1616077 (Refugee)

1616077 (Refugee) [2019] AATA 6691 (23 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616077
COUNTRY OF REFERENCE:                   China
MEMBER:Meena Sripathy
DATE:23 September 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 September 2019 at 11:28am
CATCHWORDS
REFUGEE – protection visa – China – protests against expropriation and demolition of family property for development project without compensation – detained, interrogated and beaten by police – fear of financial harm – debts to friends and loan sharks – credibility – inconsistent evidence – new claim raised at hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIMA v Rajalingam (1999) 93 FCR 220
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 9 July 2015. The delegate refused to grant the visa on the basis that the delegate did not accept the applicant was a credible witness and did not accept his claims regarding his fear of persecution and was not satisfied that the applicant faces a real chance of persecution for one or more of the reasons referred to in s5J(1)(a) or that there are substantial grounds to believe he faces a real risk of significant harm upon return to China.
The issues in this case are whether there is a real chance, if the applicant returns to China, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that he will suffer significant harm.
The applicant appeared before the Tribunal on 22 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant’s registered migration agent did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a [age] year old married man from Fujian Province, China. He indicated in his application that he has a wife, [child] and parents residing in China. He travelled to Australia [in] June 2015 as the holder of a visitor visa, on a Chinese passport issued in [2014] and valid to [2024]. He indicated one residential address in China in Fuqing City, Fujian Province from birth until his departure for Australia. He is educated to middle school level and completed a [vocational] course. He provided no details of employment history in China.
In his reasons for claiming protection the applicant stated that he was escaping persecution by the authorities. He said the authorities expropriated their land for road construction to circumvent neighbouring lands belonging to people with political influence. They had complained to the authorities, protested against the construction company and exposed the neighbour’s bribery to officials. He claims they were paid less compensation, and his family was provoked and violence was used against them. He claims he was detained, interrogated and tortured by the police. After he was released, the authorities and police closed their shop and after that he fell into financial difficulty. His parents and family asked him to leave China for fear that he would continue to fight against the authorities and put the safety of his family in danger. He was unable to move to another part of the country because his hukou and business are in his hometown. He fears harm if he returns because he would continue to campaign against the authorities for taking his land without sufficient compensation and depriving him of his livelihood.
The applicant was interviewed by an officer of the department [in] September 2016. An audio recording of the interview is included in the Departmental file, and the Tribunal has listened to a recording of this interview.
Tribunal hearing 22 August 2019
A summary of evidence provided at the hearing follows. At the commencement of the hearing the applicant advised a correction in his application regarding his education history. He stated that in addition to the 3 year [vocational] college course referred to, he subsequently completed a diploma in [subject] from [Institution].
The applicant currently lives in share accommodation paying $[amount] per week in rent. He works five days a week as [an occupation], earning $[amount] /day.
The applicant’s father, mother, [grandmother], wife and child live together in his [great grandfather]’s house in a village that neighbours his own village, but he could not name the village. He said he has not been there because they moved after the incident in January 2015 when their house was demolished. When asked where he lived from that time until he came to Australia, the applicant initially stated his home address, as provided in the application, with his wife, [child] and parents. When the Tribunal pointed out the contradiction in his evidence, he changed it and said after the incident he was detained for a period. His family went to live at the great grandfather’s house. When he was released from detention he went to live at a friend’s place in the same village as his previous home. He did not go to where his family was living because they were afraid that he would continue to fight against the government’s actions and the local people were harassing his family. So to ensure his family’s safety he stayed away from them.
Regarding his employment history, the applicant told the Tribunal he did an internship [at a workplace] and also worked in the family business. His family had a business across the road from their home, selling [products]. It was sealed off by the government authority following the demolition and they were unable to continue the business. Since then, his father has tried to earn income from collecting and selling rubbish and [a material], he does not make enough to support the family. The applicant sends money home as often as he can.
Regarding past travel, the applicant stated he put in an application to go to [Country] in around 2011. His father wanted him to study there, but he was refused a visa. He confirmed that he held a passport at that time. His current passport was issued in 2014. He had no problems applying for his passport or departing the country on this passport.
The Tribunal discussed the applicant’s claims with him. He said he left China because his life was threatened. The government proposed to expand the two lane road that went through his village into a [number] lane road. Their house was selected to be demolished to make way for the new road. They were given no notice of this. One day about 3-4 days prior to the demolition, a group of about 20 or 30 people from the State Land Bureau, Head of Police and Village Head came to their house and informed them of the plan. They were told they had no choice and had to leave. When asked if any other houses were affected, he said there was another house a few metres away but they had influence in the local government and were able to avoid the same fate. The applicant believes they bribed the officials. They may also have had good social connections, including with the gangs and so no one could give them any trouble.
The house was demolished [in] January 2015. About 20 people attended and there were two bulldozers. The applicant and his father stood in front of the bulldozers. They pulled his father away by force and put his wife and [child] in a car. The applicant engaged in a furious fight. He was taken away by the police to the police station. He was locked up and beaten. They told him to stop fighting the government. When he refused to obey they beat him more. [In] February he was released. When asked why he was released, he said they had no need to keep holding him because the building had been demolished by then. When asked if he was charged he said he was charged with obstruction to public service and physical contact with a police officer, but he was never brought before a court. When he was released he had no reporting requirements. The Tribunal noted the contradiction in his evidence, that on the one hand he had been charged with obstruction and physical contact with a police officer, and on the other hand was released because they had no basis to keep him and he was never brought before a court. He responded that the police chief in the area is very powerful and he was detained on his authority. The applicant confirmed he did not report after his release, he is not aware if any money was paid for his release and he has no documents about his detention or release.
The Tribunal asked the applicant what he did when he was released. He said his friend picked him up and he hid. When asked why he hid, he said wanted to take further action about the forced demolition and failure to pay compensation. He believes they should have been paid compensation of at least RMB [amount] on the basis of RMB [amount] /square meter and they had a two storey property but they received nothing, so he assumes the various levels of government must have taken their compensation. The Tribunal asked what steps he took after he was released. He said he did not do anything just thought about doing various things. He was thinking about suing the government or putting in an appeal. At that time he was hiding because the shop had been sealed and he owed money to different people and he was hiding from them. The whole family was dependent on the shop for income and they had no income and owed debts.
The Tribunal put to the applicant that his father was the owner of the house and the shop so why was he the person who was hiding and thinking of ways to pursue the government. The applicant said debts owed by the father in China must be repaid by the son.
The Tribunal noted that this is the first time in this application he has mentioned that he had debts he owed and that he feared harm on this basis. It asked what happened regarding these debts. He said they were harassing his family members, not letting them sleep at night, painting on the house (great grandfather’s house) that they must repay their debts. The Tribunal noted that his family had managed to remain living at the same place these past 4 years despite these actions and threats. He said they have no choice but to live there. They have nowhere else to go.
The Tribunal asked how much it cost the applicant to come to Australia. He said it cost RMB [amount]. It put to him that this is the same amount as the compensation he says they did not receive, which may lead the Tribunal to believe his father did get the compensation money and used it to send the applicant to Australia. The applicant denied this. He said they borrowed money to send him here. He said he was sent here because he would continue to fight the government and his parents were afraid he would get into trouble, and as the family breadwinner they could not afford that. Then the applicant said he did make an appeal to the Fuqing City office but nothing came of it.
At this point the applicant said he owned money to various people, going back several years. He owed around RMB [amount], the amount keeps going up. He cannot even send his [child] to school. He borrowed money from friends and loan sharks who charge high interest rates.
The Tribunal explained that it must assess whether he faces a real chance of harm in the future for one of five specified reasons, and asked the applicant what harm he fears now and from whom. He said he fears financial harm. He is afraid of the Head of Police because of his history with him where he had a physical confrontation. The Tribunal noted that he was released from detention in 2015 and able to leave the country without issue and this suggests the police have no further interest in him. He disagreed and repeated that he is afraid of this person.
He is also afraid of people in society who he borrowed money from. The Tribunal noted this claim has come very late, and he has not provided any evidence or details about the money he owes, to whom, what he has paid back and how much is owing and this may lead the Tribunal to have doubts about the veracity of this claim. When asked how much he has paid back, he said he does not know. When asked how he pays it, he said he sends money through friends and the friend gives it to his father who gives it to the lenders. He has no documentation. The lenders are the ‘people in society’ he refers to. They are not nice people. He owes around RMB [amount] still. He sends back around RMB [amount] per year approximately. The Tribunal put to him given the late timing of the claim, lack of evidence and specificity of information, the Tribunal may find it is not credible or truthful. The applicant replied that if he didn’t have this problem he wouldn’t have left his wife and child for so many years.
The Tribunal asked if there is anyone else he is afraid of. He referred again to the Head of Police. The Tribunal put to the applicant its issues arising from his evidence. It explained that while it accepts on the basis of independent information that land appropriations occur in China, the information indicates there are laws governing this and that compensation must be paid. Country information also suggests there would be documentation involved, such as a notice of demolition. The absence of documents in his case and the account he has given about what happened may lead the Tribunal to have some doubts about the truthfulness of this claim. In response he said his area is rural and such formalities are not afforded people in areas like his. The government owns the land and when they want it they just come and take it. The local officials are doing very well for themselves probably because they are benefiting from exploiting poor ordinary people like him and his family.
The Tribunal put to the applicant its issues with his loan shark claim relate to the paucity of detail, lateness of the claim, and that it doesn’t appear to come within any of the five specified reasons for harm required for the refugee criteria. The applicant said nothing further.
The Tribunal gave the applicant a period of one week following the hearing to put in any further evidence or information in support of his claims, however nothing was received.
Independent Information
The Tribunal has considered independent sources of information about issues relating to land expropriation and compensation in China in the relevant period and difficulties in pursuing complaints about such matters.
The Land Administration Law was first passed in 1986 and has been revised twice, in 1988 and 2004.[1] The law sets out general provisions relating to the administration of land in China including ownership and compensation for expropriated land. Article 2 of the Land Administration Law establishes that the state may ‘in the interest of the public, lawfully expropriate or requisition land and give compensation accordingly’.[2] Article 47 states that if the compensation referred to in Article 2 is insufficient for peasants to be resettled and maintain their former standard of living, resettlement subsidies may be increased upon approval by regional government. The article provides that compensation paid for expropriated land shall include ‘land compensation fees, resettlement fees and compensation for attachments to or green crops on the land’.[3] According to Article 47, land compensation fees ‘shall be 6-10 times the average output value of the three years preceding the expropriation of the cultivated land’. [4]
[1] Dan, L 2012, ‘China to Amend Land Administration Law’, CRI English, 25 December < Accessed 1 October 2014 <CX0D38E8E19743>
[2] Land Administration Law of the People’s Republic of China, promulgated 25 June 1986 (revised 28 August 2004), Asian Legal Information Institute website, art 2 < Accessed 11 June 2014 <CIS28533>
[3] Land Administration Law of the People’s Republic of China, promulgated 25 June 1986 (revised 28 August 2004), Asian Legal Information Institute website, art 47 < Accessed 11 June 2014 <CIS28533>
[4] Land Administration Law of the People’s Republic of China, promulgated 25 June 1986 (revised 28 August 2004), Asian Legal Information Institute website, art 47 < Accessed 11 June 2014 <CIS28533>

A 2012 Amnesty International report cites Chinese academic studies that indicate between 1991 and 2003, more than half a million families in Beijing were forced from their homes.[5] The same studies indicate that between 1990 and 2010, local authorities expropriated over 16.5 million acres of land.[6] A 2011 study by Landesa Rural Development Institute[7] found that land had been expropriated from 43.1 per cent of all rural villages since the late 1990s.[8] The same study indicated that since 2001 the number of cases of land expropriation has been steadily rising.
[5] Amnesty International 2012, Standing Their Ground, ASA 17/001/2012, October, p.5 < Amnesty International 2012, Standing Their Ground, ASA 17/001/2012, October, p.5 < Landesa Rural Development Institute is a US-based non-government organisation founded in 1966. It aims to secure land rights for the world’s poorest families.
[8] Landesa Rural Development Institute 2012, Insecure Land Rights: the Single Greatest Challenge Facing China’s Sustainable Development and Continued Stability, 26 April, Section 3 < Accessed 5 August 2015 <CIS961F9401917>
The US Department of State reports that, during 2013, disputes over land expropriation in China ‘continued to trigger large-scale clashes between police and protesters’.[9] According to Freedom House, ‘an estimated four million disputes resulting from land grabs and property demolition occur each year’, and ‘Residents who resist eviction, seek legal redress, or organize protests often face violence at the hands of local police or hired thugs’.[10]
[9] US Department of State 2014, 2013 Country Reports on Human Rights Practices – China, 27 February, Section 2b < Accessed 5 August 2015 <CIS27374>
[10] Freedom House, Freedom in the World 2014 - China, 23 January 2014, available at: [accessed 5 August 2015] <CX321620>
The DFAT Country Report for China provides the following information regarding protesters and petitioners:
3.75 An estimated 180,000 popular protests (of more than 10 people) occurred in China in 2010, the last date for which official data is available. Most protests concern land disputes, housing problems, industrial, environmental, and labour matters, and government corruption. Others are provoked by accidents or related to personal petitions, administrative litigation, and other legal processes. Duihua’s Mass Incidents Database records 13,305 incidents involving 3,396 arrests in 2017 to 31 May.
3.76 Despite recent reforms leading to improved legal protections for property ownership and compensation for expropriated land, protests and petitions related to land seizures by officials and the conduct of developers remain common in China. According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices), an estimated four million disputes over expropriated land and property demolitions occur every year. DFAT considers credible reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters. [11]
Underground banks, ‘shadow banks’ , shadow lenders’
[11] DFAT Country Report on China 21 December 2017, p24
Due to China lacking a uniform credit system, largely unregulated ‘underground banks’, ‘shadow banks’ or ‘shadow lenders’, make up a large portion of the country’s credit market.[12] Shadow lenders can be online ‘micro-lenders’ providing small consumer loans, loan sharks, as well as large schemes, which involve billions of dollars in funds. Such schemes charge high interest rates, from 10 to 15 per cent per month, up to as much as 1000 per cent in a year. Shadow lenders reportedly often have links to organised crime gangs, and use a range of tactics to enforce payment, such as intimidation, blackmail, violence and kidnapping.[13]
[12] China ‘granny gang’ jailed in lending clampdown’, Financial Times, The (FT.com) - United Kingdom, 11 August 2017, CXC90406617230; ‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 34, October 2014, CISEC96CF17389
[13] Crackdown looms for China’s online loan sharks’, Asia Times, 14 November 2017, CXC90406617642; ‘16
Country information indicates that clients of shadow lenders typically come from poor backgrounds, have limited access to formal credit, have been blacklisted by the formal banking system, or are otherwise considered to have a credit risk.[14]
[14] Crackdown looms for China’s online loan sharks’, Asia Times, 14 November 2017, CXC90406617642;
According to a July 2017 article from the South China Morning Post, ‘Under Chinese law, loans that carry an annual interest rate of more than 24 per cent are illegal.[15]
[15] ‘Chinese student who wanted an iPhone racks up loan shark debts of US$34,000’, South China Morning Post,
The shadow banking is largely unregulated in China. While shadow banking system has operated in the past with the implicit approval of the Chinese authorities, a government crackdown on shadow banking in China has taken place under President Xi Jinping.[16] Numerous recent reports were located of Chinese authorities cracking down on the operations of both large and small shadow banks and lenders, with the police arresting several thousand people in numerous cases, involving funds totalling hundreds of billions of dollars.[17]
[16] ‘Xi Jinping’s war on shadow banking spills over, rocking China’s wider financial world’, South China Morning Post, 10 February 2018, CXBB8A1DA36449; ‘With Jail Sentences and Corporate Flameouts, China Is Tackling Its Debt’, New York Times, The, 10 May 2018, CXBB8A1DA36450
[17] Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 1 October 2014, pp. 1-4, CISEC96CF17389; ‘China mounts massive crackdown on sprawling underground bank network’, South China Morning Post, 17 August 2016, CX6A26A6E8287; ‘China jails more than 1,400 in lending crackdown’, Deutsche Welle, 26 April 2013, CX320051; ‘Crackdown looms for China’s online loan sharks’, Asia Times, 14 November 2017,
CONSIDERATION
Nationality
On the basis of his evidence to the Tribunal and his Chinese passport, the Tribunal accepts the applicant is a national of China and considers China is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria.
Consideration of applicant’s claims
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 refugee 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.
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).
The applicant has advanced the following claims in the present application: he claims the government appropriated his family’s house and demolished it for a road construction. He claims they sealed off the family business and the family received no compensation. He claims he tried to stop the bulldozers on the day they came to demolish the house, and was taken into police custody, detained and beaten. He claims he was held from [January] to [February] before being released. In his written application he claimed that he complained to the authorities, protested against the construction company and exposed the neighbour’s bribery to the officials, though gave contradictory evidence about this to the Tribunal. Before the Tribunal he claimed, for the first time, that he owed substantial amounts of money to people relating to business debts and because the business was sealed, he could not repay his debtors and fears harm from them. He fears harm from the head of police and from people in society from whom he borrowed money.
The Tribunal has carefully considered the applicant’s claims, evidence and independent country information before it, and, for reasons explained below, concludes that it does not accept the applicant is telling the truth about his circumstances in the past in China. The Tribunal does not accept that his family’s land and house was appropriated and demolished without prior notice and without any compensation as claimed. It also does not accept he was taken by police, detained and beaten for trying to fight against the bulldozers when they came to demolish the property. It does not accept that he complained to the authorities, protested or exposed the neighbour’s bribery to officials. It does not accept that he will seek to complain or protest about this matter upon return to China in the foreseeable future, or that the authorities or any villagers would be interested in him for this reason in the future. The Tribunal also rejects, as lacking credibility, his claims about owing money to debtors, hiding from them and being in fear of these people if he were to return in future. A combination of inconsistencies and contradictions in his evidence, and a lack of detail, specificity and documentation relating to his claims, lead the Tribunal to find the applicant to be an unreliable witness and it does not accept that he has given truthful evidence in this application and rejects his claims on that basis.
The applicant was unable to provide a detailed, coherent and consistent account of his claims to the Department and Tribunal. In his written claims he referred to having complained to the authorities, protested against the construction company and exposed the neighbour’s bribery to the officials. However, he stated to the Tribunal that he took no action to appeal or complain, he only thought about doing various things. Only when the Tribunal pressed him further, noting he had referred to taking steps to complain and appeal in his written application, did he mention that he made an appeal to the Fuqing City office but nothing came of it. He did not provide any convincing detail about this. Given this failure to mention it earlier, the inconsistency in his account and his inability to provide any convincing detail of the complaint or appeal action taken, the Tribunal does not accept he took any protest or complaint action.
The Tribunal also has serious doubts about his claim that his family land and house was appropriated and demolished without notice or compensation. His evidence lacked any convincing detail. He claims they received no notice of the order for appropriation and demolition, and therefore has no documentation to support his claims. While the Tribunal acknowledges that land expropriation and incidents involving citizens being forced from their homes is not uncommon in China, as referred to in the independent information referred to above, it is not satisfied on the applicant’s written and oral account alone, given the paucity of detail and inconsistencies as referred to above, that this happened to him. Regarding compensation, he told the Tribunal that he would have expected to receive at least RMB[amount] in compensation, but received none. However, he also mentioned that it cost an amount of RMB[amount] to bring him to Australia. This convenient coincidence causes the Tribunal to have further doubts about the veracity and reliability of his claims.
Before the Tribunal, the applicant raised for the first time, a new claim that he owed significant sums of money to debtors because the authorities sealed their shop and they were unable to repay their debts. He referred to being fearful of these people and going into hiding after he was released from detention, and also referred to them harassing his family and vandalising his great grandfather’s house. To the Tribunal the applicant stated that he was fearful of these people in addition to the police and authorities if he were to return because he continues to owe significant amounts of money. However, no mention was made about this in his written claims and when asked for further details at the hearing about who he owes money to, how much, how much he has repaid and how much he continues to owe, he was unable to provide any further details. He was also unable to provide a convincing explanation about why and how his family were able to remain living at the same address since he has been in Australia if they were at risk of harm on this basis.
The Tribunal has serious doubts about the reliability and credibility of these claims about money owed to debtors given the lateness of the claim and paucity of specifics or convincing detail. The applicant failed to mention this matter or his fear of harm for this reason from these people in his application. He also did not mention it at the Department interview. Mindful of s423A of the Act which suggests in these circumstances the Tribunal must draw an inference unfavourable to the credibility of the claim if satisfied that the applicant does not have a reasonable explanation for why the claim was not raised before the primary decision was made, the applicant has not adequately explained nor provided credible details to substantiate the claim. Therefore, the Tribunal rejects the claim as lacking in credibility.
The Tribunal also rejects the applicant’s claims that he was taken by police, detained and beaten as a consequence of opposing the improper appropriation and demolition of the family house, which the Tribunal already rejected. These claims were vague and lacking in convincing detail. For this reason and consequent upon the other findings, the Tribunal is also not satisfied his account of claimed detention and mistreatment by the police is reliable or credible. Additionally, his claimed detention and mistreatment by police is not consistent with his ability to depart the country in June 2015 without issue, and further supports the conclusion that he has never been of adverse interest to the authorities.
Fear of future harm
For the following reasons, and having regard to the findings above, the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm upon return to China in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group or political opinion.
As the Tribunal has rejected the applicant’s claims that his family property was appropriated and demolished without notice and without payment of compensation, the Tribunal is not satisfied he has any reason to engage in any behaviour or actions to complain about this if returned in future that would bring him to the attention of the authorities or anyone else who could cause him harm.
The applicant’s ability to depart the country in June 2015 without issue supports that he was not of adverse interest to the authorities then and the Tribunal is satisfied that he is not of ongoing interest to authorities now.
The Tribunal has also rejected the applicant’s claims that he owes unspecified debtors unspecified sums of money and that his family were being harassed and had their house vandalised in relation to outstanding debts, and therefore is not satisfied that he faces a real chance of serious harm from unspecified debtors or anyone else, for any of the specified reasons in s5J(1) or any reason.
For the reasons given above, and considering the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant has a well founded fear of persecution within the meaning of s5J of the Act and therefore he is not a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). On the basis of the findings above, and for the reasons stated above, the Tribunal finds the applicant is not the subject of any ongoing adverse attention from the authorities and does not accept he will complain or protest about the improper appropriation and demolition of his family property or failure to pay compensation upon return to China, or that he owes unspecified debtors unspecified debts. Therefore, it is not satisfied that there is a real risk he will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to China. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Meena Sripathy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

> Accessed 5 August 2015 <CIS24185>

jailed in Shanghai for abusive loan schemes’, China Daily, 30 August 2017, CXC90406617652; ‘Loan Shark
Linked to Debtor’s Death Gets 25 Years’, Caixin Media, 11 May 2018, CXBB8A1DA29051; ‘China murder case shines spotlight on loan sharks’, Financial Times, The (FT.com) - United
Kingdom, 30 March 2017, CXC90406624781

‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 34, p. 8, 01 October 2014, CISEC96CF17389; ‘China jails more than 1,400 in lending crackdown’, Deutsche Welle, 26 April 2013, CX320051; ‘A Chinese Company That Lends To Borrowers With No Credit Scores’, Forbes.com, 22 March 2017, CXC90406624782
‘China's loan sharks circle in murky shadow bank waters’, Reuters, 31 January 2014, CX318682

09 July 2017, CXC90406617229

CXC90406617642

[2019] AATA 6691

23 September 2019

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Immigration

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