1417022 (Refugee)

[2016] AATA 3373

1417022 (Refugee) [2016] AATA 3373 (23 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417022

COUNTRY OF REFERENCE:                  China

MEMBER:Amanda Paxton

DATE:23 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 23 February 2016 at 4:22pm

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of the People’s Republic of China, applied for the visa [in] August 2013 and the delegate refused to grant the visa [in] October 2014.

3. The applicant appeared before the Tribunal on 10 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted in English with the occasional assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

5. 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.

   Refugee criterion

6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘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.

18. 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

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The applicant, now [age] years, was born in Shenyang, Liaoning province, China. His family consists of his father, mother and [grandmother].  His mother works as [occupation], in a [Company], and his father now works in [a] province, in [occupation] for a factory which manufactures [products]. The applicant is currently working in a full time a position in [an] industry as a qualified [occupation] and a qualified [occupation]. The applicant arrived in Australia in 2010 as a Student visa holder.

21. The applicant’s claims can be summarised as follows. In 2008, the applicant’s father wanted to start his own business to give his family a better life. His father’s salary was insufficient to enable him to borrow money from the bank and he could not get money to start the business from friends, so he borrowed a high interest loan from a loan shark, associated with a local gang. The applicant’s father took the risk of the high interest loan because he could not find another way to get the money and he was confident he would be able to make the repayments from the business. The applicant does not know the name of the loan shark from whom his father borrowed, or anything about him because his father has never mentioned this to him.

22. The applicant’s father opened a small factory to make [products]. Initially the business went well, but it then went down because the economic situation deteriorated, especially in [that line of] work, and because too many people entered this kind of business. As a result, his father lost customers and could not make enough money to pay the workers, cover costs and make the repayments on the loan on time. His father asked for extra time to make repayments but the loan sharks are gangsters and they did not give him a chance to repay.

23. In 2009, when his father could not meet the loan repayments on time, the loan shark’s gang started making trouble in the factory, harassing his father, destroying [equipment]. This scared the workers away and the applicant’s father could not continue the business. The applicant does not know why would the gang members would destroy the factory which was the means for his father to repay, but commented that the gangsters were not educated.

24. The situation got worse and the gang started to harass the family to intimidate them into making repayments. In December 2009, some young men, “the basic level of gangster”, bashed the applicant as he was returning home from school, injuring [him]. They said they were doing this because his father had not made repayments and said that next time it will be worse, they will disable him.

25. The family did not report the bashing to the police at that time because the loan shark had connections with local police and local political people. They feared that if they reported the matter, the gang might do something more.  They reported the incident two months later, explaining the situation but the police took no action. The police did not make any record of this report. Police say that if people take high interest loan from loan sharks, they have to take responsibility because it is not legal to borrow form loan sharks.

26. His father had to close the business in 2010.

27. The loan shark’s gang threatened the family that they would kidnap the applicant to force them into making repayments. In this way they do not disabled his father through physical attack because they want him to continue to return the money. They rang his father and came to see him, saying that every month his father did not make a repayment they would chop off one of the applicant’s fingers.

28. The applicant’s parents decided to send him somewhere safe and on the advice of an agent, they sent the applicant to Australia to study in [a certain] area.

29. The gang knows that his parents are working but not making a lot of money. They insist on high payments and this makes it a very difficult life. His mother, who is not well, has to get food straight away because they take her salary. His father is now working far away from home and he cannot go home because of the gang. His grandfather has passed away and his grandmother ill. The harassment continues and the more time that passes the more money is owed and the situation gets more critical.

30. The applicant returned to China in 2011 to see his grandfather who, unconscious when he arrived, passed away a few hours later. The applicant stayed a few hours at the hospital and saw his parents there but he then left straight away so that he could not be found and harmed by the loan shark’s gang. He  went back to Beijing for a couple of weeks, where he stayed in a hotel and with friends and kept changing addresses places so he would not be caught by the gang.

31. The applicant returned again to China in 2012 to visit his sick grandmother. Shortly after his arrive, his presence was discovered by the gang, who went to his grandmother’s place and tried to break down the door to find him. The applicant escaped by jumping out the window and hiding in a water tank and then left the town immediately. The applicant did not see his mother or father during this visit to China.

32. The applicant’s family have not made any further report to the police because this loan shark has connections with the government and even with the police. They would put themselves in danger if they tried to do more.

33. The applicant keeps in touch with his parents, speaking with his mother every week, and his father every few months. His parents have put a lot of effort into sending the applicant to Australia. The applicant has a chance to help the family by supporting them. He also wants to be part of this country and he makes a contribution.

34. The applicant is owed protection because his life is at risk because of the loan shark and his gang.

    Country of reference

35. The applicant submitted his Chinese passport. On the basis of this document and the applicant’s oral evidence, the Tribunal is satisfied that the applicant is a citizen of the People’s Republic of China. The Tribunal assesses the applicant’s claims against China as his country of nationality and his receiving country.

    Assessment of claims

36. The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm arising from the criminal activity of loan sharks now or in the foreseeable future.

    Credibility

37. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

38. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

39. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

40. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

41. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

42. The Tribunal has also considered the published guidelines of the Administrative Appeal Tribunal in relation to credibility.

    9. Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the member's subjective belief or gut feeling about whether an applicant is telling the truth or not. A member should focus on what is objectively or reasonably believable in the circumstances.

    10. The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.

    11. In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant's account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant's account of past events is true. If, on the other hand, the tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct. The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant's claim for a protection visa. For example, when assessing an applicant's claims against the Refugees Convention, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists. However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.

43. In making findings of fact in this case, the Tribunal assessed the credibility of the applicant’s claims. Central to the applicant’s claims is that a loan shark’s gang will harm him to intimidate his father into making more loan payments. Central to this claim is that the applicant’s father established his own factory business in 2008 using a high interest finance  from a loan shark, but that the business started failing in 2009 and closed in 2010. At the Tribunal hearing, information was put to the applicant pursuant to s424AA that in 2009 he provided to the Department of Immigration and Citizenship highly detailed documentation in relation to his father’s employment and his financial situation for the purposes of his Student Visa application. That information included a comprehensive financial statement from the applicant’s father, information from [Company 1] certifying that the applicant’s father was working full-time for [Company 1] in the position of[occupation]. This documentation provides detail of his position and salary over the years 2007, 2008 and 2009. The documentation provides details about the company itself. The [Company 1] statements have been certified by the company as true, it is open to the Tribunal on this basis to find that the applicant’s father was employed by [Company 1] in 2008 and 2009, i.e. through the period of the claimed business was underway.

1. The applicant was advised that subject to his comments, this information would be a reason or part of a reason for affirming the decision to refuse him a protection visa. The applicant was advised that this information is relevant because it may lead the Tribunal to conclude that his testimony in relation to his father’s business and the loan shark was not credible, and that these events did not occur. The applicant was advised that this may lead the Tribunal to doubt that the applicant faces a real chance of serious harm or a real risk of significant harm from loan sharks if he returns to China which may lead the Tribunal to conclude that he is not owed protection obligations. Following presentation of this information, the hearing was adjourned to give the applicant the opportunity to consider the information.

2. In response to this information, the applicant stated that his father completed the documentation and for cultural reasons his father did not share the information he provided to the agent with the applicant. At that time his father’s main purpose was to send the applicant out of China because the situation was very bad. The applicant stated that because the factory was no longer working, his father could not use the income from the business to provide evidence of finances for the application. The migration agent told his father what documents were needed and that he should use a relative to get a company to write a salary form for him. His father did this and obtained these documents with the help of a friend who was employed at [Company 1].  The applicant stated that the department which authorises these documents is not very strict and when they saw the official stamps on the documents, they authorised them. The applicant stated that he was just a little boy at the time, and he does not know what the [company] does. It was related to a friend.

3. The Tribunal has carefully considered the applicant’s response, bearing in mind the difficulties often faced by asylum seekers. The Tribunal notes that the documentation is extensive, highly consistent, and very detailed about the applicant’s father’s history, position and income within the company. All personal identifiers are correct. The documentation showed a plausible employment progression within [Company 1] over a long period of time and covers the period from January 2007 to November 2009. The Tribunal has not seen the original documents, but the Tribunal notes that the company letterhead is correct and there are no errors in detail. The Tribunal acknowledges the existence of fraud in China. However, on the evidence before it, the Tribunal assesses the statements and employment documentation to be genuine. The Tribunal finds that the applicant’s father was employed by [Company 1] in the period during which it is claimed he commenced and ran a factory to make[products]. This leads the Tribunal to conclude that the applicant’s testimony in relation to using the finances of a loan shark is not credible and that these events did not occur.

4. In making findings of fact in this case, the Tribunal further assessed the applicant’s credibility. The Tribunal noted that the applicant was articulate, intelligent and mature at the hearing. His account of his claims was generally consistent. However, there were some notable gaps in his knowledge of events, and areas in which he was vague and inconsistent, which was uncharacteristic and implausible in this context. In these aspects, the Tribunal would have expected more information and clarity in his account given his overall insightful presentation. The Tribunal considered that these matters raised further concerns about the general credibility of the applicant. For example:

   ·     The applicant stated that he was just a little boy at the time of his visa application, and he does not know anything about the [company]. The Tribunal notes that the applicant was [over 18] years old in 2009, and the Tribunal would expect him to know what was in his student visa application. Therefore, the Tribunal would expect him to have knowledge of this business given the alleged connection to it through his father’s friend.

   ·     While the applicant provided some detail in his account of early events, such as his father’s claimed [factory] and the amount of the loan, he was vague and limited in his account of his father’s current situation. He stated that his father was working in the distant [name] Province but he did not know where he works. The applicant stated that his father does not tell him these things because he does not want the applicant to worry about anything. The applicant suggested that his father may have promised to himself that he would not tell anyone of his new job. His father did not want his son to know about his new job in case his son should get caught and told them who he worked for and then tried to get money from the company. The Tribunal notes that the applicant has been in Australia since 2010, barring two occasions where he has returned to China for short periods, and that this could account for a less contemporary knowledge of some aspects of his parent’s situation. However, the applicant speaks on a weekly basis with his mother and regularly with his father and the Tribunal found the applicant’s vagueness with respect to his father’s current situation was unconvincing.  

   ·     The applicant was very vague about the loan shark, leader of a local gang. He claimed to know very little about this person or entity, including who the loan shark is. The Tribunal would expect the applicant to have knowledge of something so central and ongoing to his protection claims, particularly as the applicant described the gang as local. Given the severity of the alleged threats, the Tribunal considers that it is not plausible that the applicant’s father has not provided further details of the loan shark to the applicant so that he could be prepared or alert, should the loan shark approach him.

   ·     The applicant was vague and inconsistent in his account of the loan shark’s current contact with his father. Initially, the applicant stated that the gang knew where his father was but when the Tribunal made further enquiries, the applicant stated that he knew where his rental property, but not his work. He later stated that they know where he is working now because their network is so big and includes corrupt government workers with connections to mafia and is involved in many things, drugs, prostitution, loan sharks, gambling. As an intelligent adult of [age] years with considerable experience, the Tribunal would expect him to have reliable knowledge of his father’s current situation in relation to the loan shark as they have a direct bearing on his protection visa claims. The Tribunal considers that the applicant’s vague and inconsistent evidence in this area raises further concerns about the applicant’s claims.

5. In assessing the credibility of the applicant’s claims to fear harm from a loan shark’s gang, the Tribunal has considered that the applicant returned to visit his grandfather, arriving in December 2011 when his grandfather was unconscious just prior to his passing away. On the basis of the applicant’s consistency in this matter, the Tribunal accepts that this was the case. However, given the Tribunal’s finding above concerning the general credibility of the applicant, the Tribunal does not accept that he then moved from place to place in Beijing, another huge city specifically to avoid detection by a loan shark’s gang in a city more than 6 hours away.

6. The Tribunal has also considered that the applicant returned to China again in 2012 to visit his grandmother, who was unwell. The Tribunal accepts that the applicant returned to his city at this time. The Tribunal considered the applicant’s response to enquiries about the claimed visit of the gang to his grandmother’s house. The applicant stated that he knew it was gang members who came to the house because who else would it be. The applicant did not know how the gangsters found out he was at his grandmother’s house, but the gang have a big network and perhaps they found out through the police. The Tribunal found this response to be vague and unconvincing, noting that it is difficult to believe that he would be identified in Shenyang, a large city of over 6 million people, and that the applicant claimed no contact with the police or anyone else. The applicant was also vague about this stay in China, stating that he “thought he then went to Shanghai for a week or two”.  Taking into account the Tribunal’s concerns about the applicant’s general, the Tribunal does not accept that the loan shark’s gang found him at his grandmother’s house and that he escaped and went into hiding in Shanghai.

7. The Tribunal has considered the applicant’s submission[1] through his migration agent that family relationships are very important in China and that the applicant’s return to China is not indicative that his life is not at risk. The Tribunal acknowledges that in the Chinese culture family relationships can be compelling reasons for action, however, the Tribunal considers that if the applicant held fears for his life, he would not have returned, however briefly.

   [1] AAT, f.26

8. In considering the applicant’s general credibility, the Tribunal has considered that he did not raise any claims to need protection from harm in China from the claimed loan shark which occurred prior to his arrival in Australia as a student in February 2010, until 2013. In response to the Tribunal’s enquiries why he delayed lodging a protection visa until 2013, the applicant stated that he was quite young and he did not know about visa matters. He explained that his visa was granted for a period of two and half years. He thought that things might change in relation to the loan shark over this period and being young, he did not think about visas or the future. When his Student visa finished, the applicant sought advice from an immigration lawyer who informed him about the Protection visa. While the Tribunal acknowledges that the applicant was a student at the time, it notes that, at [age] when he arrived, he was an adult. The Tribunal considers that if he had concerns about his need for protection, he would have sought early advice about his situation and put his claims forward at the earliest possible time. These considerations cause the Tribunal to have further doubt as to the credibility of the applicant’s claims to be in need of protection.

9. The Tribunal considered the applicant’s claim he was bashed by a group of young men to intimidate his father into paying the loan shark. On the basis of a medical report dated [December] 2009, provided by the applicant with his application, the Tribunal accepts that the applicant received a hit [from] which he sustained an injury to his [body]. However, given the Tribunal’s concerns about the applicant’s overall credibility, the Tribunal does not accept that this occurred at the hands of a loan shark’s gang. The Tribunal considered whether there are substantial grounds for believing that applicant faces a real risk of significant harm in the future by being hit for any other reason. In this consideration, the Tribunal considers that this injury may have been incurred in a violent incident, and notes that crime occurs in China. However, the Tribunal finds that this is a risk faced by the population generally and is not a risk faced personally by the applicant. The Tribunal finds that there is not a real risk that the applicant will suffer significant harm on this basis.

10. In relation to this incident,  the Tribunal also considered the applicant’s claim that his family did not go to the police at that time but went two months afterwards, at which time they did not take any action. The Tribunal considered that the applicant’s family delayed contact with the police because they feared the loan shark’s reaction, and because the loan shark has connection with the police and local government. The Tribunal has also considered that the police consider problems with loan sharks to be individuals’ responsibility. In this consideration, the Tribunal has also noted the independent advice of the Department of Foreign Affairs and Trade (DFAT) of March 2015[2], put to the applicant at the hearing, that generally speaking, China has a large, responsive and well-resourced police force. The applicant stated that this information is not correct and that many in the police force are corrupt and part of gang organisations. Taking these matters into account, and also taking into account the Tribunal’s concerns about the general credibility of the applicant’s claims, the Tribunal has difficulty believing that, given the extremity of the claimed fear from the loan shark, that the applicant and his family would not persist to seek further support from the police.

    [2] DFAT, Country Report, People’s Republic of China, 3 March 2015

11. For all of the above reasons, the Tribunal, having considered all of the evidence of the applicant in its totality, is not satisfied that the applicant is a credible witness. The Tribunal’s concerns in relation to the evidence that the applicant’s father was not running his own business at the time claimed, the applicant’s vague, unpersuasive and at times implausible explanations, all cause the Tribunal to conclude that the events described by the applicant did not occur. On this basis, the Tribunal rejects the claim in their entirety.  The Tribunal does not accept that the applicant’s father took out a high interest loan to commence a small business, that the business collapsed and he was unable to repay the loan, and that the loan shark has threatened to harm and kidnap the applicant. The Tribunal rejects the claim that the applicant was bashed by gangs on account of his father’s late loan repayments and that they went to the police who refused to take any action. The Tribunal rejects the claim that the loan shark located the applicant when he was visiting his grandmother in 2012 and tried to catch him, and that the loan sharks continue to harass his parents and will kidnap and harm him if he returns to China. On the evidence before it, the Tribunal finds that the applicant does not face a real chance of serious harm now or in the foreseeable future on this basis. The Tribunal finds that the applicant does not have a well-founded fear of persecution.

12. Having found that the applicant does not face a real chance of serious harm or a real risk of significant harm from a loan shark in China, the Tribunal has not addressed the submission made to the Tribunal through the applicant’s agent that people at risk of loan sharks providing high interest loans in China represent a particular social group for the purposes of the Refugees Convention. 

13. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

14. The Tribunal accepts that the applicant’s parents are working and acknowledges that they may have heavy financial commitments and that life is difficult because his father is working away from home and his grandmother is unwell. The Tribunal also accepts that his parents have put a great deal of effort into sending the applicant to Australia and acknowledges that the applicant has been able to provide support to his family and has made a contribution to Australia through his hard work and effort. However, on the basis that the Tribunal does not accept the applicant’s claims in relation to the loan shark, the Tribunal rejects claims that this situation is because of the role of a loan shark.

15. Having rejected the entirety of the applicant’s claims, the Tribunal finds that there are no 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 the applicant will suffer significant harm. The Tribunal finds that the applicant does not satisfy the criterion set out in s.36(2)(aa) of the Act.

16. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Amanda Paxton
    Member