1513930 (Refugee)

The applicant, a child born in Australia to Chinese national parents, sought a protection visa based on his parents' alleged fear of loan sharks and criminal gangs in China, and the risk of revenge against him due to their inability to repay a debt. The applicant's mother's own protection visa application had previously been refused due to a lack of credibility in her claims. The delegate had concluded that the applicant did not meet the requirements for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) as there was no Refugee Convention ground for the feared harm, nor under the complementary protection criteria in section 36(2)(aa) due to the availability of state protection.

The Tribunal was required to determine whether the applicant faced a real risk of persecution for a Convention reason or significant harm upon return to China. This involved assessing the credibility of the applicant's mother's claims regarding an outstanding debt to a loan shark and a subsequent alleged rape in Australia, and whether these claims, if accepted, would lead to a well-founded fear of persecution or a real risk of significant harm to the applicant. The Tribunal also needed to consider whether state protection was available in China to mitigate any such risks.

The Tribunal found that the applicant's mother's claims regarding the outstanding debt lacked credibility due to numerous inconsistencies in her evidence, including discrepancies in the amount borrowed, the interest rate, repayments made, and the identity of the intermediary. The Tribunal also noted her failure to inform her husband about the debt and the delay in lodging her own protection visa application. Consequently, the Tribunal did not accept that the mother had an outstanding debt to a loan shark, and therefore did not accept that the applicant faced a real chance of harm from loan sharks or their associates. While the Tribunal accepted the possibility that the mother may have experienced a sexual assault in Australia, it found no basis to conclude that this incident would become known in China or cause detriment to the applicant. Furthermore, any psychological harm to the applicant from such rumours was considered speculative and not amounting to "serious harm" as contemplated by the Act.

Accordingly, the Tribunal affirmed the decision not to grant the applicant a Protection visa, finding that he did not satisfy the criteria under section 36(2)(a) (refugee criterion) or section 36(2)(aa) (complementary protection criterion).