1722173 (Refugee)
[2021] AATA 4372
•3 September 2021
1722173 (Refugee) [2021] AATA 4372 (3 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1722173
COUNTRY OF REFERENCE: China
MEMBER:Frank Russo
DATE:3 September 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 3 September 2021 at 6:26pm
CATCHWORDSREFUGEE – protection visa – China – fear of harm from loan shark for gambling debts – threats and assaults – credibility – inconsistent claims and evidence about gambling and debts – false information provided in previous student visa application – inconsistent personal information provided – worked without paying tax while unlawful non-citizen – delay in applying for protection – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5J(1), 5H, 5L, 36(2)(a), (aa), 65, 424AA, 437, 438
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
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 dependants.
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 and Border Protection on 11 September 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of China, applied for the visas on 17 May 2017. The delegate refused to grant the visas on the basis that the delegate was not satisfied the applicants are persons in respect of whom Australia has protection obligations.
The primary review applicant (the applicant) is a [Age 1]-year-old Chinese national. The second-named applicant is the applicant’s de facto spouse, a [Age 2]-year-old Chinese national.
The hearing was held during a period of extended restrictions across Greater Sydney, as a result of the COVID-19 pandemic. On 23 July 2021, the Tribunal telephoned the applicant to ascertain whether, in light of the restrictions associated with the COVID-19 pandemic, he was able to attend a hearing by way of video conference. The applicant indicated that he was able to attend a video hearing.
On 28 July 2021, in accordance with measures introduced in response to the COVID-19 pandemic[1], the Tribunal invited the applicants to attend a video hearing on 18 August 2021.
[1] COVID-19 Special Measures Practice Direction – Migration and Refugee Division, 2 March 2021
On 29 July 2021 the applicant provided a response to the hearing invitation and requested that the hearing be conducted by telephone rather than by video. The Tribunal agreed to the request to conduct the hearing by telephone.
The applicant appeared before the Tribunal by telephone on 18 and 24 August 2021.
The Tribunal determined it was reasonable to hold the hearings by telephone, having regard to the nature of the case, the evidence on the file and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The Tribunal hearing was conducted with the assistance of interpreters in the Mandarin and English languages.
The Tribunal was satisfied the applicant could satisfactorily hear the Tribunal and could satisfactorily hear and understand the interpreters during the hearing.
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 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).
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.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
The issues in this review are whether the primary applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the primary applicant being removed from Australia to China, there is a real risk that he will suffer significant harm, and whether the secondary applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) and who holds a protection visa.
The applicants provided with their application for review a copy of the delegate’s reasons for decision and the notice of this decision from the Department, as well as a response to the hearing invitation.
The Tribunal also has a copy of the Department file and has had regard to the documents on that file.
The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about China.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
No non-disclosure certificate on file
As a preliminary matter, the Tribunal notes that the ‘Non-disclosure checklist’ which is contained on the Department file (and which is routinely included in all Department files for applications for review of decisions not to grant a Protection visa), states that a relevant certificate of non-disclosure has been attached. In addition, within the nin-disclosure checklist there is no response to the question whether there are any s.438(1)(b) related documents/information on the file (although it does confirm that there are no s.437 or s.438(1)(a) related documents/information on the file).
After considering the documents on the Department file, the Tribunal noted that no non-disclosure certificate had been placed on the file, and formed the view that there were no documents or information on this file which could form the basis of a non-disclosure certificate issued under s.438(1)(b) of the Act.
On 18 August 2021 the Tribunal wrote to the Department to ascertain whether a non-disclosure certificate had been issued or was required to be issued in relation to information or documents contained on the Department file. On 19 August 2021 the Department confirmed that all documents on the Department file had been re-checked and there are no documents requiring the issue of a non-disclosure certificate, and that it appeared that the ‘Yes’ response in relation to the question ‘Is a relevant certificate of non-disclosure attached?’ had been circled in error.
The Tribunal is accordingly satisfied that no non-disclosure certificate has been issued in respect of any information or documents relating to this application for review.
Identity
The applicants provided copies of their Chinese passports to the Department. On the basis of this information and without any information to the contrary, the Tribunal accepts that the applicants are who they claim to be, that they are nationals of China, which is also their receiving country.
The primary applicant claimed at the hearing that he did not have a right to enter and reside in any third country. There is no evidence to suggest that he nor the secondary applicant may have a right to enter or reside in any third country. On the basis of the information before the Tribunal, I accept this and find that the applicants do not have a right to enter and reside in any third country.
Claims
Claims made with visa application
As noted above, the applicant is a [Age 1]-year-old Chinese national, and the second-named applicant is his de-factor partner, a [Age 2]-year-old Chinese national.
At Part B of the application form (Persons included in this application and family composition), at Question 2 (Details of persons included in this application), the applicants’ names and birth dates are listed. In the far right of the table of information, in response to the question ‘Applicant raising their own claims for protection’, the ‘Yes’ box has been ticked for both applicants. However, the Tribunal notes that a Part C form has been provided only for the applicant and not for the second-named applicant (whose details were included in a Part D form). The second-named applicant therefore did not provide any responses to Questions 88 to 96 of Part C, and no additional details were provided in an attachment.
At Question 89 of his Protection visa application form (Part C), in response to the question as to why he left China, the applicant provided the following details:
In debt because of gambling. Unable to pay the principal and the huge interest. The money lender threatened to hurt me badly.
In response to Question 90 (What do you think will happen if you return to that country(s)?), the applicant stated:
They will beat me and even kill me.
In response to Question 91 (Did you experience harm in that country(s)?), the applicant stated:
The lender gathered some rogues to hit me and bully me. They threatened to cut off my hand.
At Question 92 (Did you seek help within the country(s) after the harm?), the applicant ticked the ‘Yes’ box and stated:
I asked the local police. They just let me registered and sent me home.
At Question 93 (Did you move, or try to move, to another part of the country(s) to seek safety?), the applicant responded as follows:
I can’t since I have no friends or relatives in other places.
At Question 94 (Do you think you will be harmed or mistreated if you return to that country(s)?), the applicant ticked the ‘Yes’ box and stated:
They will hit me again and threaten my life.
At Question 95 (Do you think the authorities of that country(s) can and will protect you if you go back?), the applicant ticked the ‘No’ box and stated:
The local police ignores these violence and they just don’t care.
At Question 96 (Do you think you would be able to relocate within that country(s)?), the applicant ticked ‘No’ and stated:
I don’t have friends in other places, nobody can help me.
The applicant did not provide an attachment with further details, and no supporting documents were provided, other than copies of the applicants’ passports.
Departmental interview
The delegate’s reasons for decision record the applicant attended an interview on 31 August 2017, unaccompanied.
As to any claims made by the second-named applicant, the delegate’s reasons for decision records the following:
[The applicant] … was asked several times if his de facto spouse who did not attend, had any claims of her own. He stated that she did not. The question was asked in various ways to confirm that she was included in his application as his de facto spouse only, and that she had no personal fears of her own regarding her return to China.
The delegate’s reasons for decision record that the applicant confirmed that both he and the second-named applicant are from Fujian Province, China, and that they did not know each other before meeting in Sydney. They had been in a de facto relationship for close to three years. Further testimony that the applicant gave at the interview is sumarised under the heading below.
Family composition
The delegate’s reasons for decision record that the applicant was asked questions about his family composition, which is recorded under the heading ‘Fraudulent Family composition’ in the reasons. The delegate noted that no information about the applicant’s family composition was recorded in his application form (at folio 43 of the Department file), and at the interview he provided the following details:
a.His father was named [Mr A], was born around [Year 1] and died in February 2012 from lung cancer;
b.His mother, [Ms B], was born around [Year 2] and died in August 2016 from bone cancer; and
c.His sister is [Ms C], was born around [Year 3], has two children and lives in [Village 1] in Fujian Province.
The delegate put to the applicant that with his earlier Student visa application, he had provided a personal loan statement (a copy of which is contained at folio 50 of the Department file), which recorded that his father is [Mr D], who borrowed 400,000 RMB for ‘his son [the applicant] to study abroad.’ In response, the applicant stated that [Mr D] is a real person, who his parents had arranged to provide a guarantee, but was not related to the applicant or his family.
The delegate also put to the applicant that in his Student visa application, he recorded having a sister named [Ms E], born in [Year 4]. The applicant stated that he apologised for this false statement, that he did not have such a sister, and that it was part of his fraudulent Student visa application. When asked why these fraudulent details were provided, the applicant stated that his own sister was too young at the time and had no understanding of the matters. The delegate was not satisfied with this answer, did not speculate as to the reasons for this deception, but noted the applicant’s willingness to perpetrate fraud on the Australian government to achieve his ends.
Financial circumstances
The delegate’s reasons record that the applicant provided the following additional information regarding his financial circumstances:
a.The applicant estimated that he had sent around $120,000 AUD to China in the 9 years since arriving in Australia;
b.That he had always worked until lodging his Protection visa application, and that whilst he was in Australia unlawfully (from 2010 to 2017), he did not pay any taxes on the money he earned;
c.He sent approximately $10,000 AUD per year (and therefore a total of $90,000 AUD) to his parents for medicines, while they were ill. Of that, approximately $3,000 AUD was put towards his gambling debt each year;
d.He had totally repaid the loan taken out to secure his Student visa and flight to Australia;
e.He still owed about 200,000 RMB (which the delegate’s decision recorded as the equivalent of $38,373.61 AUD) to the money lender for his gambling debt.
Claims to gambling debt
In relation to his claims to have acquired a gambling debt in China, the delegate’s reasons state that the applicant struggled to explain how his gambling debt was created and grew, and despite several requests and prompting, continued to talk in general terms
The applicant provided the following additional claims:
a.He started gambling at cards on a small scale after graduating from high school in June [year];
b.By mid-2007, his ‘friend’, whom he also referred to as ‘[Mr F]’, told him that he owed a lot of money;
c.His family knew this person and paid him off, as the lender also had people to pay;
d.He did not owe very much, but the ‘interest’ made it worse. He estimated that he owed about 250,000 RMB (which the delegate’s decision estimates as being equivalent to $47,967.54 AUD);
e.Since the death of his mother, he had inherited his family’s home, which was standing empty. The applicant indicated that there would be no point in selling the home as it would not cover the growing debt. He stated that family members would probably not allow him to sell it, as it was his ancestral home, and the only thing he had to remember his parents by;
Claims to violence and threats
The delegate’s decision records that the applicant stated that he had both been threatened personally and that threats were delivered to his parents, who relayed them to him. He stated that the money lender had spoken to his mother before she died. The delegate asked whether that implied he had not heard from the money lender for over 12 months. The applicant responded that he would not contact the money lender, because if he did, the money lender would talk about the money owed. He confirmed that the money lender had never contacted him while in Australia, as he was unable to do so.
The applicant was questioned about the incident of physical harm that was outlined at Question 91 of his Protection visa application. The applicant stated that he was assaulted and hit on the head with wooden sticks. When asked where this took place, he stated that his parents were present and they tried to diffuse the situation by paying small amounts of money, and that this occurred three or four times from February 2007. He stated he never suffered broken bones and he never sought medical attention, but a moment later, stated that he meant to say that he had sought medical attention. He did not refer to his written claim that he was threatened with amputation. He stated that he had told the money lender he would report him to the police ‘to scare him’, but did not do so. He stated that he went to the police after the second assault and was told that he had no case, as he ‘just owed money’.
Delay in lodging Protection visa application
The applicant was asked about the delay of over 9 years in lodging a claim for protection, after his arrival in Australia. He stated that he had to keep earning money for his parents. He stated that now both of his parents had died, he was afraid of returning. The delegate considered this response to be vague and evasive.
The delegate overall found the applicant had to be coaxed and prompted to obtain minimal information. The delegate was mindful that the claimed events had occurred some ten years before, but did not find the applicant’s narrative convincing or genuine.
Evidence at the hearing regarding preparation and contents of application
At the hearing the applicant gave evidence that he remembered making the Protection visa application, although he stated he did not remember the details. He stated that he checked the application form online and tried to fill it out himself, but as it was in English, he couldn’t understand it, and so he asked a friend to help him.
When asked whether he or his friend filled out the form, the applicant stated that he filled it out himself, and he just asked his friend to double check the information for him. The applicant confirmed that he was aware of the contents of his application form, and stated that he applied for the Protection visa because he had a gambling problem which resulted in him owing people money. He stated that the contents of the application are true and correct.
When asked whether he wished to make any changes to his application form or add to the claims which are made in his application form, the applicant at first stated that he did not understand the question and wanted to know why the Member would ask him if he wants to change his application form. The Tribunal explained that it asks this question of Protection visa applicants at every hearing, and it was designed to see if the applicant is making any additional claims, or wishes to change any information set out in his application form. The applicant stated that he did not think he needed to change anything, and that he could not really remember the details of the form as it was filled out a long time ago.
Evidence regarding the applicant’s background
The applicant gave evidence that prior to arriving in Australia he lived at [number][Village 2], [Town 1], Fuqing City, Fujian Province. The Tribunal asked whether there was a particular road or street that he lived on, to which the applicant responded that there wasn’t, as it was a rural area, and in the village each of the houses is just given a number. He confirmed that this was his hukou, and stated that he lived there for about seven to eight years. He confirmed that he was living there immediately prior to coming to Australia.
The applicant stated that prior to this he lived at another place in Fuzhou City. He stated that he could not remember the address, as it was 20 years ago, when he was quite young. When pressed for further details, he stated that the address was in town, and it was in a place called the Gulou District.
The applicant confirmed that he is in a relationship with [the second-named applicant], , and stated that they met in about 2013 or 2014. At first he stated that they are married, but after further questions, he clarified that they had not had a civil ceremony or other marriage ceremony, and that they are in a de facto relationship. He confirmed that the second-named applicant is also from Fujian, from the same town and city as him, but a different village, which he stated was called [Village 3]. The Tribunal notes that there is a [Village 3] in [Town 1], Fuqing City. He confirmed that they have no children.
The applicant told the Tribunal that both of his parents have passed away, and that his father’s name was [Mr A], and that he passed away in February 2012. His mother’s name was [Ms B], and she passed away about June-August 2016. He has a sister named [Ms C], who is [Age 3] years old and lives in [Village 1] in Fujian Province.
The applicant gave evidence that he completed high school in [year] at [Town 2] High School. He stated that after finishing school he was ‘doing business’ with fruits. He then clarified that by this he meant that he worked in a fruit shop.
The applicant confirmed that he arrived in Australia in April 2008 by plane. He stated that he could not remember which airport he had travelled through as it was a really long time ago, but then stated that he kind of remembered that he took a plane from Hong Kong to Australia, and that prior to that he had taken a flight from Fujian to Hong Kong. He stated that he knows he had a flight transfer. He confirmed that he travelled with his own passport.
When asked why he came to Australia, the applicant stated that it was because he had a bad gambling habit and he owed money to a lot of people who wanted to harm him, and so he ran away from the situation. He confirmed that he entered Australia holding a Student visa. When asked what courses he was enrolled in, he stated that he was enrolled in a TAFE course like [Subject 1], and before that he was enrolled in another course, but he does not remember the name of it. He stated that he doesn’t remember having completed any courses or obtaining any certificates. When asked whether he commenced either of these courses, he stated that he had definitely started the [Subject 1] course. He stated that he stopped studying in May or June 2010. When asked why he stopped studying, he stated it was because people came to his parents’ home and threatened his parents as they wanted the money owed to be repaid. He stated that he had no choice but to work to make some money.
The applicant stated he started working for a [Workplace 1] in 2008, where he worked until about May or June 2010. Following this he did casual jobs, such as [Occupation 1] and ‘helping with renovations’. He stated that he was not working at the time of the hearing because of the COVID-19 pandemic. He stated that he had last worked three months before the hearing, and that he had been working as [an Occupation 1]. He stated that at the moment it is hard to find jobs because of the lockdown. He stated that his partner was also not working at the time of the hearing, and that she had last worked about three months ago at a [Workplace 1].
The applicant stated that his Student visa and travel to Australia had been organised for him by his parents, who had arranged for someone else to apply on his behalf. When asked how much his parents had paid for the visa and flights to come to Australia, he stated that he thinks it was more than 100,000 RMB.
Applicant’s claims for protection
The Tribunal noted that the applicant’s claims in his application were that he was in debt because of gambling, and that he was unable to pay the principal and the huge interest, and the money lender threatened to hurt him badly, and that he fears that if he returns to China he will be beaten or killed. The applicant confirmed that this was a correct summary of his claims and that he was not making any additional claims or claiming protection on any other basis.
As noted above, the applicant confirmed that the second-named applicant is not making any claims of her own, and has been included in the Protection visa application because she is his de facto partner.
Evidence of gambling habit and debt
The applicant gave evidence that his gambling habit started when he was in high school. When asked how old he was at the time, he stated that he was 16 or 17. When asked what kind of gambling he was involved with, the interpreter had some difficulty in translating the name of the game. The interpreter stated that the applicant had stated that it is played in casinos and involves placing a bet on numbers, and is about who gets the bigger number. She stated that the applicant called it ‘baccara’ or something similar, although she did not know the name. The Tribunal questioned the applicant as to whether he was referring to the game baccarat, to which he confirmed was the case.
When asked who he played this game with, the applicant stated [Mr F]. When asked who [Mr F] is, he stated he is a loan shark and that ‘he is high interest’, although he only came to know this later.
When asked where he played baccarat, the applicant stated it was in his village. When again asked who he played this game with, he stated that there are many people, but he only knows [Mr F]. He stated that he doesn’t know whether the other people were [Mr F]’s friends or underlings.
The applicant gave evidence that in the beginning he played maybe a few thousand RMB at a time, what he estimated was from $50 to $100 AUD, but then his bets grew bigger.
When asked again where he was playing this game, the applicant stated that in China they have underground casinos, which are hidden away and secret and their location often changes. When asked the location of the casino he attended, the applicant stated that he normally went up to the hills, where they would open ‘a kind of illegal gambling place’, which would be guarded at the entrance to the hill.
When asked how he came to find this gambling place, the applicant stated that every person who wants to gamble knows how to find this place and that it is easy to find.
The applicant stated that in the beginning the casino would let him win some games and then he would lose some games. He played bigger, and the casino let him win again. He stated that they encouraged him to bet much more, after which he lost. The casino would say that he should bet larger amounts to regain his losses, which then resulted in him losing even more. He stated that he was desperate because he had lost so much, and then [Mr F] asked whether he wanted to borrow some money. The applicant said yes to [Mr F], but then lost the money again. He stated that [Mr F] asked him to ‘write down the debt’ and added interest to it. He stated that verbally [Mr F] had told him the interest was quite low, and he didn’t realise it was much higher when he signed.
When asked what the principal owed was, the applicant stated it was about 250,000 or 260,000 RMB. He stated that the interest rate was 10 per cent, but it was compound interest that was added each month, and then six months later the interest added was more than 15 per cent per month. He stated that before he left China, the amount he owed was over one million RMB.
When asked when he incurred this debt, the applicant stated that he was not sure, but it was maybe in 2006 or 2007. The applicant confirmed that he owed this debt to [Mr F]. When asked how he knew [Mr F], the applicant stated that he is from the same area, and it is really easy to get to know each other. When asked whether there was any other way that he knew [Mr F], the applicant stated that with the gambling business it’s easy, as if he goes once, they already know him.
The applicant gave evidence that from the beginning he attempted to repay the debt, and he believes that he paid more than half of the principal owed. He then stated that he had paid more than 100,000 RMB, and later on discussed the debt with his family. The applicant then stated that the 100,000 RMB had been paid by his parents while he was still in China. He stated that his parents didn’t know from the beginning and came to know only later on. The applicant stated that after he came to Australia he tried to pay a little more, but [Mr F] kept stating how much the applicant owed. [Mr F]’s associates kept coming to his parents’ house to harass his parents, and his parents worried about his safety, which is why they organised the visa for him to go overseas. He stated that he is now very regretful and that gambling is a bad thing.
The Tribunal questioned how much was owed at the time the applicant departed China. He stated that [Mr F] kept saying that he owed more than 800,000 RMB, but the applicant knew he owed only a little more than 100,000 RMB.
The applicant gave evidence that since arriving in Australia he paid about $3,000 per year. He stated that he tried very hard to please [Mr F]. He stated that up until 2017 he had paid back more than $40,000 AUD since arriving in Australia.
The applicant also gave evidence that he sent money to his parents because they were sick, which he states was the result of the long-term abuse from [Mr F]. When asked how much he had sent to his parents, he stated he believes it was roughly $120,000 AUD, which was to repay the loan for his school fees as well as pay for his parents’ hospital fees. He stated that he had not paid anything since 2017 as his parents have now passed away. He stated that the reason why he was sending the money was because [Mr F]’s associates were abusing his parents. He stated that now his parents are dead he is not going to do this anymore. He also stated that he will not gamble again.
As to how much of the debt was owed at the time of the hearing, the applicant stated that he didn’t know. He stated that the money lenders say he owes them lots of money and threaten to kill him. He stated that they say to be careful and to pay more money, otherwise they will kill him. He stated that they abused his parents to death and he does not want to go back to this situation. He stated that they are underground mafia and he begs that the Tribunal provide him with protection. He stated that he is scared because he was beaten up. He stated that his parents were also scared for him and that these people can do anything, even kill people, which is why his parents organised for him to come to Australia.
Evidence of physical harm and threats in China
When asked when he was beaten up, the applicant stated that he remembers it was about 2007. When asked if he was beaten up on just one occasion, he stated that it was more than once, then stated it was a few times. He stated that later on the people who did this went to his parents’ house and started scaring and harassing them.
The applicant was asked to tell the Tribunal about the first time he was beaten up. He stated that he was first of all asked to repay the money that he owed, and he told the money lenders that he did not have it. A few days later they asked him again and he said he did not have the money. The third time they approached the applicant with a few other people around them and beat the applicant up.
When asked how the money lenders beat him, the applicant stated that they used their fists and feet, kicked him and punched him in the head. He stated that they used a stick or a baton to hit him on the back. They told him that if he says he has no money, there would be many more beatings in the future. When asked where he was at the time, the applicant stated this occurred at the ‘gambling place’. When asked if there were witnesses, he stated no, and that even if people saw the beating, no-one would say or do anything as these people are mafia. When asked if he suffered any injuries, he stated that his back was sore for a long time.
The applicant stated that another time he was beaten up when the money lenders came to his home and took out the paper showing the debt, and showed it to the applicant in front of his parents. He stated that they beat him up in front of his parents. When asked how he was beaten on this occasion, he stated that it was really hard to think about the details of when he was beaten up. He stated that all he remembers is a few people had a brick or a stick. When asked if he suffered any injuries in this occasion, he stated that he was beaten all over his body and he had injuries all over his body. When asked if he could be more specific, he stated that the loan sharks cut half of his middle finger. He stated that his finger was still intact, but it had a cut in it. He then stated that it was his middle finger, and that the nail was cut in half. He then stated that he went to the hospital and the middle finger was cut in the joint, close to his nail. He stated that he continues to have a permanent injury to his finger an is unable to [action deleted]. When asked whether he received any other injuries, the applicant stated that he was sore but he has recovered from all other injuries.
When asked if he had been beaten up on any other occasions, the applicant stated that he was beaten up another few times, which is why he started to look for a way to run away. He stated that he suffered no long-term injuries from these other beatings. When asked where the beatings occurred, he stated that sometimes they occurred at the gambling place, sometimes at home, and sometimes other places, wherever they saw him.
The applicant told the Tribunal that he gave up gambling in Australia. The Tribunal put to him that even though he was being beaten up, he continued to go to gambling places and gamble. The applicant then sought to explain that he returned to the gambling place to face the loan sharks and discuss the debt. He considered that if he showed his face there, the loan sharks would not think that he had quit gambling altogether, which is why he stated he quit after he came to Australia.
When asked whether he received any other threats that he had not already told the Tribunal, the applicant stated that sometimes the loan sharks would go past his house and yell something out, and sometimes they would get a group of people to come to his home and beat him up in a different way. When asked whether anything else happened in China, that he had not already told the Tribunal, the applicant stated that every day he was threatened that he had to repay the money.
When asked whether he ever went into hiding in China, the applicant stated that he couldn’t because the loan sharks knew where he lived and they could go to his parents. The Tribunal questioned the applicant as to why it was safe for him to come to Australia, but not safe to hide in China. The applicant responded that his parents told him that he was quite young, and if he leaves China the problem will be solved. He stated that he only came to know later that this was not the case. He stated that his parents loved him and wanted him to be safe.
Evidence of fears of returning to China
As to his fears about returning to China, the applicant stated that he had had enough and his parents are dead, but the money lenders still want to blackmail him. He stated that he is scared he will be beaten up or killed if he returns to China. He confirmed that the people who would be responsible for the harm were ‘the same people’ and he named [Mr F].
The applicant confirmed he had had no direct contact with the money lenders since he left China, as it was his parents who dealt with them. When asked why he thinks he would continue to be of interest to [Mr F] if he returns to China, the applicant stated it is because his parents suffered so much from them and are now dead. He stated he believes this has a lot to do with his parents’ deaths. He stated that he is scared that if he goes back the loan sharks will direct their attention against him.
When asked whether there was any other reason why he does not wish to return to China, the applicant stated that there wasn’t, but also stated that he has been living here so long that he is used to Australia now. When asked whether there was any other information he wished the Tribunal to consider, the applicant stated that life is hard at the moment, that he has not been working for a long time and he is unable to return home. He stated that he is worried about the COVID-19 pandemic, he has no job and he cannot go out to work.
Seeking of assistance from authorities
The applicant stated that he went to a police station to ask for help in relation to the above situation, but there was no resolution of his complaint as [Mr F] has many networks and is powerful. When asked when he saw the police, he stated that it was following the first occasion that he was beaten up. He claimed that the police stated that it was not their business and they would not get involved. When asked whether he has a copy of the police report, the applicant stated that he did, and this was why he went to see the police. He stated that he never received a response.
Evidence about relocating elsewhere in China
When asked whether there were any reasons why he could not relocate to another part of China to avoid threats from the loan sharks, the applicant stated that he has not visited any other city in China. He stated that his travel to Australia was organised by his parents and it was the first time he had left home.
Country information
The Tribunal discussed the following country information with the applicant from the most recent DFAT Country Information Report for China:[2]
[2] DFAT Country Information Report, People’s Republic of China, 3 October 2019.
Loan Sharks
3.236 There is no comprehensive data available on short-term cash lending (including online lending), as illegitimate lenders (otherwise known as loan sharks) operate illegally. In 2017, the Supreme People’s Court ruled that courts could only accept cases involving debt collectors seeking repayment of their loans if the interest rate charged did not exceed 24 per cent. Media reports claim that, as a result of the ruling, creditors have been forced to find other ways to get their money back if the rate is higher, and reportedly often resort to physical violence and threats against borrowers. Media reports also claim that loan sharks predominantly operate online and are increasingly designing debt traps disguised as legitimate lending. In May 2019, media reported that Shanghai authorities charged 316 criminal gangs, detained more than 1,770 suspects and retrieved more than RMB 1.2 billion in loan shark victim losses during October 2019 in a crackdown on loan shark activity.
3.237 DFAT considers these claims plausible, but is unable to verify them, and has no further information on the prevalence of loan sharks or alleged maltreatment of borrowers in China.
The Tribunal noted that the country information from this report may be of limited assistance as it relates predominantly to online borrowing, rather than borrowing within the context claimed by the applicant. The Tribunal noted also that the report indicates that loan sharks may operate in China, however DFAT is unable to verify such claims, nor provide information on the prevalence of loan sharks. The Tribunal invited the applicant to respond to this country information.
The applicant responded that four years had passed since 2017, and back in 2017 computer technology was less prevalent, and therefore when money was borrowed, you received a paper receipt. The Tribunal asked the applicant what year he claims he borrowed the money, and he confirmed it was 2007. The applicant then stated that online borrowing didn’t occur back then. The applicant referred to the 2019 crackdown of loan sharks referred to in the Report, but stated that this targeted a small section of loan sharks in Shanghai, and that a lot of loan sharks remain unprosecuted. The applicant noted that the report indicates there is no comprehensive data on short-term cash lending and the information comes from media sources. The applicant stated that China does not have reports on borrowing relating to casino gambling, and if it did, it would not publish the information. He stated that in 2007 there was no online gambling in China.
Information put to the applicant using the process in s.424AA of the Act
The Tribunal used the process in s.424AA of the Act to put information to the applicant from a document that had been provided to the Department with the applicant’s Student visa application in 2008. A copy of the document is contained at folio 50 of the Department file. The Tribunal noted that the Department had previously put some of the information to him at the Departmental interview, but nonetheless the Tribunal would be using the formal process set out in s.424AA to put the information to him and provide him with an opportunity to respond. The Tribunal put to the applicant that the information is from a document issued by [a named bank] and is headed ‘Certificate of Creditability; Personal Loan (Original)’. The certificate is dated 17 March 2008 and relates to a loan to ‘[Mr D]’. The certificate indicates that a loan of 400,000 RMB was taken out by [Mr D], and the ‘Reasons and Purpose’ for the loan is stated to be, ‘For his son [the applicant] to study abroad.’
The Tribunal put to the applicant that this information may be relevant because it may indicate that he had provided the Department with false and fraudulent information regarding his family composition, and may therefore also raise concerns about the credibility of the information he had provided with respect to his Protection visa application and his claims to protection. The Tribunal indicated that the information may also be relevant because it may indicate that the applicant’s family took out a loan of 400,000 RMB in order to pay for his studies in Australia, and this may be of relevance to assessing his claims regarding the money he owed to a loan shark. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on, The Tribunal noted that if it relies upon the information it may be the reason, or part of the reason, for the Tribunal affirming the delegate’s decision not to grant the Protection visa. The Tribunal asked the applicant whether he had any comments in relation to the information in this record and advised that he may be granted time to comment on or respond to the information if needed.
The applicant confirmed that he wished to respond to the information contained in this document, however he indicated that he did not wish to make a statement in relation to the information, and only wished to respond to any questions which the Tribunal had about the document. The Tribunal asked the applicant whether he was aware of the document. The applicant responded that the documents which were supplied for his Student visa application were prepared by his parents, so he is not sure why they put this information.
The Tribunal questioned why his parents would have provided a loan document which provides a different name for his father. The applicant responded that it is because his parents were a bit old at the time, so they could not get a loan from a bank, and so they asked someone else for help. He stated that the loan sharks came to threaten him a lot and his parents were in a rush to get him out of China, which is why they asked someone else to help them prepare the documents. The applicant stated that he does not want to hide anything or tell a lie. He stated that he could have hidden this information from the Department or Tribunal, but he has chosen to tell the truth. He apologised for what had happened and stated that he did not know about this document until he was in Australia already. He stated that this was the first time he had heard about this ‘certificate of creditibility’, and that he never knew before that there is such a thing. He stated that he does not want to shift the responsibility, but the documents were provided by his parents and they had asked someone for help with the document.
100. When asked if he knows who [Mr D] is, the applicant responded ‘I don’t know who this person is.’ The Tribunal put to the applicant that at the Departmental interview, when information from this document was put to him, he stated that [Mr D] is a real person, but he had just told the Tribunal that he did not know who this person is. The applicant then repeated that the documents were organised by his parents. He stated that if he is asked who this person is, he cannot tell the Tribunal. He stated that he was in a rush to travel overseas and that lots of things were happening at the time.
Concerns raised with the applicant regarding his evidence and claims
101. The Tribunal raised a number of potential concerns with the applicant regarding his evidence and his claims, and gave him an opportunity to respond to each as a matter of procedural fairness.
102. The Tribunal raised with the applicant differences in the background information which he had provided in his oral evidence compared with that provided in his Protection visa application. In particular, it noted that at the hearing he stated that he lived at [number] [Village 2], [Town 1], Fuqing City, Fujian, and that this address did not have a street address, only a number, as it was in the country, and that he lived there for seven or eight years. He stated that the previous address he had lived at was in Gulou District, which the Tribunal noted is in Fuzhou City, Fujian, and not in Fuqing City. The Tribunal noted that in his Protection visa application, the applicant stated that from [Year 5] (the year of his birth) to 2008 (the year he left China), he lived at ‘[Road 1], [Town 1], Fujian’.
103. The Tribunal invited the applicant to respond to this potential inconsistency. The applicant responded that he lived in Gulou District around 2000, which is now more than 20 years ago. He stated that he returned to [Village 2] in 2000 and stayed there until 2008. He stated that it is a small village and far away from the town. He stated that he has just provided the information that he can recall, and confusingly stated that if the Tribunal cannot verify the information there is nothing he can do about it. The Tribunal questioned why the applicant would have provided a different address in his Protection visa application to the ones he lived at. The applicant stated that the addresses he provided to the Tribunal at the hearing are the real ones. The applicant then stated that his parents provided the addresses. The Tribunal noted that it was not referring to addresses in the applicant’s Student visa application, but to the Chinese address details he had provided with the Protection visa application he had made. The applicant then unconvincingly stated that he did not know what was happening and that he had filled out the form some time ago.
104. The Tribunal noted that the applicant had at the first hearing told the Tribunal that he filled out his Protection visa application form himself, and that his friend had merely checked the details, and it was therefore unclear why he would not have provided the correct addresses of where he lived in China. The applicant asked for the address recorded in his Protection visa application. The Tribunal provided the [Road 1] address. The applicant stated that he was not quite sure why he put that address and then mumbled words that were inaudible. He repeated ‘[Road 1]’ to himself. He then stated that his parents might have sold fruit at that address previously. The Tribunal put to the applicant concern as to why he would list his parents’ business address when the Protection visa application form clearly requested details of his residential addresses. The applicant responded that maybe he did not check the question clearly. He stated that he realises the mistake and did not mean for this to happen.
105. The Tribunal put to the applicant that at the hearing he stated he attended [Town 2] High School, whereas in his Protection visa application he stated he went to [Town 1] High School (as well as [Town 1] Middle School). The applicant responded by stating that this was impossible. The Tribunal repeated the inconsistent information which had been provided. The applicant asked whether this information was in his 2017 visa application. He stated that he was very sorry for the mistake and stated that his English was not very good, and so he might not have put in the right information. He stated that he could provide an additional statement with the correct information. The Tribunal put to the applicant that his explanation that his English was not very good did not explain why he would list a high school other than the one he went to. The Tribunal also put to the applicant that these discrepancies in his background information may suggest that someone other than him, had prepared the application without obtaining information from him. The applicant stated he was very sorry for the mistake.
106. The Tribunal put to the applicant that there were inconsistencies in some of the information provided about his claims, and that some of his claims may not be convincing, and that this raised concerns as to the genuineness of his claims. The Tribunal noted that the applicant gave oral evidence that he commenced gambling when he was 16 or 17. The Tribunal also noted the applicant was born in [Year 5] (according to his Protection visa application and his Chinese passport), which means he commenced gambling [years earlier], and that according to his Protection visa application he was enrolled at [Town 1] Middle School from September [year] to June [year]. The Tribunal raised concern regarding the plausibility of a 16 or 17-year-old who was attending middle school attending an underground casino in a secret location in ‘the hills’. The Tribunal also raised concern that the applicant stated that he acquired the debt in 2006 or 2007, several years after he claims he commenced gambling. The applicant responded that he started small with the gambling, with only small amounts, and then he became addicted to it. He stated that there were a lot of things he didn’t understand because he was young. He stated that he was brought there by other people.
107. The Tribunal put to the applicant the vagueness of his evidence regarding the people who he went with to the gambling casino with, other than naming [Mr F]. The applicant responded that gambling was an addiction for him, and it developed over a period of time, so it was hard to say he knew anyone there as he was young when he attended. He stated that because he was 16 or 17 and very young and curious, he went to watch the gambling, and he was so curious that he wanted to try various things and then found he couldn’t get himself out of it. When asked again who took him to the gambling casino, the applicant stated that he couldn’t say who brought him there, as everyone knew about the place and he went there by himself. The Tribunal noted that a few moments before he stated that he had gone to the casino with others. The applicant stated this is because there were quite a few people and they were all curious, and so they went together. He stated that he can’t say who took him, as there were a number of people.
108. The Tribunal put to the applicant that the descriptions of the beatings he received were not convincing and were potentially inconsistent with the descriptions he had provided to the Department at the interview. The Tribunal noted that the applicant had provided little detail in his Protection visa application, stating that some rogues had hit him and bullied him and had threatened to cut off his hand. At the interview he stated that he was assaulted and hit on the head with wooden sticks, that his parents were present and tried to defuse the situation by paying small amounts of money, and this occurred three to four times from February 2007. There was no mention of being threatened with amputation. At the hearing he stated the first time he was beaten, they used fists and feet to punch and kick him and used a stick to hit him, and that it occurred at the gambling place. He stated that on the second occasion his parents were present and people used bricks and sticks to hit him. The Tribunal also put to the applicant that his evidence of his injuries was vague, as was his evidence of being beaten up on subsequent occasions.
109. The applicant responded that the beatings he received are painful memories, and that like a lot of other people, he does not want to remember these things. He stated that the events occurred over ten years ago and it is hard to distinguish between the first and second times he was beaten up. He stated that it was hard to know what parts of his body they were beating, whether it was his hands or his leg.
110. The Tribunal raised concerns about the credibility of some of the applicant’s claims, such as his claim that every day he was threatened to repay the money. The Tribunal put to the applicant that it was not credible that the loan sharks would threaten him every day. The applicant responded that he did not think they would threaten him every day, because if he died as a result of the threats, no-one would pay back the debt. He stated that towards the end their behaviour escalated and they became crazier and would constantly harass him. He stated he was extremely fearful.
111. The Tribunal raised concerns about the vagueness of the applicant’s evidence regarding , the money he owed. It put to him that at the hearing he stated that he believes he owes over 100,000 RMB, but the loan sharks think it is over 800,000 RMB, whereas at the Departmental interview he stated he thought he owed 200,000 RMB, and he gave evidence at both the interview and the hearing that he had stopped making payments before 2017. The applicant responded that the loan sharks are not the reasonable types and the numbers he provided are based on what he owes them.
112. The Tribunal noted that at the Departmental interview, the applicant had stated that he had sent about $120,000 to China in the nine years leading up to 2017, of which $3,000 a year was for the gambling debt, and that he had given similar figures to the Tribunal. He claimed that he had totally repaid the loan which had been taken out to secure the Student visa and his travel to Australia. The Tribunal noted that the delegate had estimated that if the applicant owed 200,000 RMB in 2017, this was the equivalent of about $38,000 AUD. The Tribunal noted that this information raised a couple of concerns, including the applicant’s ability to send about $13,000 a year to China, which would mean that if he had continued to pay the debt after 2017, the debt would now be minimal, if not paid off in full. The Tribunal also raised concerns as to why the applicant’s family would secure a loan of 100,000 RMB (according to his oral evidence) or 400,000 RMB (according to the documents provided with his Student visa application) to allow him to come to Australia to escape a gambling debt which he believed was a little more than 100,000 RMB when he left China.
113. The applicant responded that the loan sharks are not reasonable and a lot of things are up to them, not up to him. He stated that he made attempts to repay the debt, but the loan sharks kept saying that he owed a lot. He stated that his father had been ill for a very long time, and a lot of the money was sent for him. The Tribunal put to the applicant whether there was any reason why his parents could not have taken out a loan to pay the loan sharks, rather than take a loan to help him leave the country. The applicant stated that it was not that he and his parents were unwilling to pay back the loan sharks, but the loan sharks kept saying that it wasn’t enough and wanted them to pay off more.
114. The Tribunal put to the applicant that at the interview he had stated that he would not sell his family home in China to pay off the remainder of the debt, despite telling the Department that he had inherited the home and no-one was living there. The applicant responded that of course he would not want to use the family home to pay of the debt and that the loan sharks are not reasonable. The applicant then stated that the loan sharks had taken possession of the house and are occupying it. He stated that the house is not under his name, but under his parents’ names. He stated that even if he sold the house to pay the debt, the loan sharks would ask for more money.
115. When asked why he had not mentioned the loan sharks were occupying the house when he gave his oral evidence, the applicant stated that he wasn’t asked about this. The Tribunal questioned whether it was relevant to his stated fears of returning to China, and raised concerns as to why he would raise it at this point in the hearing for the first time, despite being asked whether anything else had happened in China which made him fear returning there. When asked how he knew the house was being occupied by the loan sharks, the applicant stated that his mother told him this before she passed away. The Tribunal questioned where his mother was living at that time if the loan sharks were occupying her home. The applicant stated that because his mother was at an advanced stage, the loan sharks allowed her to stay at the house and kept a watch on her, but they told her the house belonged to them. The Tribunal noted that in his oral evidence and at the interview, the applicant had stated that his mother passed away in 2016, the year prior to the interview. The Tribunal put to the applicant that he had made no mention of the loan sharks occupying the house when he attended the interview, despite being questioned by the Department officer as to why he did not sell the house to pay off the debt, and that he instead referred to other reasons for not selling the house. The Tribunal put to the applicant that it considered he was now putting the information about the loan sharks occupying his family home to exaggerate his claims for protection. The applicant responded that he could not provide a response because it happened many years ago.
116. The Tribunal put to the applicant that it may be possible for him to return to China and relocate to another part of the country without the money lenders being aware of his movements, and that there was no evidence to indicate he had been directly harassed or threatened by the money lenders since he left China in April 2008, and accordingly the loan sharks did not appear to be aware of his whereabouts. The applicant responded that he cannot say any more than he is fearful of returning to China. When asked whether there is any reason why he cannot relocate within China, the applicant stated that he does not have a reason other than he has not lived in any areas other than his hometown.
117. The Tribunal put to the applicant the significant delay in applying for protection, which raised concerns about whether he genuinely fears returning to China. The Tribunal noted that over nine years had elapsed from the applicant’s arrival in Australia and his application for the Protection visa, including a period of close to seven years when he remained in Australia unlawfully without a valid visa. The applicant responded that this was because at first his family believed they could repay the debt, but later on they realised that this path would not work. He stated that his mother passed away in 2016 and he was also not familiar with the Protection visa process. The Tribunal put to the applicant that it took him nine to ten years to realise that the repayment process was not going to work. The applicant stated this was the case and no matter how much was repaid, the loan sharks are never happy. The Tribunal put to the applicant that Protection visas are well known amongst Chinese nationals in Australia, and that it found it hard to accept that he would not become aware of Protection visas until 2017. The applicant stated that he didn’t know how to respond to this.
Assessment of claims
118. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant him or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
119. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
120. On the other hand, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (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).
121. The applicant told the Tribunal that he had filled out the Protection visa application form himself with the help of a friend, whom he asked to double-check the information and to fill parts of the form out. He then clarified that he filled out the form himself and asked his friend to check it before they submitted it. He stated that he was aware of the contents of his application form and confirmed that the contents are true and correct.
122. I have carefully considered the claims made by the applicant. I found the applicant was not a truthful or reliable witness. In reaching this view, the Tribunal has had regard to the inconsistencies in the applicant’s oral evidence at the hearing and the testimony that he gave at the Departmental interview, as well as the inconsistencies with background information contained in his visa application, which raise doubts about his claim that he filled out the application form himself, and therefore also raises doubts about whether the claims in the application form are the applicant’s own claims. In addition, I have had regard to a number of concerns regarding the plausibility and veracity of his claims.
123. I have also had regard to the country evidence, which generally supports the existence of loan sharks within China, although there is no information in the most recent DFAT Country Information Report on the prevalence of loan sharks within the context of illegal casinos or on the alleged maltreatment of borrowers in China. The Tribunal has had regard to the comments of the applicant in regards to the country information put to him. The Tribunal is prepared to accept that loan sharks may operate within illegal casinos in China and that not all loan sharks will operate online, and that this is also more likely to be the case in 2007, when the applicant claims the debt was incurred. However, for the reasons set out below, the Tribunal does not accept the applicant’s claims in relation to his experiences with such loan sharks to be true.
124. The Tribunal does not consider that things like minor changes or mistakes in dates, or minor omissions from the applicant’s claims would, on their own, undermine an applicant’s credibility. However, the Tribunal has considered the evidence set out above, some of it regarding critical matters, and when it is considered cumulatively, considers it raises serious concerns regarding the applicant’s credibility and his reliability as a witness.
125. First of all the Tribunal is concerned with the differences in background information contained in the applicant’s Protection visa application compared to that given in his oral evidence, including different details of his hukou and addresses he had lived at in China and the school he attended. The Tribunal did not find the applicant’s responses to be satisfactory, nor did he provide any reasonable explanations for why incorrect background information would be provided with his visa application. The Tribunal does not accept as convincing that his claimed inability to read English would result in the applicant erroneously provided the name of a different high school from the one he attended. The Tribunal also does not accept that the applicant would erroneously provide his parents’ business address as his residential address in China, when on the same page of his Protection visa application he listed four residential addresses where he resided in Australia between 2008 and 2017.
126. While these inconsistencies in background information may not relate directly to the applicant’s primary claims for protection, they nevertheless undermine the applicant’s claim that he prepared the application form himself with the assistance of a friend and raise doubts as to the extent to which the applicants claims contained in his visa application are his own.
127. This concern is further exacerbated by the information which was put to the applicant under s.424AA of the Act, which indicates that false information regarding the applicant’s family composition was provided to the Department in the applicant’s Student visa application. The Tribunal does not accept the applicant’s explanation that the documents for his Student visa application were provided by his parents and he was unaware of them. The Tribunal notes in particular that this information was put to the applicant by the Department officer at the applicant’s Protection visa interview. The delegate’s reasons for decision record that in relation to his father being named as [Mr D] in a ‘certificate of creditabililty’, ‘The applicant stated that this was a real person, who his parents had arranged to provide a guarantee, and that despite having the same surname as the applicant, was not related to the applicant or his family.’ In contrast, at the hearing the applicant stated that he did not know who this person is. The Tribunal does not find the applicant’s response to be truthful in light of his conflicting testimony to the Department, where he indicated an awareness of who [Mr D] is.
128. The Tribunal notes that the delegate’s decision also records that the applicant’s Student visa application contained false information about the identity of his sister. The Tribunal has not had access to the applicant’s Student visa application and has therefore not relied on this potential inconsistency, and considers it unnecessary to do so in light of the inconsistencies noted above.
129. The Tribunal did not find the applicant’s description of the illegal casino or of how he found and went to the casino to be convincing. The applicant gave a vague description of the casino being in ‘the hills’. Despite being pressed for further details, he could not name the person who first took him to the casino or who he would visit the casino with or who he was playing with, other than stating that there were many people. The applicant also claimed that he first went to the casino alone and that it was easy to find, despite his claim that the entrance to the hill was guarded. The Tribunal finds the applicant’s responses to this concern were vague and evasive. The Tribunal also does not consider it plausible that a 16 or 17-year-old who was at the time a middle school student, or had recently commenced high school, would visit an illegal casino in the hills on his own, nor that he would seek out such a place on his own for the first time. The Tribunal also notes the inconsistent account the applicant provided at the Departmental interview, where he stated that he started gambling after graduating high school in June [year].
130. The applicant provided very limited and unconvincing details of the loan sharks. He was able to name only one person, namely [Mr F], despite claiming that he went to the illegal casino regularly, and despite his claims that he was beaten up on several occasions in 2007, and at one stage claimed that he was threatened by the loan sharks every day. He also gave vague information when asked who [Mr F] was, stating that he is a loan shark, but he only came to know this later. The Tribunal notes that the delegate’s reasons for decision indicate that at the interview, the applicant referred to [Mr F] as his ‘friend’ and stated that his family knew this person.
131. The Tribunal considers that the applicant’s descriptions of the beatings which he received from the loan sharks were inconsistent and unconvincing. The Tribunal notes in particular the inconsistent information the applicant provided about the location he was at the first time he was beaten up. The Tribunal also found the applicant’s descriptions at the hearing of the beatings he received appeared to be improvised, such as his description of his second beating, in which he stated people used bricks and sticks to beat him. Despite only bricks and sticks being mentioned, when asked for details of the injuries he sustained he gave a vague description of having ‘injuries all over’. When pressed again, he mentioned the top half of his middle finger being cut. The Tribunal has trouble accepting that assault with the use of bricks and sticks would result in a cut to a finger. The Tribunal does not accept the applicant’s claim that he could not remember the details because of the painful beatings he received and because they occurred more than 10 years ago. Having considered the vagueness of the applicant’s descriptions of his beatings and of the loan sharks, as well as the inconsistencies in his evidence, the Tribunal concludes rather that the events did not occur.
132. At the Departmental interview in 2017, the applicant stated that he had owed [Mr F] about 250,000 RMB, and that the original loan was not very much, but the interest made it worse. He told the Department that in 2017 he still owed about 200,000 RMB to the money lenders. At the hearing the applicant stated (consistent with his evidence at the interview) that the debt was about 250,000 to 260,000 RMB initially, but that his parents had paid more than 100,000 RMB of the loan prior to him leaving China. He stated that under the loan agreement he was charged 10% cumulative interest per month, but then six months later the interest was charged at more than 15%. He claimed that he owed over one million RMB when he left China. When questioned further, he stated that he owed a little more than 100,000 RMB, but the money lenders kept saying he owed more than 800,000 RMB. He stated that he had paid back more than $40,000 of the loan since his arrival in Australia up until 2017. He claimed that he did not know how much of the debt is still outstanding, as the money lenders just say that he owes lots of money.
133. The Tribunal found the applicant’s evidence regarding the details of the loan to be vague, including details of when the loan commenced and the dates when repayments were made. When questioned about the calculations of the amounts he claims remain outstanding, and any ability he has, or had, to repay the loan, the applicant resorted to statements that the loan sharks are not reasonable people. This has made it difficult for the Tribunal to assess the plausibility of the applicant’s claims regarding the total amount owed and any amount which may still be outstanding. Considering the impact that the applicant claims this loan has had on his life, including his stated need to flee China and his claim that it contributed to his parents’ early deaths from illnesses, the Tribunal finds the applicant’s evidence of the loan was on the whole vague and lacked convincing detail. The applicant provided no corroborating evidence of the loan, such as a copy of the loan document which he claims he signed, or of any payments that he had sent to China, or any evidence of how such payments may have been utilised in China. He claims that he has a copy of the police report which he made, but this was not provided to the Tribunal.
134. In addition, the Tribunal has concerns that the applicant may now have had the capacity to repay the loan in its entirety. At the Departmental interview, the applicant indicated that he still owed about 200,000 RMB, or what the delegate estimated to be approximately $38,373 by reference to the xe.com currency converter. Approximately four years have now passed since the Departmental interview held on 31 August 2017. The applicant indicated that prior to his mother passing away in August 2016, he would send about $13,000 a year to China, and he had sent over $120,000 to China, the majority of which was to pay for medication for his parents. This would indicate that the applicant has now had a further five years to pay any remaining debt from the loan, without the need for him to also be financially burdened with the cost of medications for his parents. The Tribunal has taken into account the applicant’s evidence that both he and his wife had not been working for three months as at the time of the hearing, due to the impact of the COVID-19 pandemic, and that they may also have had similar financial pressures during COVOD-19 restrictions in NSW during parts of 2020. However, given the applicant’s evidence of the money he sent to China up until his parents’ deaths, the Tribunal has concerns about the vagueness of his claims regarding the outstanding debt, as well as his capacity to repay the majority, if not all, of the outstanding debt. The Tribunal found the applicant’s responses to this concern to be evasive.
135. Further, the Tribunal has concerns with the information put to the applicant under s.424AA, that his family borrowed 400,000 RMB in 2008 in order to pay for his visa and travel to Australia, which the applicant claims was necessary to allow him to escape China because of a gambling debt which he claims was a little bit more than 100,000 RMB at the time he left China. He stated that the loan sharks said at the time he owed more than 800,000 RMB. At the Departmental interview, the applicant stated that his parents had arranged [Mr F] to provide a guarantee. The applicant separately stated that the cost for his visa and travel to Australia was more than 100,000 RMB. The Tribunal finds it difficult to accept that the applicant’s family would spend 100,000 RMB or take out a loan for more than the amount the applicant claims was outstanding, for the purposes of sending him overseas for his protection, rather than use these funds to pay off the debt, thus allowing the applicant to remain in China with his family. When this concern was put to the applicant, he did not deny that his family had borrowed 400,000 RMB to enable him to study in Australia, but rather, he responded that the loan sharks are not reasonable people and kept saying the money was not enough. The Tribunal does not find the applicant’s response to be convincing, nor did it satisfactorily address the Tribunal’s concern in relation to the cost of the applicant’s travel and studies in Australia.
136. Another additional concern is the applicant’s evidence at the hearing that his family home in China is in the possession of the loan sharks, and that they took possession of it before his mother passed away in August 2016. The Tribunal notes that the applicant made no mention of this at the Departmental interview held in August 2017, despite the Department officer asking the applicant why he could not sell the house in order to pay off the debt. The applicant instead gave testimony that he had inherited the house and his sister was not entitled to inherit it. In addition, he stated that the house stood empty, and his reasons for not selling it included that it is his ancestral home, his family would probably not allow him to sell it, and it is the only thing he has to remember his parents by. The Tribunal finds these responses are not consistent with the applicant’s claim that the loan sharks have taken possession of his family home, and raise serious concerns about the applicant’s truthfulness and his willingness to exaggerate in order to strengthen his claims to protection. The Tribunal also does not accept that if the loan sharks had taken possession of his family home prior to his mother’s death in 2016, that the applicant would fail to mention this in his oral evidence because he had not been specifically asked about it. The applicant did not provide a satisfactory response to these concerns when they were put to him, stating that he could not provide a response as it happened many years ago.
137. The Tribunal considers the aforementioned concerns are wide-ranging and go to the heart of the applicant’s claims, including whether he attended an underground casino, from what age he attended and with whom he attended. They also go to whether the applicant developed a gambling habit, whether he borrowed money from a loan shark, whether he was threatened and harmed as a result of his inability repay such a loan, the amount of such loan, the current outstanding amount of any debt, and whether he and his family had the capacity to repay such a loan. Each of the matters raised above are of concern when looked at individually. When considered cumulatively they raise serious doubts about the credibility of the applicant’s claims and I am not satisfied his evidence in support of his claims can be relied upon.
Does the applicant have a well-founded fear of persecution if he returns to China?
138. The Tribunal accepts that the applicant is a Chinese national and is from Fujian Province, based on his passport documentation.
139. The Tribunal finds the applicant’s evidence regarding the development of his gambling habit in China to be vague and lacking convincing detail and he has provided inconsistent information regarding when he first started gambling. The Tribunal does not accept that the applicant attended an illegal casino in the hills outside his town when he was a teenager, and finds that his description of the casino was vague and unconvincing. The Tribunal does not accept that the applicant would be unable to remember the details of any persons who attended or were associated with the casino, other than [Mr F]. Having considered the inconsistencies and other concerns with the applicant’s evidence of his gambling habit and the debt which he claims he incurred, the Tribunal does not accept that the applicant developed a gambling habit as a teenager in China, nor does it accept that he borrowed money from a loan shark associated with the casino.
140. It follows that the Tribunal does not accept that the applicant was assaulted on several occasions as a result of his inability to repay the loan shark. The Tribunal notes that in addition to this it did not find the applicant’s descriptions of the episodes that he was beaten or of his injuries to be convincing. The applicant demonstrated a tendency to avoid providing detail by claiming he could not remember things because of the difficulty in remembering about being beaten up and because of the time that has passed, however the Tribunal finds the applicants descriptions of the beatings and his injuries were so lacking in convincing detail or plausible descriptions of injuries resulting from the use of particular weapons, that the applicant’s evidence cannot be relied upon. No supporting evidence of these injuries or of any medical treatment has been provided.
141. It follows from the above findings that the Tribunal does not accept that the applicant has made repayments to a loan shark, nor that he continues to have an outstanding debt to a loan shark. Having considered the evidence as a whole, the Tribunal does not accept that the applicant’s parents arranged his travel to Australia in order to protect him from harm from loan sharks. Rather, the Tribunal finds that the applicant arrived in Australia holding a Student visa and following the cessation of his Student visa, the applicant remained in Australia for close to seven years without a valid visa, and has now applied for the Protection visa for reasons other than his claimed fear of returning to China.
142. These findings are further reinforced by the applicants delay in claiming protection. The applicant first arrived in Australia holding a Student visa on 20 April 2008. His Student visa ceased on 11 August 2010. The applicants applied for the Protection visa on 17 May 2017, over nine years after he arrived in Australia. The Tribunal finds that the applicant’s reasons for the delay in applying for a Protection visa are unconvincing.
143. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm. Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant's fear of persecution. In Selvadurai v The Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 the Court observed in regard to a delay in lodgement of a protection application: “In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth of the applicant's alleged fear of persecution. It is a rational consideration open on the material”. In the Tribunal's view, the applicant's delay in lodging a protection visa application further supports a finding that the basis of the claim for protection should not be accepted.
144. The applicant has not claimed any other reason or basis on which he fears returning to China. I do not find that he has any other reasons to fear persecution or serious harm. I find there is no real chance that he will be harmed for any of the reasons he has put forward, or for any other reason. For these reasons, I do not accept there is a real chance of serious harm.
145. In addition to the above, having regard to the material before me, I am not satisfied that the harm claimed is for one or more of the reasons set out in s.5J(1) of the Act. There is no claim that the money lenders are threatening the applicant because of his race, religion, nationality, political opinion or because he is a member of a particular social group.
146. While the refugee nexus of being a member of a particular social group can have a broad application, s.5L of the Act makes it plain that each member of the identified particular social group must share a characteristic and that characteristic must either be innate or immutable or so fundamental to a member’s identity or conscience the member should not be forced to renounce it or it must be a characteristic that distinguishes the group from society. The characteristic cannot be the fear of persecution. In this case, the common characteristic of the social group would be persons in China who borrow money from money lenders and who cannot repay the loans. This is not a characteristic that could be described as innate or immutable to each of the persons, but rather is based on something each member has done based on their individual circumstances. Nor can this be described as something done by the person because it is fundamental to the member’s identity or conscience. There is no evidence contained in the country information that being a victim of an illegal money lender is a feature that is recognised in Chinese society as something that distinguishes that ‘group’ from other members of the community.
147. Accordingly, I am not satisfied the applicant has a well-founded fear of persecution on the basis of his claimed fear of harm from money lenders, as required for the purposes of the definition of a refugee contained in s.5H of the Act. In any case, I have also separately found that I do not accept the credibility of the applicant’s claims regarding him owing money to money lenders as a result of gambling debts.
148. Even though it is unnecessary to do so given the above findings, I have also considered whether the applicant could relocate to other parts of China to avoid the claimed harm from money lenders. The applicant gave vague and unconvincing responses as to why he cannot relocate to another part of China, stating that he has not visited any other cities in China and his travel to Australia was organised by his parents. The Tribunal considers that the applicant is still relatively young, currently aged [Age 1]. He gave evidence that he completed high school in China and evidence of working in a range of roles in Australia over a period of over ten years, including in the [work] sector and as [an Occupation 1]. He declares in his Protection visa application that he has worked [doing a job task] and he declared his employment at the time to be that of ‘[Occupation 2]’. In his evidence, he has confirmed the ability to save money, which he would send to China, and therefore the Tribunal considers the applicant would have the financial means to relocate.
149. The applicant has also declared in his Protection visa application that he has lived at three different addresses in Western Australia, after relocating from New South Wales, and at the time of the hearing the applicant had once again relocated back to New South Wales following at least five years of residing in Western Australia. The Tribunal thus considers the applicant is relatively young, has demonstrated his employability across a range of occupations and has demonstrated his mobility. Even if the Tribunal were to accept that the applicant has a genuine fear of returning to China, which the Tribunal does not accept, it considers he could avoid harm by relocating within China.
150. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, I find that there is no real chance that the applicant will suffer serious harm amounting to persecution from anyone for any reason, if he returned to China, now or in the reasonably foreseeable future.
151. 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) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
152. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a protection visa pursuant to the complementary protection criterion.
153. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB[3] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear’ in the Refugee Convention definition.
[3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]
154. ‘Significant harm’ is defined in the Act. 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.
155. The Tribunal does not accept the applicant’s claims regarding a debt that he owes to loan sharks as a result of a gambling problem, and therefore does not accept that any harm will arise from such a claim.
156. The applicant did not claim that he faced a risk of harm for any other reason or on any other basis on return to China, and on the information before me I find that there is not any other basis for a risk of harm to the applicant on return to Fujian, China.
157. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to China, now or in the reasonably foreseeable future. In addition, I consider that if the applicant were at real risk of significant harm from loan sharks in Fujian Province, for the reasons stated above, it would be reasonable for the applicant to relocate to another part of China.
158. Having considered all of the applicant’s claims, and all the evidence, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future.
Conclusion
159. For the reasons given above, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the first named applicant does not satisfy the criterion set out in s.36(2)(a).
160. Having concluded that the first named 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 first named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
161. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
162. The Tribunal affirms the decision not to grant the applicants protection visas.
Frank Russo
MemberATTACHMENT - 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.
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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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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