1731037 (Refugee)

1731037 (Refugee) [2018] AATA 1426 (20 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731037
COUNTRY OF REFERENCE:                  China
MEMBER:Sean Baker
DATE OF ORAL DECISION:  20 March 2018; 1.23pm
DATE OF WRITTEN STATEMENT:         22 March 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 22 March 2018 at 2:20pm

CATCHWORDS
Refugee – Protection Visa – China – Debtor fearing creditors – Fabricated protection claim – Fears harm from father – No substantial grounds to believe that the applicant will suffer significant harm

LEGISLATION
Migration Act 1958, ss 5H, 5J , 5K-LA 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 November 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 6 July 2017. The delegate refused to grant the visa on the basis that the applicant did not attend the Departmental interview and the written material did not provide a sufficient basis to be satisfied that the applicant feared harm as claimed, nor that he face a real risk of significant harm. The applicant provided a copy of the delegate’s decision to the Tribunal.
The Tribunal gave its decision on the review at the conclusion of the hearing held on 20 March 2018. These are the reasons for that decision.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether the 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 applicant being removed from Australia to China, there is a real risk that they will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant provided a copy of his Chinese passport to the Department. On the basis of this information and without any information to the contrary the Tribunal accepts that the applicant is who he claims to be, that he is a national of China, which is also his receiving country.
The applicant claimed at the hearing that he did not have a right to enter and reside in any third country. On the basis of the information before the Tribunal I accept this claim and find that the applicant does not have a right to enter and reside in any third country.
Claims
The applicant provided claims in his protection application. He indicated he feared returning to China. In response to the question asking why, he claimed:
Because my family took usury from the underworld and our lives are threatened. The local public security did not protect us, even was used to capture us. Since my fathers business needed a large amount of cash flow, he borrowed money from local money lender at a very high rate, reaching to 36% annual. We had not thought about the failure of business, so we were unable to repay. As a result, my family was continuously harassing by the local money lender and criminal syndicate. In the face of high interest rate, it is really difficult for us to return money. So the criminal syndicate tried to force me to do hard work. Under these circumstances, in order to protect me, my father let me escape from home, but he was arrested and assaulted, finally he was hurt with serious injurious. I sued the criminal syndicate and the money lender to the public security bureau.
However, the police covered up criminals and the court refused to put on record for the reason of economic disputes. We even could not find a place to argue in such a big China. The criminal syndicate learned that we went to the police, things went worse and they started to insult us at my home every day. I had no other choice but to escape to Australia. I hope Australian government could help me.
When asked if he had experienced harm in that country he indicated yes and said that:
They caught me and force me to do hard work. I am so scared of them.
When asked if he had sought help he indicated he had and said:
The criminal gangs, the local money lender and officials were colluding together and covering up each other, they will not protect me.
He indicated he had not moved within the country to seek safety, stating:
Never, Chinas official corruption is extremely widespread and bureaucrats shield one another, it is the same all over china.
When asked what he thought would happen to him if he returned he said:
If I return home, I will be captured by the local money lender, then I will be beat cruelly and forced to do hard work. I will die if I return to China.
He went on to say that he thought he would be harmed or mistreated:
If I return to China, the local money lender, criminal syndicate and the police will continue to persecute me. The whole political system in China is corruption, they will not let me get away with this.
He indicated that he did not think the authorities can and will protect him:
Government will only protect the people with power not us.
He indicated he did not think he could relocate to an area where he would not be harmed:
It is useless to relocate to other places in our country, the criminal gangs and the underground bankers are so powerful that I will be captured wherever I go.
The applicant did not attend and interview with the delegate who refused the application. The applicant then applied to the Tribunal. The applicant did not provide any further information to the Tribunal.
Before the Tribunal, the applicant clearly stated that he was resiling from the all of the above claims. He said that the lawyer had prepared the application and had not read it back to him. He said that they were his claims but when I asked how he knew they were his claims if they had not been read back to him he asked if he could change his claims. I asked why he would need to do this and he said he just wanted to stay here and earn more money to help his mother with her medical costs. I asked what he was then saying about the claims made to the Department in his name, were they true. He said he was not sure, because it was always handled by the lawyer.
Later in the hearing I went through the claims made in his written application. He said that his parents had not taken a high interest loan from a local money lender, but his father had taken out a loan from a bank. I asked if his parents’ lives had been threatened and he said that his father’s leg had been broken, he said because his father’s brother and father had broken it. I asked why and he said because his father abused his mother. I noted that in the written claims provided to the Department it had been claimed that his parents had taken out a high interest loan from money lenders and their lives had been threatened. He said this had not happened; it had been made up by the lawyer.
I asked if the local public security were used to capture them and he said no. I asked if his father had been captured and assaulted because of the loan and the applicant said not as far as he knew. I asked if he had sued anyone. He asked why he would sue anyone if they did not even exist. I asked if he or his family had had any court disputes with anyone and he said no. I asked if the entirety of the claims to the Department were not true and he said was correct.
When asked why he could not return to China the applicant said that he had come here as a student but had not achieved anything and things were developing in China so fast and he would not be able to earn any money if he went back to China. He said he needed to help his mother with medicines. I explored this claim with the applicant. He said he had only graduated secondary school and the work he was doing here [was] not needed in [China]. I noted that China was the world’s second largest economy and had a high rate of growth,[1] and the construction sector was growing (albeit not as fast as previously).[2] I noted that this might lead me to think that he had very good prospects of returning and getting a job. He conceded that the job market was good, but the pay low. He said he would be able to survive but not to help his mum, who had [some medical conditions], but he did not know what was wrong with her. I asked why he thought he would not be able to survive and assist his mother if he worked in China and he said he didn’t know, as he had come to Australia when he was [young]. I noted his mother was there. He said she did not say what it was like. I noted that the country information might lead me to the view that he would be able to help his mother as well as survive. He said he would have to start over all again.
[1] DFAT, Country Information Report: China, 21 December 2017, 2.6 – 2.7.
[2] Reuters, “Slower property, construction sectors drag on China’s growth”, 20 October 2017, South China Morning Post,
The applicant also claimed to fear his father. Initially he said that his father had beaten him when he was a child and that his father had beaten his mother and was an alcoholic, which led to them separating and divorcing. The applicant was unclear on when they had divorced but said it was ‘early’ and he had seen the divorce paper when he was young. He said his mother lived in Fujian but his father had moved to Shanxi, one of the inner provinces.
When asked whether he feared anything on return to China he said probably nothing, he was just worried because he had no work experience in China. He said he did not fear anything else, nor was there any other reason he might be harmed on return.
After a break, the applicant said that his father had a loan with the bank and it was for a lot of money and he would ask the applicant for money occasionally, and it was a lot, [a certain amount], and he had not given his father the money and if he returned he did not know how to get along with his father. I asked if this would lead to any chance of the applicant being harmed and he said it was possible if his father had a few drinks. I noted his father lived in another province and he said his grandma had told him his father moved there but when he needs money and asks money from his grandma but his grandma doesn’t give his father any money. I asked if his father harms his grandma when she doesn’t give him money and the applicant said she does not, as she is a very respected person and his uncles are protective of his grandma. I noted that this might make me think his father would not harm him. The applicant said his father had harmed his mother, but agreed that this had been in the past. I noted that I was trying to understand if there was any chance he would face harm on return and I was not sure whether he would on what he had told me. He conceded that was the case.
Assessment of claims
At hearing the applicant stated that the written claims had been made up by the lawyer and were not true in their entirety. Given his claims at the hearing bore almost no relation to the written claims, and his express disavowal, I find that the applicant has resiled from his written claims and that these claims are not true. On this basis I do not accept any of the written claims made to fear harm or be subject to harm on return. Specifically, I do not accept that:
·His parents had taken a high interest loan from a local money lender, had been unable to pay and that their lives had been threatened and harassed by a money lender and criminal syndicate;
·The criminal syndicate caught him and forced or attempted to force the applicant to do hard work;
·The local public security did not protect them or was used to capture them, nor that the criminal gangs, the local money lender and officials were colluding together and covering up each other;
·The applicant escaped but his father was arrested and assaulted or hurt with serious injuries for the reasons claimed. I do not accept that the applicant’s father has been captured or assaulted for any reason connected to these claims;
·The applicant sued the criminal syndicate and the money lender to the public security bureau;
·The police covered up the criminals and the court refused to put on record the reason for the economic disputes.
·The criminal syndicate learned that they went to the police, things got worse and they started to insult him and his family at home every day;
·That the applicant left China and came to Australia for any reason connected to these claims.
In relation to the claims made at the hearing, I accept that the applicant’s father took out a loan from a bank, and that it may be for a large amount of money. I accept that the applicant’s father may sometimes ask the applicant for money, and I accept that most recently the applicant refused to pay him. I am willing to accept that the applicant’s uncle and grandfather broke the applicant’s leg in an altercation relating to the applicant’s father’s beating of the applicant’s mother. I accept that the applicant’s mother is in ill health with [problems] and that the applicant has been providing money for her medicine. I accept that the applicant’s father was violent towards the applicant’s mother, and that they divorced some considerable time ago. I accept that the applicant’s father beat the applicant once when he did not return home when he said he would.
I find however that, if the applicant returned to Fujian, taking into account the country information above, and his construction experience in Australia, there is a very good chance he could gain employment and support himself and his mother. I accept that building materials may differ in China but I do not accept that his skills and experience would not be valued in the Chinese construction industry.
I do not accept that there is any chance the applicant will be harmed by his father. As he noted, his father lives in a different province, and returns to Fujian sometimes. I do not accept that there is a chance that the applicant will see his father, and if he does, that there is any prospect that his father will harm him, as a fully grown adult. The evidence of the applicant is that his father harmed his mother when they were in a relationship, and beat the applicant once when he was a child. I do not accept that this provides a basis to conclude that his father will seek to harm the applicant, even despite the applicant refusing to give money to his father.
Does the applicant have a well-founded fear of persecution if he returns to China?
As above, I have found that the written claims are not true, and therefore I find that there is no real chance that the applicant will be captured, beaten, forced to do hard work, or harmed or mistreated in any way by local money lenders, criminal syndicates or the police or officials in league with them, for any reason, now or in the reasonably foreseeable future.
I find that the applicant can return to Fujian and gain employment in the construction industry there and support himself and his mother, and I find therefore that there is no real chance that his capacity to subsist will be threatened on return.
I find, for the reasons above, that there is no real chance that the applicant’s father will harm the applicant in any way, now or in the reasonably foreseeable future.
Taking the applicant’s claims which I accept together, I find that there is no real chance that the applicant will be harmed by anyone for any reason nor have his capacity to subsist threatened, on his return to China, now or in the reasonably foreseeable future.
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). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
Are there substantial grounds to believe that the applicant will suffer significant harm if he is returned to China?
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]

As detailed above, I have rejected the applicant’s written claims. I find that there is no real risk that the applicant will be captured, beaten, forced to do hard work, or harmed or mistreated in any way by local money lenders, criminal syndicates or the police or officials in league with them, now or in the reasonably foreseeable future.
As above, I have found that the applicant can return to Fujian and gain employment in the construction industry there and support himself and his mother, and I find therefore that there is no real risk that his capacity to subsist will be threatened on return.
I have found above that there is no real chance that the applicant’s father will harm the applicant in any way, now or in the reasonably foreseeable future. On the same reasoning, I find that there is no real risk that the applicant’s father will harm the applicant.
Taking the applicant’s claims which I accept together, I find that there is no real risk that the applicant will be significantly harmed by anyone nor have his capacity to subsist threatened, on his return to China, now or in the reasonably foreseeable future.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sean Baker
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 1426

20 March 2018

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