1724993 (Refugee)

[2024] AATA 2047

1724993 (Refugee) [2024] AATA 2047 (30 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1724993

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Jason Pennell

DATE:30 April 2024

PLACE OF DECISION:  Melbourne

DECISION: The Tribunal does not have jurisdiction in respect of the first applicant.

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

Statement made on 30 April 2024 at 10.13am

CATCHWORDS

REFUGEE – protection visa – Taiwan and Hong Kong – relationship ceased and first applicant departed Australia – no response to invitation to comment – no jurisdiction – second applicant’s reliance on first applicant’s claims – fear of harm from moneylender and gang – tracked and threatened – no explanation for fear of harm in Taiwan if returned to Hong Kong – second applicant’s loan from finance company half repaid – passage of time – vague oral evidence and no documentary evidence – country information – effective state protection measures – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), (2), (5), 5L, 5LA, 36(2)(a), (aa), (2A), 65(1)

Migration Regulations 1994 (Cth), Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225

Chan v MIEA (1989) 169 CLR 379

MIAC v MZYYL (2012) 207 FCR 211

MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445

MIEA v Guo (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 September 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. [The first applicant] claims to be a citizen of the Republic of China (Taiwan) and [the second applicant] claims to be a citizen of the People Republic of China (Hong Kong), applied for the visas on 31 May 2017. The delegate refused to grant the visa on the basis that the applicants are not  people in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and are not a members of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicants.[1]

   [1]    s.36(2)(b) and s 36(2)(c) of the Act

3. The applicants lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 13 October 2017 a copy of the delegate’s primary decision record dated 22 September 2017 was provided to the Tribunal.

4. On 15 August 2023, the Tribunal sent an email to the applicants advising that their application for review was to be given to a member. The Tribunal provided the applicants with a prehearing information form and requested that the applicants complete the form and return it to the Tribunal within 7 days of its receipt. The Tribunal did not receive any correspondence from the applicant in response to its email dated 15 August 2023.  and requested that they complete the prehearing information form and return it to the Tribunal.

5. On 12 January 2024 the Tribunal sent the applicants an invitation to attend a hearing on 16 February 2024 at 10.30am. The applicant was sent to the applicants by email to the address provided in the application for review. The applicant did not appear at the scheduled hearing on 16 February 2024. As a result, the Tribunal made an initial decision to dismiss the application for review.[2]

   [2]    Initial Dismissal Decision; AAT file No 1724993, Doc ID: 12118739

6. On 9 March 2024, the second applicant made an application to have the application for review reinstated, which the Tribunal accepted. As a result, the Tribunal made a further invitation for the applicant to attend a hearing for the purposes of giving evidence and making submission sin support of their claim.

7. The second applicant appeared before the Tribunal on 15 April 2024 to give evidence and present arguments. The first applicant did not appear before the Tribunal. The first applicant’s movement records indicate that she departed Australia [in] October 2018.[3] The second applicant’s evidence to the Tribunal was that the first applicant had departed the country.

   [3]    Movement records: AAT file No 1724993, Doc ID: 11979775

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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.

APPLICANTS CLAIMS AND EVIDENCE

Applicant’s identity

1. The first applicant claims she was born on [Date] in the Republic of China (Taiwan).[4] She claims to be a citizen of Taiwan and not a national of any other country.

   [4] First applicant’s protection visa application dated 1 June 2017, Dept File No [Reference]

1. The first applicant provided the Department with a certified copy of her valid passport that confirmed her date and place of birth. There is no evidence to suggest the first applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the first applicant, the Tribunal finds that she is a citizen of Taiwan.

2. The second applicant claims he was born on [Date] in Hong Kong.[5] He claims to be a citizen the people republic of China (Hong Kong) and that he is not a national of any other country. The second applicant provided the Department with a certified copy of his valid passport. Based on the document provided the Tribunal finds and accepts the applicant identity as claimed. 

   [5] First applicant’s protection visa application dated 1 June 2017, Dept File No [Reference]

3. There is no evidence to suggest the second applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided, the Tribunal finds that the second applicant is a citizen of Hong Kong. Accordingly, his protection claims will be assessed against Hong Kong as the country of reference and ‘receiving country’ respectively.

Migration history

1. The first applicant applicant arrived in Australia [in] July 2016 on a Working Holiday (TZ 417) visa which expired [in] July 2017.[6]

   [6] First Applicant’s Movement Records, AAT File Number 1724993. Doc ID 11979775

2. The second applicant arrived in Australia [in] July 2015 on a Working Holiday (TZ 417) visa which expired [in] July 2016. On 11 July 2016 he was granted a temporary working holiday visa valid until 6 July 2017.

3. On 31 May 2017 the applicants lodged an application for Protection (XA 866) visa which was subsequently refused resulting in this merits review application.

First Applicant’s departure.

1. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. Section 36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa may only be granted if the applicant is in Australia.

2. As referred to above the first applicant’s movement records indicate that she departed Australia [in] October 2018. By a letter dated 15 April 2024 the Tribunal advised the applicant that its records showed that she is not in Australia and therefore could not be granted a protection visa. The Tribunal invited the applicant to comment in writing on the information by 29 April 2024. The Tribunal did not receive any correspondence in response to its letter.

3. As such based on the movement record, the Tribunal correspondence, and the evidence of the second applicant, Tribunal finds that the first applicant is not in Australia. Accordingly, the Tribunal finds that the first applicant does not satisfy the requirements of s.36(2) of the Act and cannot be granted a protection visa.

4. Having reached this conclusion, it is not necessary for the Tribunal to consider the first applicant's substantive case for the grant of the visa.

Second Applicant’s claims for protection

1. The second applicant initially relied on the first applicants claims for protection he applied to the department for protection on 8 August 2017.[7] The applicant’s written claims are as follows:

   [7] Protection visa application form, Dept File No [Reference]

   Why did you leave that country(s)?

   Same as main application. N/A

   What do you think will happen of you return to that country(s)?

   I am not sure what will happen, may be nothing. N/A

   Did you experience harm in that country?

   ‘No.’

   Did you seek help within the country(s)?

   ‘No response,’

   Did you move or try to move to another part of the country(s) to seek safety?

   ‘No’

   Do you think you will be harmed or mistreated of you return to that country(s)?

   ‘No’

   Do you think the authorities of that country(s) can and will protect you if you go back?

   ‘N/A’

   Do you think you will be able to relocate within that country(s)?

   ‘’N/A’

2. The delegate summarised the first and second applicants claims as follows:[8]

   ·     She had been bribed to obtain a loan from a moneylender that had a high interest rate.

   ·     She found that she could not repay this loan.

   ·     The gang have threatened to kidnap and torture her and her family.

   ·     Her family have moved, however the gang have her personal details and have tracked her whereabouts.

   ·     They have continually threatened her that she has physical and psychological harm.

   ·     She has been moving from homes and job by the gangs still locate her.

   ·     She fears returning to the Republic of China (Taiwan) the moneylenders and gangsters will hurt her.

   ·     She believes that the government may not be able to protect her as does not have any evidence to support her.

   [8] Department decision record, AAT file 1724993, Doc ID no: 3726504

The second applicant’s evidence

1. The second applicant’s evidence to the Tribunal was that he continued to rely on the claims made by the first applicant as detailed in the delegates decision. The Tribunal noted that the first applicant’s claim related to the first applicant having borrowed money in Taiwan prior to her arrival in Australia. In circumstances where the second applicant had arrived in Australia prior to the first applicant and not from the same country as the first applicant (i.e. Hong Kong rather than from Taiwan), he was not able to explain to the Tribunal how he would be seriously or significantly harmed by a money lender in Taiwan if he was returned to Hong Kong. The applicant was not able to give any evidence to the Tribunal in support of his claim that he would be seriously or significantly harmed upon his returned to Hong Kong as a result of the first applicant having borrowed money from a moneylender in Taiwan as claimed.

2. Nevertheless, the second applicant’s evidence was that he was born on [Date] in Hong Kong.  He claims that he speaks, reads, and writes Mandarin.[9] The second applicant claims that his father passed away some time ago, but his mother continues to live in Hong Kong. His father worked as a [work sector 1] worker.  The second applicant’s evidence was that he has [sisters] and a [brother] all of whom continue to live in Hong Kong.

   [9] Protection visa application form, Dept File No [Reference]

3. The second applicant claims he went to school in Hong Kong having completed the equivalent to year [grade] at [School] in Kwun Tong district, Kowloon. The second applicant did not attend University or College. After school he worked various jobs including as [an occupation] for 1 or 2 years, in a [workplace 1] for 1 or 2 years and [work sector 1] as a [work role] for approximately 3 or 4 years. The second applicant was not able to tell the Tribunal the name of the businesses for which he worked in the [workplace 1] and as [an occupation].

4. The second applicant’s evidence to the Tribunal was that he travelled to Australia to work and to have a holiday. His evidence as that while in Australia he has worked in several [workplace 3s]. His first job was in [a workplace 3] in [Town 1], Victoria. He then worked for [Employer] in [Town 2] Victoria. For the last 6 years the second applicant has worked for [a workplace 3] in [Town 3] Victoria from which he recently resigned.  

5. The second applicant’s evidence was that he and the first applicant meet in Australia and were in a relationship for a while as girlfriend and boyfriend. His evidence was that they had broken up and have not been in a relationship for some time. The second applicant’s evidence was that the first applicant returned to Taiwan some time ago.

6. In response to the Tribunal, the second applicant claimed that he sought a protection visa because he did not want to return to Hong Kong. When asked what would happen to him if he returned to Hong Kong the second applicant stated that he did not know. The second applicant stated that he did not know if he would be able to find work if he returned to Hong Kong but conceded that he may be able to get a job in [work sector 1].

7. The second applicant’s evidence was that in or about 2011 or 2013 had borrowed money from a company, like a finance company, in Hong Kong. He claimed that he borrowed around HKD 50,000.00 (AUD 9,833.05) or HKD 60,000.00 (AUD11,799.66) or even HKD 100,000.00 (AUD 19666.10). He was not able to state the precise amount borrowed. The second applicant was not able to tell the Tribunal the name of the company or the person from whom he borrowed the money and did not have any documentation by which to evidence the loan, including a loan document, bank statement evidencing receipt of the principle sum and/or interest payments or money transfer receipts.  

8. The second applicant claimed that he was threatened when he was in Hong Kong about repayment of the loan. His evidence was that a collection agency had visited him about the loan but did not provide any details of any threats of serious harm he may have suffered. Nevertheless, the second applicant’s evidence was that he had repaid half the loan. He stated that he had made repayments to the loan both in Hong Kong and in Australia. The applicant’s evidence was that he had a bank account in Australia through which he received his wages from work performed. However, the applicant did not provide any evidence as to the balance of the loan. In addition, he was not able to provide any documentary evidence of the loan (copy of the bank statements or money transfer documentation) or any evidence of having made repayments to the loan in Hong Kong.

9. The second applicant conceded to the Tribunal that in circumstances where his evidence was that he had taken out the loan in Hong Kong prior to his arrival in Australia (ie over nine years ago) and where he had repaid half the loan, there was no real chance or risk,  given with the passage of time, the money lender would recall the applicant or pursue him for repayment of the balance of the loan if he was returned to Hong Kong.

COUNTRY INFORAMTION.

1. In accordance with Ministerial Direction No. 84 of 24 June 2019 made under s 499 of the Act, the Tribunal must consider the country information assessments prepared by DFAT. However, there is no country information report about Taiwan prepared by DFAT for protection status determination purposes. The Tribunal has therefore considered other various country of origin information sources including the National documentation packages prepared by the Immigration and Refugee Board of Canada (IRBC) in relation to Hong Kong.[10] In addition, the Tribunal has considered the DFAT ‘Common Claims’ the Country-of-Origin Information Services Section, People Republic of China dated 6 December 2023 (the DFAT Common Claims report) as detailed in Annexure ‘A’ to this decision.[11]

   [10]  Immigration and Refugee Board of Canada Department of Home Affairs, The Country of Origin Information Services Section (COISS); people republic of China, Common Claims dated 6 December 2023; file:///C:/Users/jpenne/AppData/Local/Temp/1/MicrosoftEdgeDownloads/8c5d3a87-636b-4b3e-8902-30bb9a4e76bc/China%20Common%20Claims%20(6%20December%202023).pdf

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Credibility

1. When assessing the applicant’s claims, the Tribunal must make findings of fact in relation to each claim. In doing so, the Tribunal is mindful of the difficulties faced by an applicant, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[12] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[13]

   [12] Section 5AAA, the Act.

   [13] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70.

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[14] Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted.

   [14] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at 482.

4. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[15] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

   [15] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].

5. In this case, the applicant did not appear before the Tribunal to present evidence and submissions in support of his claim. In addition, the applicant has not provided any documentation in support of his claim.

Accepted facts.

1. Based on the evidence provided by the second applicant the Tribunal accepts that:

(a)The second applicant was born on [Date] in Hong Kong. 

(b)The second applicant speaks, reads, and writes Mandarin.[16]

(c)The second applicant’s father has passed away and his mother continues to live in Hong Kong.

(d)The second applicant evidence was that he has [sisters] and a [brother] all of whom continue to live in Hong Kong.

(e)The second applicant completed year [grade] at [School] in Kwun Tong district, Kowloon.

(f)The second applicant did not attend University or College.

(g)The second applicant worked various jobs in Hong Kong including as [an occupation] for 1 or 2 years, in a [workplace 1] for 1 or 2 years and [in Work sector 1] as a [work role] for approximately 3 or 4 years.

Applicant’s refugee claim

Relevant grounds

[16] Protection visa application form, Dept File No [Reference]

1. To be considered a refugee pursuant to s 36(2)(a) of the Act, the second applicant, if returned to his country, must have a well-founded fear of persecution by reason of his race, religion, nationality, membership of a particular social group (PSG) or political opinion pursuant to s 5J(1)(a) of the Act. In this case, it was open to the applicant to submit that his claim falls within the scope of s 5J(1)(a) of the Act by reason of his membership of a PSG as a person who will suffer serious harm due to owing money to a moneylender if he is returned to Hong Kong.

2. The second applicant’s membership of a PSG is determined by s 5L of the Act which states: states:

   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.

1. As such for a person to be treated as a member of a PSG (other than the person’s family) he or she must have a characteristic, other than a fear of persecution, that is shared, or is perceived as being shared, by each member of the group. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.[17]

   [17]   Section 5L of the Act; Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264–266 and Gummow J at 285.

2. In this case, the Tribunal has reservations as to whether the applicant’s claim that he owes money to a moneylender in Hong Kong constitutes a characteristic that can be described as innate or immutable or that it is so fundamental to his identity or conscience that he should not be forced to renounce it as required under the Act. Nevertheless, for the purposes of this decision, the Tribunal is prepared to accept that the second applicant is a member of a PSG within the scope of s 5J(1)(a) of the Act.

Applicant’s well-founded fear

1. An applicant must have a well-founded fear of persecution. Section 5J of the Act states that for the purposes of an application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country. In the case of a PSG, the persecution said to be feared by the applicant must be for reasons of membership or perceived membership of the group.[18]

   [18]   Sections 5H(1) and 5J(1)(a) of the Act; see Applicant A v MIEA (1997) 190 CLR 225 at 240.

2. In Chan v MIEA[19] the Court in considering the Convention held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[20]

   [19] (1989) 169 CLR 379 at 396

   [20] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ

3. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[21] Section 5J(4) of the Act requires that the reason for the persecution must be the essential and significant reason and that it must involve systematic and discriminatory conduct.

   [21] Chan Yee Kin v MIEA (1989) 169 CLR 379.

4. In this case, the Tribunal has considered if there is a real chance the second applicant will be seriously harmed if he was returned to Taiwan and, for the reasons expressed below, the Tribunal has found that the applicant does not have a well-founded fear of persecution as claimed, either on a subjective or objective basis.

The First Applicant’s claim

1. The second applicant by his written application relies on the first applicant’s claim for protection being that she fears returning to the Republic of China (Taiwan) because moneylenders and gangster members will harm her. As noted above the applicant was not able to explain to the Tribunal how he will be seriously or significantly harmed by a money lender and/or gang members in Taiwan if he is returned to return to Hong Kong. In addition, the applicant did not give the Tribunal any evidence in support of the claim that gang members or a money lender in Taiwan would harm him if he was returned to Hong Kong. Therefore, based on the second applicant’s own evidence the Tribunal finds that there is no real chance he will be seriously harmed by gang members or a money lender in Taiwan if he is returned to Hong Kong.

The Second Applicants Loan

1. The second applicant’s evidence to the Tribunal was that in or about 2011 or 2013 he borrowed money from a company, that was ‘like a finance company,’ in Hong Kong. The applicant was not able to tell the Tribunal the name of the company from which he claims to have borrowed the money. In addition, he was not able to say precisely how much he borrowed. His evidence was that he had borrowed either HKD 50,000.00 (AUD 9,833.05) or HKD 60,000.00 (AUD11,799.66) or even HKD 100,000.00 (AUD 19666.10) but could not recall the precise amount.  The applicant did not provide any documentary evidence of the loan including loan agreement, bank statements evidencing receipt of the loan funds and/or loan repayments.

2. The second applicant claimed that he was threatened in Hong Kong for repayment of the loan. His evidence was that a collection agency had visited him about the loan. There was no evidence that he had been seriously or significantly harmed, including being threatened to be killed, physically harassed or physical ill treatment.

3. In any event. the second applicant’s evidence was that he had repaid half the loan. His evidence was that he had made loan repayment both in Hong Kong and in Australia. However, the second applicant was not able to provide any documentary evidence of him making any loan repayments as claimed. He did not provide any document that may indicate the existence of a loan or repayments made in respect of such a loan including a copy of a bank statements or money transfer.

4. The second applicant conceded to the Tribunal that given the passage of time and the fact that he had repaid half the loan, it was likely he would experience serious or significant harm from the money lender upon his return to Hong Kong.

5. Therefore, based on the evidence provided by the second applicant the Tribunal finds that he did not borrow money from a moneylender in Hong Kong as claimed. As such the Tribunal finds that there is no real chance or real risk he will be seriously or significantly harmed because he borrowed money from a moneylender as claimed.

Access to state protection

1. However, if the applicant did borrow money from a moneylender (which the Tribunal has specifically found he did not), based on the available country information, the Tribunal finds that the applicant would be able to obtain effective protection to the extent that there would be no real chance that he would suffer serious harm if he were returned to Hong Kong.

2. The country information reports[22] that the Hong Kong Police Force is one of the oldest, yet most modern, police forces in the world. It has a strength of around 27 185, of which 18 per cent are female officers. It also has 4 066 civilian staff.[23] Its reported[24] that the police force is dedicated to safeguarding national security, protecting life and property, preventing, and detecting crime, and maintaining law and order in the society to ensuring Hong Kong remains one of the safest and most stable societies in the world. Recently the Hong Kong police force was accused of misconduct during the 2019 protests of using excessive force,[25] torture and falsifying evidence.[26] Nevertheless, its reported[27] that the Hong Kong police are effective and respond promptly to and fighting crime.

   [22]   Hong Kong: the Facts The Police. ibid

   [24] ibid

   [25] PBS News ‘Hong Kong police fight with protesters amid rising tensions.’ 14 July 2019 Asia Times ‘HK Police deny framing beating protestor’ by Almen Chui 13 August 2019 Australian and New Zealand Journal of Criminology ‘Public assessments of the police and policing in Hong Kong.’ Michael Adorjan and Maggy Lee July 2016; ww.researchgate.net/publication/304994307_Public_assessments_of_the_police_and_policing_in_Hong_Kong.

3. The country information reports that China’s Civil Code prohibits ‘usurious loans,’ but does not define what is a usurious interest rate. It’s reported that loan sharks are known to use ‘nude’ loans (where a person is forced to provide naked pictures of themselves as collateral)[28], unlawful detention and violence,[29] and some women were reportedly forced into prostitution to repay debts.[30] In March 2021, a gang of loan sharks was found to have caused the deaths of 89 people after they hired debt collection companies to harass and intimate borrowers who had no feasible avenue to pay off their obligations.[31]

   [28]  ABC News, ‘China’s millennials embrace loans paying in instalments as microloan booms’ 28 November 2018 by Christian Zhou and Bang Xiaoww.abc.net.au/news/2018-11-28/want-to-pay-for-a-packet-of-biscuits-in-36-instalments/10557212); DFAT Common Claims report.

   [29]  Australian Centre on China in the World (Australian National University) ‘China Dreams’, Linda Jaivin Ben Hillman, with Sharon Strange.May 2020, p. 37 South China Morning Post 'A multi-billion dollar criminal lending scheme resulted in 89 deaths in China: CCTV', 29 March 2021 DFAT Common Claims report

   [30]  ABC News, ‘China’s millennials embrace loans paying in instalments as microloan booms’ 28 November 2018 by Christian Zhou and Bang Xiaoww.abc.net.au/news/2018-11-28/want-to-pay-for-a-packet-of-biscuits-in-36-instalments/10557212); Common Claims

   [31]  South China Morning Post 'A multi-billion dollar criminal lending scheme resulted in 89 deaths in China: CCTV', 29 March 2021 DFAT Common Claims report

4. Nevertheless, the country information reports that police continue to crack down on loan sharks. In 2018 to 2020 a law enforcement campaign targeted ‘black society gangs’, extortion, prostitution and gambling.[32] Its reported[33] that between 2018 and 2021, 230,000 people were indicted for being engaged in mafia-like gangs and other crimes,’ in addition to 2,987 of their ‘protectors.’ In addition, it was reported[34] that 14,000 people were prosecuted for organised crime in 2022, because of the newly implemented Anti-Organized Crime Law, resolving approximately 20,000 organised crime cases.[35] 

   [32]  DFAT Common Claims report

   [33]  DFAT Common Claims report; Global Times, ‘China reaffirms determination to wipe out mafia gangsters, protectors by Zhang Changyue 18 July 2022, China Daily, ‘Battle against organised crime ongoing’ by Yang Zekun 10 Feb 2023  DFAT Common Claims report

   [35]  China Daily,’20,000 organized crime cases resolved in 2022’ by Yang Zekun 27 Feb 2023. DFAT Common Claims report.

5. Based on the available country information the Tribunal accepts that unauthorised moneylending does occur in Hong Kong. There was no evidence that the second applicant has been subjected to activities of loan sharks including ‘nude loans or unlawful detention. Nevertheless, the country information indicates that the police and other authorities are active in prosecuting illegal moneylending activities together with the activities of gangs. Therefore, having considered the operation of s 5J(2) alongside the available country information, the Tribunal is satisfied that, if it did accept that the applicant did borrow money from a moneylender or he was threatened by the authorities due to illegal moneylending practices as claimed (which it specifically does not), effective protection measures are available in Hong Kong by the state. In addition, based on the available country information, the Tribunal finds that the state is able and willing to provide such protection. That is, the applicant can access the available protection and the protection provided is durable.

6. From the available country information, the Tribunal finds that Hong Kong has an appropriate system of criminal law and that the police force is effective. Therefore, by operation of s 5J(2) and s 5LA, the Tribunal finds that the applicant does not have a well-founded fear of persecution as claimed or any related claim or any other reason. Its therefore finds that the applicant does not satisfy s 36(2)(a) of the Act regarding the second applicant’s claim of being a victim of a moneylender or a loan shark.

7. Therefore, having considered the second applicant’s claims both individually and cumulatively the Tribunal finds that the applicant does not have a well-founded fear of persecution if he returns to Hong Kong and finds that the applicant does not satisfy s 36(2)(a).

Complementary protection

1. The Tribunal also considered whether the second applicant meets the complementary protection criterion under s 36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’. The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind.

2. Based on the applicant’s own evidence, the Tribunal has found that there is no real chance the applicant will be seriously harmed if he is returned to Hong Kong because of the first applicant borrowing money from a money lender in Taiwan. For the reason as detailed above, the Tribunal finds that there is no real risk the applicant will be significantly harmed if he is returned to Hong Kong by reason of the first applicant being threatened by money lender or gang members in Taiwan.

3. In addition, for the reasons above the Tribunal has not accepted the second applicant’s evidence that he borrowed money from a moneylender in Hong Kong as claimed. Accordingly, the Tribunal has found that there is no real chance that he would be seriously harmed if returned to Hong Kong. Therefore, for the reasons expressed above in considering the applicant’s claim as a refugee the Tribunal finds that there is no real risk that he will be significantly harmed if he is returned to Hong Kong.

1. In addition, for the reasons expressed above the Tribunal has not accepted that the applicant is at risk of harm from a moneylender or that such risk would be serious pursuant to s 5J(5) of the Act. Having considered s 36(2A) of the Act, the Tribunal finds, for the reasons above, that the harm the second applicant claims to fear does not amount to significant harm. As such the Tribunal finds that there is no real risk that the applicant will be significantly harmed by a moneylender if he is returned to Hong Kong.

2. Having considered the country information and the accepted circumstances of the second applicant as discussed under the Tribunal’s effective protection findings for s 36(2)(a) of the Act, the Tribunal does not accept that the second applicant will suffer significant harm due to borrowing money from a moneylender in Hong Kong as claimed. As such the Tribunal does not accept that he has a real risk of significant harm as outlined in s 36(2A)(c) and (d) and finds that, there is no real risk the applicant will be significantly harmed upon his return to Hong Kong.

3. However, if the Tribunal accepts he borrowed money from a moneylender (which the Tribunal has specifically found he did not), the Tribunal finds he can obtain protection from an authority in Hong Kong such that there would not be a real risk that the applicant will suffer significant harm.[36] To satisfy s 36(2B)(b),[37] the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[38] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s 36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[39] However, the test in s 36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection. That is, s 36(2B)(b) of the Act requires the Tribunal to be satisfied that the protection available would remove the real risk of significant harm.

   [36]  Section 36(2B)(b) of the Act

   [37]  MIAC v MZYYL (2012) 207 FCR 211

   [38] MIAC v MZYYL (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s.36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under s 36(2)(a) of the Act.

   [39] In MIAC v MZYYL (2012) 207 FCR 211 the Court stated at [36] that the section must be read as a whole, and that the enquiry provided for in s 36(2)(aa) necessarily involves consideration of the matters referred to in s 36(2B).

4. Having considered the country information and the accepted circumstances of the second applicant as discussed under the Tribunal’s effective protection findings for s 36(2)(a) of the Act, the Tribunal finds that the level of protection from state and other authorities available to him, if removed from Australia to anywhere within Hong Kong, would remove the real risk of significant harm. That is, the Tribunal finds that Hong Kong police will provide the second applicant effective protection from physical harm. Based on these findings, the Tribunal is satisfied that the second applicant could obtain, from an authority of Hong Kong, protection such that there would not be a real risk that he will suffer significant harm. Accordingly, pursuant to s 36(2B)(b) of the Act, there is taken not to be a real risk that the applicant will suffer significant harm in Taiwan and therefore the second applicant does not satisfy s 36(2)(aa) of the Act in this regard.

5. In all the circumstances, the Tribunal finds that, pursuant to s 36(2)(aa) of the Act there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the second applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm of any kind.

6. At no stage did he advance any other reason, such as his race, nationality or religion, in his written claims that he is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the second applicant’s accepted circumstances, to be considered pursuant to s 36(2)(a) and s 36(2)(aa) of the Act.

7. Having considered the second applicants claim and accepted circumstances, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Hong Kong, there is a real risk he will suffer significant harm, including that he will be arbitrarily deprived of his life; suffer the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment, as required by s 36(2)(aa).

Conclusions

1. Therefore, based on the evidence before the Tribunal, it finds that the first applicant was not in the migration zone at the relevant time. As such, the application for review is not a valid application made under s 412 and it follows the Tribunal does not have in relation to the first applicant.

2. For the reasons given above, the Tribunal is not satisfied that the second applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s 5J(2). Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a) of the Act.

3. Having concluded that the second 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 second applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

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

DECISION

1. The Tribunal does not have jurisdiction in in respect of the first applicant.

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

Jason Pennell
Senior Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   (b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

   (i)the relevant State; or

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

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

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

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

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

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…

Annexure ‘A’

Loan Sharks

Loan sharks and organised crime groups remain active. On 1 January 2021, legislation came into force under China’s Civil Code that prohibited ‘usurious loans’. However the legislation does not define what is considered to be a usurious interest rate. Loan sharks are known to use ‘nude’ loans (where a person is forced to provide naked pictures of themselves as collateral), unlawful detention and violence, and some women were reportedly forced into prostitution to repay debts. In March 2021, a gang of loan sharks was found to have caused the deaths of 89 people after they hired debt collection companies to harass and intimate borrowers who had no feasible avenue to pay off their obligations.

Police continue to crack down on loan sharks. A 2018 to 2020 law enforcement campaign targeted ‘black society gangs’, extortion, prostitution and gambling, among others. In both 2019 and 2021, it was claimed by the Chinese government that 41,000 suspects had been detained, though it is not clear if these arrests include previous year’s numbers. State media reported in July 2022 that the broader campaign against gang-related crime between 2018 and 2021 resulted in the indictment of 230,000 individuals ‘engaged in mafia-like gangs and other crimes,’ in addition to 2,987 of their ‘protectors.’407 In February 2023, state media further reported that 14,000 people were prosecuted for organised crime in 2022, as guided by the newly implemented Anti-Organized Crime Law,408 overall resolving 20,000 organized crime cases.’ Police generally have the capacity to deter and investigate crimes although may rely somewhat on technology and surveillance tools, and urban law enforcement forces are better resourced and trained than rural forces.

Judicial System and Criminal Procedure

Accused criminals have legal rights and are treated according to a set procedure. Crimes and their prosecution are handled by ‘People’s Procuratorates’ with thelocal Public Security Bureau (PSB; the police) implementing their decisions, for example by holding a person in custody. Police must file a prosecution request with prosecutors and can detain a suspect for 37 days before the prosecutor ‘approves’ the arrest. This should, according to the law, take place within three days with the possibility of a one to four day extension, but where multiple locations are alleged, or gang activity is alleged, it can take longer. In cases that involve national security, terrorism or ‘major bribery’, the law permits six months of detention without a formal arrest. According to the law, an interrogation must take place within 24 hours. Post-arrest detention should be completed within two months but may be extended by approval. Individuals may be detained for up to thirteen and a half months before charges are laid. Bail may be available. Bail is dependent on a cash guarantee or another individual undertaking to secure the suspect’s attendance at court. Bail may have conditions attached, which may include reporting to police regularly, surrendering documents or not attending a certain place. House detention may be used as an alternative to bail. Bail is limited to 12 months and house detention, or surveillance is limited to six months.

Since 2018, suspects can be tried and convicted in absentia. Criminal cases of bribery and corruption, as well as cases ‘verified by the Supreme People’s Procuratorate’ may be heard in People’s Intermediate Courts without the suspect being present.423 Cases that are verified by the Supreme People’s Procuratorate include ‘cases seriously endangering national security or terrorist activities. Those tried in absentia may still be represented by a lawyer or relatives or court[1]appointed counsel.

Processes common in Western criminal systems do not necessarily exist in China. The right to contact family members, be represented by a lawyer at various stages of investigation and detention, the right to silence or the right to have someone informed of one’s arrest may not be available. The law requires that family members be notified of an arrest within 24 hours, with the exception if doing so would ‘hinder’ the investigation. Among sensitive cases, notification may not occur or is delayed. The revised criminal procedure law reaffirms the presumption of innocence; however, the US Department of State reports that the system is prejudiced to presume guilt, especially in high-profile or politically sensitive cases.

The law provides for alternative forms of detention. Residential Surveillance in a Designated Location (RSDL) allows for an individual to be detained for up to seven months in an undisclosed location before being formally arrested. RSDL detainees may be subjected to solitary confinement, interrogation and psychological abuse, and other ill treatment. RSDL is regularly used for persons accused of being a danger to national, which often includes human rights defenders or activists, and government critics. Similarly, liuzhi, an instrument of the National Supervision Commission (NSC), allows for people to be placed in a ‘designated location’ without any procedural guarantees such as access to a lawyer. The NSC focuses on CCP party officials and employees of state-run companies such as judges, educators and healthcare professionals, and has a focus on corruption.

The law is not strictly followed and not always clear. Public security officials sometimes detain people longer than allowed by law. The CCP may interfere in criminal cases through political-legal committees (PLCs), which supervise and direct the work of legal institutions, including courts, and may include senior police officers.436 Judicial autonomy is limited particularly in cases that are politically sensitive or involve vested economic or political interests. Laws requiring access to legal representation may not be always followed, especially for politically sensitive cases. Charges may be vague, for example ‘picking quarrels and provoking trouble’. Authorities may declare matters to be state secrets in order to prevent trials being held in public or to prevent access to defence lawyers. Prosecutions rely heavily on confessions, sometimes televised, and which reportedly may be forced or coerced by police. Police are generally required to seek formal permission from the prosecutor to arrest an individual to ensure that only ‘clear cut’ cases proceed. Accordingly, sources report the conviction rate in China at over 99.9 per cent of defendants.

China uses the death penalty for a range of offences. According to Amnesty International, China is the most prolific user of the death penalty in the world. The number of executions per year is not revealed by the government but is reportedly in the thousands. There are 46 offences punishable by death, including financial crimes, drug offences and corruption. A Canadian government source notes the death penalty is ‘usually administered’ in serious and violent crimes including those ‘severely endangering national or public security, social order or infringing individuals’ rights.’