1708249 (Refugee)

[2020] AATA 4488

1708249 (Refugee) [2020] AATA 4488 (22 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708249

COUNTRY OF REFERENCE:                   China

MEMBER:Roslyn Smidt

DATE:22 October 2020

PLACE OF DECISION:  Sydney

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

Statement made on 22 October 2020

CATCHWORDS

REFUGEE – protection visa – China – fear of harm from creditors – borrowed money from relatives and friends for an investment which failed – credibility concerns – significant inconsistencies in evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65

Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

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 and Border Protection on 27 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who is a citizen of China, applied for the visa on 21 December 2015. The delegate refused to grant the visa on the basis that he found the applicant’s claims lacked credibility and his fear of harm in China was not genuine.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6. 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.

7. 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

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence to the tribunal

9. In a written statement provided with his protection visa application the applicant stated that after returning to China from [Country 1] he pooled his savings with other people in order to make an investment. However, the investment failed and he was unable to repay the other investors.  He began to receive death threats, so he went into hiding.  He stated that he had sustained physical assault and false imprisonment, that his family had been stalked, intimidated and humiliated and his children’s education and social activities had been impacted. He sought financial support from friends and relatives, but without success. He said that he could not return to China because he would be at risk of serious harm and he could not relocate to another part of China because of household registration restrictions.

10. During his interview with the delegate the applicant stated that he had borrowed money from 10 friends and family to invest in a coal mine in Shaanxi Province, but he lost contact with the mine operator and lost the money he had invested. Shaanxi Province is located some 1600 kilometres from the applicant’s home in Fujian.

11. When asked for more information about the people who had invested in the mine the applicant responded hesitantly and provided five names but was unable to name the other seven people. Later in the interview he said that his maternal uncles and paternal aunts had also invested.

12. When asked about the problems he had experienced in China the applicant said that he had received verbal threats, but had not been physically harmed. When asked about his family he said that they were known to the investors and had been followed, but there was not suggestion that they had experienced other problems.

13. The delegate found the applicant’s inability to name the people who had invested in the mine and the lack of problems faced by his family who remained in China indicated that he had fabricated or heavily embellished his claims and did not accept that he faced a real chance of experiencing serious or significant harm if he returned to China.

14. The applicant provided a copy of the delegate’s decision to the Tribunal.

    Evidence to the Tribunal

15. The applicant attended a hearing on 21 October 2020. The hearing was conducted by telephone with the assistance of a Mandarin interpreter.

16. The applicant said that he had borrowed 2 million yuan [about $423,000 AUD] from ten friends and relatives to invest in a mine in 2002. He initially stated that some of these investors had a share in the investment while other loaned him money, but later said that all of the money was borrowed. He paid interest of 0.2 per cent interest per annum on these loans. He gave the people who loaned him the money a document stating the rate of interest to be paid, but there was no agreement on when the principal should be repaid. I noted that the interest rate appeared to be very low. He agreed that this was correct but said that the total sum borrowed was large.

17. When asked the total amount he of his investment in the mine, the applicant said he had borrowed was over 2 million yuan. He said that he had not used any of his own money or obtained funds from anywhere else.

18. The applicant said that prior to making this investment he had worked as [an Occupation 1] earning about  6,000 yuan a month. He had not invested in any projects before investing in the mine. He found out about the investment from a friend who was a businessman and lived in the same village. He said that his friend had also invested in the project which was to purchase a new mine. He did not know anything more about the project or how the set-up or ongoing costs were to be funded. He said he thought his friend would take care of these matters.

19. When asked about his agreement with his friend regarding the project he said that his friend had told him he would make 100% profit, but there was no contract or written agreement of any kind. He did not receive a receipt when he deposited the 2 million yuan in his friends account.

20. I asked the applicant when he had first experienced problems relating to the loans. He said that at the end of 2002 his friend told him that he would not be earning any money from the investment as the mine was not worth anything. He said that he had attempted to get his money back by asking his friend to repay the money, but he was in Shenzhen and he was not able to obtain more information. He did not go to the authorities or seek assistance from a lawyer or anyone else to try and recover the money.

21. I observed that the applicant had lost his investment in late 2002, but he had not arrived in Australia until 2015 and asked what had happened during intervening years. He said that he had remained in Fujian and he did not know what had happened to the mine.  I asked him to tell me about any problems he had experienced during that time. He said that people were chasing him for the money, but it was gone. I asked for more details. He said that he had continue to pay some interest and in 2015 he had decided to go overseas to earn money to try and repay the loan. He said that he was being chased and threatened every day but confirmed that he had never been physically harmed by anyone prior to leaving China. I asked if anyone in his family had experienced any problems. He said the investors were now chasing his parents and threatening them.

22. I asked the applicant when he had lived in [Country 1]. He said that he lived there for about a year in 2011. I noted that he had previously stated that he borrowed the money to invest after he returned from [Country 11] which was at odds with his evidence that he had obtained the money in 2002. He said that the had returned from [Country 1] in 2012 and he had borrowed the money and made the investment at that time, not in 2002.

23. I noted that the applicant had stated in his submissions to the Department that in addition to the money he had borrowed he had invested his own savings in the project, which differed from the evidence he had given earlier in the hearing. The applicant said that in addition to the 2 million yuan he borrowed from friends and relatives he had invested a few hundred thousand yuan of his own money.

24. I noted that the applicant’s submissions to the Department indicated that he had been assaulted and falsely imprisoned in China, which was at odds with the evidence provided at the hearing. He said that he had been harmed in China, but only in the form of verbal threats.

25. I noted that the applicant’s submissions to the Department had suggested that his children had experienced problems in China, but he had only mentioned his parents when asked about his family earlier in the hearing. He said that his son was at school in a different town, but he had been followed when he lived in the applicant’s hometown.

26. I noted that when asked to name the ten people from whom he borrowed money to invest in the mine by the delegate the applicant was only able to recall five and advised him that I shared the delegate’s concern that this appeared to suggest he might not be provided an honest account of events. The applicant maintained that his claims were true.

27. I advised the applicant that as a result of the concerns I had raised with him I had doubts about the veracity of his claims and asked if he would like to add anything. He maintained that his claims were true.

28. I reminded the applicant of that in order to entitled to protection in relation to the refugee’s criteria he needed to fear harm for reasons of race, religion, nationality and membership of a particular social group and even if I accepted his claims it appeared that his fears related to his failure to repay loans and not to any of these reasons. He responded that he was at risk of harm if he returned to China.

29. I also advised the applicant that even if I accepted his claims were true and he was at risk of harm from people from whom he had borrowed money it appeared that he could avoid these problems by relocating to another area of China. He said that the people who wanted to harm him would locate him no matter where he went. I also noted that he had previously stated that he could not relocate in China because of the household registration system and advised him that it was my understanding that these provisions did not mean that it would not be possible for him to reside and work in another part of China. He said that he would be harmed by the people from whom he had borrowed money no matter where he went in China.

    Findings of fact

30. I did find the applicant to be a truthful or a credible witness.

31. In the first place, there are significant inconsistencies in his evidence. In his submissions to the Department he said that he had pooled his savings with other people after returning from [Country 1] in order to make an investment. During the hearing he initially said that he borrowed money to invest in a mine 2002. He also said that he had not invested any of his own money in the mine. When asked to comment on his evidence to the Department he said that the investment had indeed been made after he returned from [Country 1] in 2012 and that in addition to the money he had borrowed he had invested several hundred thousand yuan of his own money.

32. While I acknowledge that it not uncommon for applicant to be confused about precisely when events occurred in the past or to have difficulty recalling some details of past events, particularly when a significant period of time has elapsed as is the case here. However, I do not accept that the problems with the applicant’s evidence can be explained in this way. I do not accept that would have repeatedly stated or confirmed that he invested in a mine in 2002 if the investment had not been made until some ten years later in 2012. Nor do I accept that he would have stated at the beginning of the hearing that he did not invest any of his own money if he had invested several hundred thousand yuan of his savings.

33. There are also inconsistencies in the applicant’s evidence regarding the problems he faced prior to leaving China. His initial statement suggested that he had been physically harmed or falsely imprisoned, that he was in hiding at some times and that his children had faced problems of some kind. In later submissions to the Department and Tribunal he said that while he had been threatened but never physically harmed or imprisoned prior to leaving China and made no mention of going into hiding. If this had been the only problem with the applicant’s evidence, I might have accepted that these discrepancies were the result of confusion or indicated embellishment rather than fabrication. However, this is not the case and while I would not have rejected the applicant’s claims solely because of these problems I find them to be a further strong indication that he is not a reliable witness.

34. Secondly, I found aspects of the applicant’s evidence unpersuasive. For example, I found his inability to name most of the people from whom he borrowed money when asked to do so by the delegate a strong indication that he was not providing an honest account of his problems. While I acknowledge that lapses of memory can occur at any time and interviews and hearings are stressful occasions, the people from whom he borrowed this money were friends and relatives and I do not accept that he would have been unable to recall most of their names when asked to do so by the delegate if his claims were true. In addition I find it unlikely that the applicant would have been able to raise such as large sum of money from family and friends to invest in a mine about which he had almost no knowledge or information, particularly at what appears to be a very low interest rate and without any agreement on when any of the principle would be repaid.

35. After considering all of the relevant I do not accept that the applicant borrowed about 2 million yuan from friends and relatives or indeed anyone to invest in a mine at any time prior to leaving China. If follows that I do not accept that he is at risk of harm from the friends and relatives in his local area because he borrowed money from them for this investment and had not been able to repay it. I believe that that he manufactured these claims in order to obtain protection in Australia.

    Is the applicant entitled to protection in Australia?

36. There is no credible evidence before me which suggests that the applicant faces a real chance of experiencing serious or significant harm for any reason if they return to China. I am therefore not satisfied that he has a well-founded fear of persecution for any of the reasons in set out in s.5J(1)(a) either now or in the reasonably foreseeable future. Nor am I satisfied that 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.

    CONCLUSION

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

38. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

39. 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

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

    Roslyn Smidt
    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.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …