young age.  He lived in the address provided in the application from the time he returned from [Country 1], until he left for Australia.  This property is owned by his father. His father still lives there with his [child].  His father also owns another property on the same road in which his [sibling] lives, and his father has land in his native place in a rural area near Fuqing City.

17. The Tribunal asked the applicant about his religion.  He stated that he practiced Huhan Pai (Shouters) religion.  When asked if he practises this religion, he said he had debts before so he had to work to pay it back and he did not have time to practise.  When asked if he was fearful of returning to China because of his religion, the applicant said that he was afraid for both of these reasons.  When asked why he did not mention this reason in his application, he said his agent told him that he was not considered a refugee previously, but now he may be considered under complementary protection.  The Tribunal asked the applicant if he knew the reason his previous protection visa application was refused.  He said that he did not.  The Tribunal briefly explained that his claim to be a follower of the Shouters religion was not accepted as truthful, on the basis of his evidence before the (differently constituted) Tribunal.  It explained that this Tribunal may also take into consideration the evidence he gave previously in deciding whether he will face significant harm in future or this reason.

18. The Tribunal asked the applicant if he has practised religion in Australia since he came here.  He said it has been a long time but he has gone to a church.  When asked which one, he said it was inside of a cinema in the City.  He then said he went to a church in [suburb] about two months ago.  When asked what Church, he said it was a church about Jesus.  When asked what he did there, he said he moved furniture and cleaned.  He did not do anything else there apart from cleaning.  When asked if he has been to any other church in Australia, he said he has not.

19. When asked if he practised as a Shouter in China he said he did.  They had secret meetings.  They talked about how Jesus Christ helped them and saved them.  They had a pastor who told them stories from the Bible.  The Tribunal asked the applicant if there is any difference in the kind of Bible his Church used compared to other Christian groups. He said he does not know because he is almost illiterate.   When asked how people pray in his church, he said they pray about Jesus, and how he is their Lord and how he helped them.  The Tribunal asked the applicant if he wanted to say anything more about his religion. He said he does not know what else to say. 

20. When asked why he came to Australia, he said he could not remain in China because of conflicts he had in his business.  He was bullied by his neighbour.  His problems started in around 2002 or 2003.  He was operating his wholesale business, first in [product 1] and then in [product 2].  His neighbour became jealous and started to bully him.  He sent people to his shop to disrupt the business.  He had a very good business, there were many people in his shop.  One day when these gangsters were there, the applicant got angry and pushed one of the men.  The man accused him of breaking his arm. The police were called and he was taken into detention.  The police did not ask any questions, they just took him to the station and detained him.  He was kept there for one night and had to pay money to be released.  He had to pay money to the man whose arm he was accused of breaking and also to the police so that he would not be charged.  When asked how much he paid, he said he cannot recall.  His father arranged for him to be released and paid the money.  He thinks it was more than RMB 200,000 but he is not sure.  He cannot recall the date this incident occurred, other than that it was a hot day, in 2003. 

21. The Tribunal put to the applicant that his evidence about this incident is vague and lacking in detail and this may lead the Tribunal to not accept that he is telling the truth.  He said that he does not know many details because his father looked after it all, and he did not tell him how he had him released and how much money he paid. 

22. He confirmed that he was never charged with any offence after this incident because of the money that was paid.  He does not have any documents about his detention. 

23. When asked if there were any other incidents, the applicant said that the gangsters continued to harass him.  They would come to the shop and block the customers from entering.  When asked if he reported this activity to the police, he said he called the police once and told them that people are blocking entry to his shop.  The police came but did not do anything and left.  After that the applicant did not make any other attempt to report it to police. 

24. The Tribunal asked the applicant if he went to any other authorities about the problems he was having. He said he did not.  The problems continued for about one year. Then there was another incident when he got angry and pushed the gangsters. Again he was detained.  He was held for one night.  He said that the police did not do much to him in detention. They released him after one night after he paid money.  They did not charge him because they couldn’t as he did not do anything.

25. After this, the applicant said he could not survive in China.  He had borrowed a lot of money at a high interest rate to buy stock for his business.  He could not sell his stock, and had expenses of rent and salaries for his employees.  He owed about RMB [amount], including the money he borrowed to come to Australia.  He has no documentary evidence in support of the amount or type of loan he had.  All of his business transactions were on a verbal basis.

26. He came to Australia because of these problems he had with his business. He was prevented from continuing his business.  His life was put under threat.  When asked by the Tribunal what threat he was referring to, the applicant said that he had a debt.  They were preventing him from operating his business.  If the situation continued he would risk his life by fighting the gangsters. 

27. The Tribunal asked the applicant if his father experienced any difficulties operating his [business]. He said he did not have any problems. His shop was far away from the applicant’s business.  When asked why he could not work in his father’s business, the applicant said that it is not his line of work. He specialises in the [product 1] business.  When asked what kind of work the applicant did in Australia, he said he worked as [an occupation].  When it was put to him why, given that he was able to do alternative work in Australia, he could not do different work in China, the applicant did not provide a direct response.  He said he owed a lot of money in China.  He doesn’t know what he owes now and he cannot return to his old business.

28. When asked what he fears if he returns to China now, the applicant said he cannot pay off his debt.  If he returns he will have to go back to his old business and the same people will trouble him again.  He will have to fight them with weapons and this is the risk he faces.

29. When asked why he believes he will face a threat from these people after all this time, he said he called his father and his father told him that a lot of people whose businesses are going well are harassed by this same person. The Tribunal put to him that on his own evidence his father, [and two other relatives] appear to be able to operate businesses without problems, and so why can’t he go back and do the same.  The applicant did not have a direct response to this.

30. The Tribunal asked if there is any other reason, apart from his concern about not being able to repay his debt and his concern that he will have to fight people if they disrupt his business again in future, he cannot return to China. He said there is no other reason.

31. The Tribunal asked if anyone to whom he owes money has been in touch with his family since he came to Australia.  He said the gangsters are looking for him.  He said they have asked his father and [child] if he is returning.  After he came to Australia, they came to the house and harassed his wife.  She came one year later because of this.  When asked why he left his elderly parents and [children] if there was a risk of harm from these people, he said he did not know what to do because his children were young. The people want the money back from him so it is only he who is at risk of harm from them.

32. The Tribunal put to him it may not accept, having been here for 10 years now, that he has not been able to repay the money he owes.  He said that he has been sick for some time since being here and had medical costs. Also he was only able to work part time. He had to borrow money here also and was not working for 5-6 years. 

33. The Tribunal asked why he did not mention these problems in his first application for protection. He said that he recalls mentioning it to his agent but he told him not to discuss it. Last year his agent told him that these matters could be relevant claims in a new application for protection.  The Tribunal put to the applicant that his failure to mention anything about these problems in his evidence to the Department or Tribunal in the previous application may contribute to reasons why the Tribunal does not accept that they are truthful. 

34. He was asked again if there is any other reason he fears return to China now.  He said there is not. 

    Evidence from [the applicant’s wife]

35. The second named applicant confirmed that she has not made her own claims for protection. She said that her husband is the main applicant and she is just following him. He was persecuted in China and she is part of his family and so she fears return on that basis.

36. She told the Tribunal she had to leave China because of the problems her husband faced in his business.  After he left they came to the shop and harassed her.  She came to Australia on someone else’s passport [using an alias]. She made a protection visa application in that name but she does not know anything about the information on which that application was made as the agent did it all.  She does not rely on anything stated in that application.

37. She has two children, aged [ages].  She confirmed their names and dates of birth. [One child] is in Australia now, [another] one lives with [grandparents]. She said a long time ago they sent money for the children but they do not send money now. She works part time because of her health problems.

1. Her in laws support her [child] in China. They are assisted financially by her [sibling and their spouse].  She also does not know the details of what they do for a living. Her father in law supported her [child] to come to Australia on a [temporary] visa.

2. The Tribunal asked the second named applicant why she came to Australia in 2005.  She explained that when her husband was doing his business, people harassed him and he was unable to continue his business.  He went into a lot of debt and then when he left the debtors came and harassed her and so she also had to leave.  She explained that at the beginning her husband’s business was going really well. Then his neighbour got jealous and arranged for gangsters to come in and disrupt the business. Because she was not  physically present at the shop, as she was at home minding the children, she only heard about what they did from her husband. He told her people came to harass every other day.  He told here that one day there was an altercation and he broke one of the gangster’s arms.  The police were called and her husband was taken to the police station. He spent a night in detention before he was released. He was released because they paid money.  She said that they used their money from their savings for his release. When the Tribunal put to her that her husband said his father arranged the money for his release, she said that in China their money was not separate from his parents.

3. The Tribunal asked if there were any other incidents.  She said he was detained on one other occasion but she cannot recall the date. It was a similar situation, an altercation and then he was taken into detention. 

4. When asked if she or the children were ever threatened, she said that after her husband left, they came to their house and threatened her.  They demanded that the shop be closed.  The shop was still open at this time and she and her father in law were going in to try and sell off the stock.  When asked who was threatening them, she said it must have been the gangsters because the shop was still open and they did not know that they had decided to close it but were just trying to get rid of the stock. She said that after that the money lenders also harassed her because of the money they owed.  That’s why she had to leave. 

5. The Tribunal asked if anyone harassed her in laws or children. She said the children were occasionally harassed at school.  She referred to gangsters beating them and extorting them for money and threatening them that if the applicants return they will teach them a lesson. The Tribunal put to the applicant that she has not mentioned these things previously, and only seems to be adding claims in response to the Tribunal’s questions. In response she said these things happened when they were in primary school.  When they were in high school it was just rumours. She was too afraid to tell her husband about these things. Then she said, her father in law told her the children were bullied in school but she does not know the reason for this.  He told her this when she was already in Australia.

6. The Tribunal asked the applicant what happened to her. She said she was in the shop and a woman came in to buy stuff.  Then she decided not to buy it, and someone called a gangster who came and hit the applicant on the head. She called the police but they did nothing. She did not tell her husband about this incident because she knows he can be aggressive and preferred to let it go.  The applicant referred to other health problems she had after this incident but she was not sure if it was connected. After this they closed the shop because these people were spreading the word.  The shop is now closed and her husband owes money.

7. The Tribunal asked the applicant what she is afraid of now if she goes back. She said her husband cannot do his business and that is why they want to stay here. If they return they will risk their lives to fight these people. When asked why they would be interested in them after 10 years, she said these people do not let things go easily.

8. She had no other reason she cannot return to China. Then she said that her husband also claimed he was one of the Shouters before. The Tribunal asked if she knew if he was. She said he attended but she does not know the details.  When asked if she attended any churches with her husband she said she did but only occasionally and she does not have much knowledge. She does not know the name of the church, it is in the city. She only attended a couple of times in the last 10 years. 

9. When asked if she would attend any church if she returned to China, she said she has started to accept Jesus.  The Tribunal noted that she has not made any specific claims on the basis of religion. 

10. The second named applicant did not add anything more. 

11. The Tribunal asked the applicants together if they wished to add anything further. The first named applicant reiterated that he cannot repay his debt and he fears that the gangsters will find him and trouble him again. If they cause him trouble he will fight back and he will be detained. 

12. Following the hearing the Tribunal obtained information from departmental records confirming that the applicants’ [child] is currently in Australia on a [temporary] visa, granted in April 2013 and valid until March 2016.  [That child] departed Australia in June 2014 and returned in July 2014. 

13. On 12 October 2014 the Tribunal wrote to the applicants under s424A to put information to them regarding the information provided to the (differently constituted) Tribunal in the first named applicant’s previous protection visa application, and the above mentioned information about their [child].  The applicants were given relevant particulars of the information and why it would be the reason or part of the reason for affirming the decision and they were invited to comment or respond.  No response has been received by the Tribunal.

    FINDINGS AND REASONS

14. As indicated in paragraphs 2 and 4 above, the applicants have both previously been refused a Protection visa on the basis of the Refugees Convention. Applying the reasoning in SZGIZ, as endorsed in AMA 15 v MIBP, the Tribunal finds that it does not have the power to consider the applicants’ claims under the Refugee Convention criterion in s.36(2)(a) of the Act and has proceeded on the basis that it can only consider their claims under the complementary protection provisions in s.36(2)(aa) of the Act. Although the second named applicant did not make any protection claims of her own in her application before the Department, the Tribunal has considered in its discussion below, the implied claim that arose from her evidence at hearing.  

15. A summary of the relevant law is set out at Attachment A.

    Nationality

16. On the basis of his evidence to the Tribunal and his Chinese passport, the Tribunal accepts both applicants are nationals of China and considers China is the receiving country for the purpose of assessing their claims against the complementary protection criteria.

    Consideration of applicants’ claims

17. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by protection visa applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. 

18. The Tribunal is mindful 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 (1993) 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 Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

19. The applicant has advanced the following claims in the present application: his business was harassed and bullied by neighbouring competitors who hired thugs or gangsters to intimidate and disrupt and demand money from him.  He fought these people in self-defence and was accused of breaking the arm of one of them.  He was detained by police overnight and had to pay money to be released.  The harassment of his business continued, and there was another incident when he again was accused of a physical attack and was detained by police. He borrowed a large amount of money to buy stock for his business but he could not sell his stock.  He came to Australia because of the problems he had with his business.  He fears harm because he is unable to repay the debt from the loan and if he returned to his business he would face problems from the gangsters and thugs who previously harassed him. The second named applicant told the Tribunal her husband cannot return to his business because of the problems he had previously and that they would risk their lives to fight the people who would come after them.

    Claims relating to religion

20. The Tribunal notes that the applicant told the Tribunal, when asked, that he practised Huhan Pai (Shouters) religion when he was in China but he did not make claims relating to this in the present application. Despite this, as the Tribunal has before it his previous application for protection, it has considered the information contained in that application and, as detailed above, it explored with the applicant at the hearing his background in China and his current religious practice. The Tribunal also put to the applicant, pursuant to s424A, relevant particulars from his evidence to the (differently constituted) Tribunal in his earlier protection visa application.

21. The applicant’s evidence to the present Tribunal about his practice of religion in China was internally inconsistent, vague and lacking in detail.  He told the Tribunal his religion is Huhan pai (Shouter). However, when asked if he practises this religion, he first said he had debts before so he did not have time to practise because he had to work to pay it back. When asked specifically if he practiced as a Shouter in China, he said he attended secret meetings where they talked about how Jesus Christ helped and saved them. He was unaware of the kind of Bible used in the Church. When asked more questions to elaborate on his experiences in China, the applicant’s responses were vague and lacking in detail. The Tribunal has also considered the evidence he provided to the earlier Tribunal relating to his practice and knowledge of his claimed religion.  Having regard to his minimal evidence at the hearing before the present Tribunal, which was not inconsistent with the level of knowledge of the religion he demonstrated in his earlier application, the Tribunal does not accept that the applicant was a genuinely practising Christian of the Huhan Pai (Shouter) in China.  Regarding his practice of religion in Australia, the applicant told the Tribunal he has attended Church to move furniture and clean. He did not refer to any other Church attendance or religious practice in Australia now or in the recent past.  The Tribunal has also considered the second named applicant’s evidence asserting that he was a Shouter, but not knowing any details about what church he attended, and her claim to have attended with him a couple of times in the past 10 years. It found her evidence about this lacking in convincing detail and credibility.  On the evidence before it, the Tribunal does not accept that the applicant is now, or has ever been, a genuinely practising Christian of the Huhan Pai (Shouter) sect.

    Claims relating to past harm from thugs/gangsters and detention by police

22. The applicant claims that he was operating a wholesale business in China, first in [product 1] and later in [product 2] and that his business was doing very well and he had many customers.  He has provided no documents relating to the existence and/or profitability of his business.  He told the Tribunal that he spoke with his father after the interview with the delegate and he told him there were licence and business registration documents for his business, but despite the Tribunal indicating that it will allow him time after the hearing to provide such documents, he has not provided any such evidence to date.  He told the Tribunal he has no documentary evidence of his business transactions, explaining that he bought and sold on a wholesale basis and only knew if he was making money every 6 months or so.  The Tribunal has considered the applicant’s claims and explanation about the operation of his business.  While it has some concerns about his failure to provide any documentary evidence, such as business licence or registration, to support his claims regarding the existence of his business, it is prepared to accept that there may be little documentation of regular transactions and given the significant passage of time since he operated the business it is prepared to give him the benefit of the doubt and accept on his oral evidence that he owned and operated a wholesale [product 1] and [product 2] business in China prior to coming to Australia. In the absence of more specific evidence however, it does not make any finding as to the profitability of his business. 

23. He claims that a hostile and jealous neighbour arranged for thugs or gangsters to harass and interrupt his business blocking access by customers and demanding money from him.  He claims he fought with some of these gangsters and was accused of breaking the arm of one of them. He was detained by police and held overnight, and was released after paying money.  He claimed he also had to pay money to the man who accused him of breaking his arm.  The applicant claimed that the gangsters continued to harass him over the next year and then there was another incident, where he was provoked again into a physical altercation and was detained again by police. The applicant has not provided any documentary evidence relating to either of the claimed detentions or relating to how much and how he paid money to the person whose arm he is accused of injuring. He was vague and non specific when asked by the Tribunal about the amount of money paid. His explanation for this was that his father arranged for the money to be paid and did not tell him how much.  His wife, in her evidence to the Tribunal, said the money was paid from their savings.

24. The Tribunal has concerns about the truthfulness of his claims about being harassed and provoked by these gangsters and his claimed detention by police for this reason, given the limited, vague and general nature of the applicant’s evidence about this matter, and absence of documentary evidence in support.  Notwithstanding this however, given the passage of time, and the fact that it considers the described incidents are not entirely implausible, it is prepared to accept it is possible they occurred as claimed and it will proceed for the purposes of this application on the basis that they did.  Therefore the Tribunal accepts the applicant’s business was subject to harassment and disruption by hired thugs and he became involved in two incidents because of this which led to his overnight detention by police on two separate occasions, and that money was paid for his release.

25. The applicant claims that he borrowed a large amount of money to buy stock which, because of these problems, he had difficulty selling, and therefore he could not repay his debt.  He claims he left China because he could not repay his debts and fears harm from the money lenders if he returns. 

26. The applicant has provided very limited evidence to substantiate his claim of having a large outstanding debt.  He told the Tribunal he owed about [amount] RMB including the money he borrowed to come to Australia.  He has no documentary evidence in support of the amount or type of loan or of stock purchased with moneys from this loan.  The Tribunal has considered his explanation that all his business transactions were on a verbal basis. It  observes that he did not mention this issue of a problem with an outstanding loan in his earlier protection visa application.  The Tribunal does not accept as convincing his explanation that his previous agent told him not to discuss it. It observes that the applicant has been in Australia for over 10 years now and has during that period had the opportunity to work and earn income while here. In this regard, it has taken into consideration his claims that he was sick for some time and had medical costs, was only able to work part time, incurred debts here in Australia, and had 5-6 years of not working, but in the absence of evidence to support these claims, such as medical reports or tax returns or any other relevant documents, it does not accept that he has not, in the 10 year period, had opportunity to repay any or all of his outstanding debts. The Tribunal also takes into consideration his evidence that his father’s business continued without any problems in this period. If he had outstanding debts, the Tribunal would think it reasonable his creditors would have sought repayment from his relatives there. It does not accept his claim that the gangsters were in contact with his father and [child] looking for him, and considers if they did they would have sought repayment from them.  The fact his [child] has travelled to Australia on a [temporary] visa and returned home for a visit in 2014 is also not consistent with the strained financial circumstances the applicant claims in respect of himself.  The Tribunal has doubts about the applicant’s claim that his father provided the financial support for his [child’s temporary] visa. Taking into account all of the evidence before it, and the considerations referred to above, the Tribunal does not accept that the applicant has a significant outstanding loan owing in China, or that anyone is pursuing him in relation to repayment of money. 

    Fear of future harm on the basis of past detention experiences, unpaid debt, religious activities, or for any other reason

27. The issue for consideration is whether there are substantial grounds for believing there is a real risk the applicant will face significant harm in the foreseeable future in China because of his past business experiences, outstanding debts owed, religion or for any other reason.

28. The Tribunal has accepted that the applicant experienced problems with hired thugs who disrupted his business and provoked him into fights, for which he was detained on two occasions in the early 2000’s prior to coming to Australia.  He has now been in Australia for over 10 years.  His business in China has long since closed.  He has not indicated that any of his family members living in China have had any problems relating to these incidents in the recent past.  For all of these reasons, the Tribunal does not accept that the applicant will face a real risk of significant harm in the foreseeable future in China because of his past business experiences or having been detained overnight previously.

29. The applicant has made contradictory claims about whether he intends to re-open his business, stating at one point that he cannot return to his old business and then that he will have to go back to his old business and the same people will trouble him.  Given the passage of time since he left China and since he had his old business, the Tribunal does not accept that the applicant can or will re-open the same business he previously had in China.  It also does not accept, given the passage of time and absence of any recent contact from any creditors that anyone would pursue him if he were to open a new business.  Therefore, the Tribunal does not accept that the applicant will face a real risk of significant harm from past creditors in the foreseeable future on the basis of running a business in China.

1. Regarding his fear of harm on account of his association with Huhan pai religion, the Tribunal has found he is not a genuine practitioner of Huhan pai, or any religion in China or Australia. For this reason, the Tribunal does not accept that the applicant will face a real risk of significant harm in the foreseeable future in China on this basis. 

2. Regarding his claimed fear of harm on the basis of outstanding debts in China, the Tribunal has rejected his claim that he has an outstanding debt in China or that anyone is pursing him for repayment of money in China.  Having rejected this claim, the Tribunal is not satisfied the applicant will face a real risk of significant harm in the foreseeable future in China on this basis.  

3. The applicant referred to a fear of being deprived of his right to access social equality.  In respect of this claim, the Tribunal has considered the applicant’s fear of being unable to earn a livelihood in China in future because of his past experiences.  The Tribunal finds that financial hardship, unemployment or being unable to earn a livelihood do not come within the meaning of ‘significant harm’ for the purposes of this criteria and therefore it is not satisfied there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm for this reason, if he is returned to China. 

4. Having considered the applicant’s circumstances singularly and on a cumulative basis, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm because of his past business experiences, because of any outstanding debt owed by him, his religion, or for any other reason.  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   Second named applicant’s claims

5. The Tribunal has also considered the second named applicant’s evidence to the Tribunal that she fears harm because she is part of her husband’s family and that they will risk their lives to fight the people who come after them if they go back.  Having regard to the findings made above of the real risk of significant harm in the foreseeable future in China to the applicant because of his past business experiences or from past creditors on the basis of running a business in China, the Tribunal also does not accept that anyone will fight them if they re-open a business in China.  For these reasons, it is not satisfied that there are substantial grounds for believing there is a real risk the second named applicant will suffer significant harm for this or any other reason, if she returns to China.

6. The Tribunal finds also that neither of the applicants’ are able to satisfy the criterion set out in s.36(2)(b) or (c).

7. As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

8. The Tribunal affirms the decision not to grant the applicants Protection visas.

   Meena Sripathy
   Member

   
   

   RELEVANT LAW

9. 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, the applicant 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.

   Complementary protection criterion

10. 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 a protection 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 the applicant 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’).

11. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

12. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

13. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

    Member of the same family unit

14. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include partner.