1731470 (Refugee)

[2018] AATA 4939

1731470 (Refugee) [2018] AATA 4939 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1731470; 1803783; 1802622

COUNTRY OF REFERENCE:                  China

MEMBER:Frances Simmons

DATE:29 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants protection visa.

Statement made on 29 October 2018 at 4:13 pm

CATCHWORDS
MIGRATION – Protection visa – China – not properly notified by delegate – particular social group – debtors owing to creditors – fear of harm by gang members – fear of false imprisonment – victim of physical torture – credibility issues – decision under review affirmed


LEGISLATIONS

Migration Act 1958 ss 36, 65, 5H(1)(a)-(b), 5J(1), 5J(2)-(6, 5K-LA, 424A, 499
Migration Regulations 1994 Schedule 2

CASES
CSV15 v Minister for Immigration and Border Protection [2018] FCA 699
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Selvadurai v MIEA (1994) 34 ALD 347
SZOFE v MIAC (2010) 185 FCR 129

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

1. This is a joint decision record in relation to three applications for review of decisions made by a delegate of the Minister for Immigration on 30 November 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are a husband and wife and their adult son.  [Ms A], [Mr B] and [Mr C] (‘the family’) made separate applications for protection visas. Each applicant claims to be at risk of harm in China because [Mr B] has unpaid debts to a loan company connected with gang members. The applicants all claim to be at risk of harm from the gang members.  

3. The applicants made separate applications for review of the decisions of the delegate to refuse to grant the applicants the visas.[1] The applicants are represented before the Tribunal by the same representative, [a] registered migration and solicitor. With the consent of the applicants the Tribunal held a joint hearing in these matters.

   [1] Tribunal files 1731470, 1803783 and 1802622.

4. The applicants attended the hearing on 16 July 2018 and gave evidence with the assistance of an interpreter in the Mandarin and English languages. After the hearing the Tribunal wrote to the applicants in accordance with s.424A of the Act and invited each applicant to comment or respond to certain information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decisions under review. The applicants provided a joint response to this invitation on 4 October 2018.

5. In these circumstances, the Tribunal considers it appropriate to provide its reasons for affirming the decisions under review in a single decision record.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Protection visa applications

6. The Tribunal has before it the Departmental files[2] in relation to the three applicants and the Tribunal files. There are no certificates issued pursuant to s.438 of the Act restricting disclosure of any material on Departmental files provided to the Tribunal.

   [2] [File numbers deleted].

   Background

7. The applicants are a family of Chinese citizens. [Ms A], who was born in Hubei [in date] and [Mr B], who was born in Hubei [in date], are married. [Mr C] is their son. [Ms A] and [Mr B] arrived in Australia [in] July 2017.

8. [Mr C] was born in Hubei [in date]. He first arrived in Australia [in] April 2017 and departed Australia [in] 2017. He returned to Australia [in] July 2017 and on 5 July 2017 he lodged a protection visa application.  

   Claims for protection

9. The written claims made by [Mr B], [Ms A] and [Mr C] are related. In summary:

   ·  [Mr B] borrowed RMB[amount] from [a] Loan Company for his [work] projects. However, the [market] was poor and he failed to deliver his projects on time and pay his loan. The loan company is connected with gang members.

   ·  Gang members were sent to falsely imprison [Mr B]. They tortured him by drowning him in water. [Ms A] and [Mr C] were all threatened and persecuted.

   ·  The applicants believe that if they return to China they will be falsely imprisoned by gang members and will suffer inhumane torture. Their lives would be threatened.

   ·  [Mr B] was captured by gang members and tortured. He was severely wounded when he escaped. He suffered a mental breakdown. [Ms A] received constant threats from gang members and her life was in danger.

   ·  Authorities used to intervene in their matter, however when they left, gang members continued to threaten and hurt their family. [Mr B] was told if he ran away they would break his legs. [Ms A] was told if she ran away they would harm her and her family.

   ·  Gang members have inflicted serious harm on the applicants. Gang members are widely connected and there is no safe place in China for them. If they could have received protection from the authorities they would not have suffered such inhumane treatment.

10. The protection visa applications do not detail where the applicants lived in China.

11. None of the applicants attended the interview with the delegate on 29 November 2017.

12. The delegate refused to grant the applicants protection visas in separate decisions made on 30 November 2017.  In each case, the delegate concluded that the written material did not provide a sufficient basis to be satisfied that the applicant would face any harm in China. The delegate was not satisfied that any of the applicants were persons to whom Australia owes protection obligations. 

    Application for review 

    Whether the Tribunal has jurisdiction in 1803783 and 1802622

13. The applications for review made by [Mr B] (1803783) and [Mr C] (1802622) were initially identified by Tribunal officers as applications that were not lodged within the relevant time limits. In a joint response to invitations to comment on the validity of the review applications, it was submitted that the notifications of the primary decisions with respect to [Mr C] and [Mr B] were not given to a properly appointed authorised recipient.[3]  The submissions attached copies of three emails sent to the Department on 4 August 2017 whereby it is said that each applicant properly appointed a migration agent and authorised recipient by filing a Form 956.

    [3] Tribunal file 1803783 (folio 53-69), Tribunal file 1802622 (folio 66-71)

14. The Tribunal made further inquiries. In an email dated 16 March 2018 the Department stated it had received the email dated 4 August 2017 in which the applicants appointed an authorised recipient. The Tribunal accepts [Mr C] and [Mr B] properly appointed an authorised recipient on 4 August 2017 and the decision-maker failed to correctly give notification to the authorised recipient.  Accordingly, the Tribunal finds that [Mr B] and [Mr C] were not properly notified of the delegate’s decisions. 

15. A failure to properly notify an applicant does not affect the validity of the primary decision. Compliance by the Minister (or his delegate) with the notification requirements under the Act and Migration Regulations 1994 (the Regulations) is, however, relevant to the determination of whether a valid review application has been made, as time limits for applying for review only commence to run once a person has been validly notified of the primary decision. If the time for applying for review has not commenced, a valid review application can nevertheless still be lodged.[4] In these circumstances the Tribunal finds that the relevant time limits for applying for review of the decisions to refuse to grant [Mr B] and [Mr C] have not yet commenced. Accordingly, the Tribunal has jurisdiction in relation to the review applications made by [Mr C] and [Mr B].

    Hearing

    [4] See SZOFE v MIAC (2010) 185 FCR 129 per Emmett J at [33] - [35].

16. The Tribunal interviewed the applicants together. The Tribunal then took evidence from [Ms A]. [Mr B] then gave evidence in the presence of his wife and [Mr C] gave evidence in the presence of his parents. Towards the close of the hearing the Tribunal discussed with all the applicants its concerns about the credibility of their claims and foreshadowed that it would write to the applicants pursuant to s.424A of the Act. What follows is a brief summary of the evidence the applicants provided at the hearing. Where relevant their evidence is discussed further below in the Assessment of Claims and Evidence.

17. During the hearing each applicant advised the Tribunal that the information in their application was true and correct. The applicants all maintained that they were at risk of harm from gang members (sometimes referred to as loan sharks) in China because [Mr B] had outstanding debts. [Mr C] also said that he would be depressed if he had to return to China and he might consider self-harming. At the close of the hearing each applicant confirmed that they had put forward all their claims for protection.

18. [Ms A] said that before she left China she was living in Shenyang, Changchun and Wuhan. Her last address was in Wuhan in Hubei province (her home town). She lived there for more than two months and then she came to Australia. [Ms A] could not remember what year she started living in Shenyang as her mind was not clear. Her son was [age] or [age]. He is now [age]. From Shenyang she went to Changchun in Jilin province where she lived for ‘five to six months’ before returning to Wuhan in Hubei province. They usually went back to their home town (Wuhan) in Hubei every year for Chinese New Year. After the holiday they went back to wherever they could find a job. Her parents and her parents-in-law live in Wuhan in Hubei.

19. [Ms A] told the Tribunal her son finished school in March 2017 in Shenyang. Asked whether her son remained at school in Shenyang when she went to Changchun in Jilin province, she said this was correct. Her husband was with her in Jilin province. Asked if her husband was with her when she went back to Wuhan in the months before she travelled to Australia she said he went there and then to some other places, either for business purposes or escaping from the debt collectors, so he was moving around in different places. Asked if he was in Shenyang with her, she said yes.

20. [Ms A] told the Tribunal that before she left China she was a housewife and her husband had a [business]. Now she is in Australia she is [working].

21. [Ms A] told the Tribunal that she is afraid of returning to China because there were many debt collectors looking for her husband and they threatened to kill her son if they did not pay off the debt. The Tribunal referred to her written claims that she was afraid of gang members. [Ms A] told the Tribunal her husband borrowed a huge amount of money, they charged a huge amount of interest and they had no ability to pay it off, the business stopped operating because they did not have money, and the workers stopped working for them. [Ms A] said that they sold their valuables to pay the debt but they still couldn’t make it.

22. [Ms A] said she is also afraid of relatives because they are in debt to her husband’s relatives and her relatives. The Tribunal asked (twice) whether her relatives would harm her. She said her relatives are OK, they wouldn’t harm her, but her husband had a few friends who threatened to break his legs if they saw him.

23. [Ms A] told the Tribunal her husband borrowed some money about one or two years ago and he was able to pay some interest at the beginning but he couldn’t pay off the principle and these people became angry. The Tribunal asked if he borrowed money in 2016 or 2017. She said she didn’t know, maybe the year before last year. The Tribunal noted that would be 2016. She responded maybe it was 2015.  She told the Tribunal that she and her husband were both living in Shenyang at the time he borrowed money. 

24. [Ms A] told the Tribunal that [Mr B] borrowed more than RMB[amount]. Her evidence was that they borrowed money from the loan sharks as well as relatives. [Ms A] was asked whether she could name the company or people she borrowed money from, she named a person called [(MG)]. The Tribunal asked whether there was a company name. [Ms A] said she didn’t know much about it; her husband knew. She didn’t know the name of her husband’s business.  She was a housewife; she didn’t look after his business, and didn’t know much about what projects he was doing.  Asked if she could be specific about how much money her husband borrowed, she said they sold their valuables and paid part of the loan but they still owed about RMB[amount] plus another RMB[amount range] borrowed from relatives. 

25. [Ms A] told the Tribunal that [Mr B] borrowed nearly RMB[amount] because he had a project and he signed an agreement with a company. At the beginning of the contract they needed to pay the money. After a certain stage the company would start to pay them money. But this company did not pay them according to the contract. When asked to name this company, [Ms A] referred to a person – [name]. The Tribunal sought to clarify with the applicant the name of the loan company her husband borrowed money from. She said it was called [name] ‘whatever’ company – they had a name she couldn’t remember. The Tribunal noted her husband entered into an agreement with a person named MG but she couldn’t remember the name of the company. [Ms A] did not know the name of the company that would pay her husband for the project. She never went to his [work place].

26. [Ms A] confirmed her evidence was that [Mr B] entered into a deal in Shenyang city and he borrowed nearly RMB[amount] when they were living together in Shenyang city, around one to two years before they came to Australia. The company didn’t pay the money so they were not able to pay the workers and the project stopped. Everyday there were people looking for her husband and he was hiding from these people. Asked where he was hiding, she said in his home town, in his parents’ place, in his brothers’ place.

27. In response to the Tribunal’s questions, [Ms A] gave evidence her husband was physically harmed. Asked whether he was harmed on more than one occasion, she said yes. Questioned further, she told the Tribunal his friends saved him two times and she saved him once, she sold her valuables in her house and in Spring Festival 2016 she paid money to these people so he could be released. Asked who she paid money to, she said the people who harmed him. The Tribunal put to [Ms A] that she needed to be as specific as possible otherwise it might be concerned that aspects of her evidence were vague and lacked detail. She said she paid the money to the young people who were working for MG; she transferred between RMB[amount to amount] to his card so her husband could be released, and MG agreed to give her husband one month so he could sort out other ways to get money.

28. [Ms A] told the Tribunal that she has not paid off any debts in China while she had been working in Australia. Her husband’s father has liver cancer so they need to give him money for the medical costs and they also need money for expenses in Australia.

29. When the Tribunal referred [Ms A] to her written claims that people tried to drown her husband, [Ms A] told the Tribunal that this happened in Spring 2016. Asked if she went to the police for help, she gave evidence that it was his friends who helped him. She didn’t know about what happened to him as she argued with him and went to stay with her sister in Anhui for a month. She didn’t really know about it until after his friends had saved him. The Tribunal referred to her claim that she paid about RMB[amount] to have her husband released. She told the Tribunal this was not the same occasion: the time her husband was drowned was in Spring 2016 and the time she transferred the money was in the Spring Festival in 2017. It was put to her that she had earlier said that she transferred the money in Spring Festival in 2016. She then said it was Spring 2016 in March that her husband was taken by these people and his friends saved him. Asked when she went to stay with her sister, she said this was in February 2016. 

30. [Mr B] was asked to identify the last place he lived in China. He told the Tribunal he was living in Changchun in Jilin province and then he went to the places of friends and relatives in Hubei and Anhui. [Mr B] told the Tribunal that he borrowed RMB[amount] from [a] Loan Company in July 2016. Asked if he borrowed any additional money, he said no. Asked whether he borrowed any additional money from any other sources, he then said he borrowed about RMB[amount] from relatives and they mortgaged the house in Hubei and borrowed RMB[amount].

31. [Mr B] told the Tribunal he was living in Changchun when he borrowed the money. He had lived in Changchun for two years: from the middle of 2015 until 2017.  His son went to school in Shenyang.  He stopped studying because of the loan problem in Spring Festival 2016. Usually he is in boarding school but he came home during the school holidays. His son last attended boarding school in November 2016. The Tribunal put to him that he had said his son stopped going to school in March 2016 because of the loan problem. [Mr B] then said he borrowed the loan in the middle of 2016. [Mr B] told the Tribunal his son stopped going to school in November 2016 because these loan people always went to his son’s school and to his house (in Changchun) to harass him. When they were hiding from these people they had to bring their son with them.

32. The Tribunal asked if he was ever physically harmed by loan sharks. He said yes, in October 2016.  There was another occasion in March 2017. Asked to confirm that he was harmed on two occasions (in October 2017 and March 2017), he said these were the most serious times, but there were a few smaller occasions when he was physically attacked.

33. [Mr B] told the Tribunal he sought police assistance in October 2016 in Changchun. Asked if his wife lived with him, he said she was living in Shenyang and she went to Changchun occasionally. It was put to him that his wife said he was living in Shenyang when he borrowed the money from the loan sharks. He said yes because he spent his time in two places. His wife also came to Changchun. Most of the time he was in Changchun. Asked whether he borrowed money from loan sharks in Shenyang or Changchun, [Mr B] said at the beginning he was living in Shenyang but when he borrowed the loan he spent his time in those two places. He borrowed money in Changchun.

34. The Tribunal asked why he hadn’t provided any documentation in relation to the money that he borrowed from the loan company. [Mr B] said that when he came to Australia he did not bring any of those documents as he did not think bringing these documents would be useful.

35. The Tribunal referred to [Mr B]’s written claims that he was tortured by drowning. The Tribunal asked when this incident occurred. [Mr B] said that this incident occurred in October 2016. He showed the Tribunal [a permanent injury inflicted] by those people.  

36. In response to the Tribunal’s questions, [Mr B] told the Tribunal that at the beginning he paid some interest on his debts but then after [the project] stopped he wasn’t able to pay any interest. After his wife became aware of the loan sharks she also paid off some of the debts. [Mr B] was asked about when his wife repaid the debt and how much she paid. He told the Tribunal she paid over RMB[amount] in August or September 2016.  She paid this money because he wasn’t able to pay the interest and these people were looking for him. He did not have a work permit in Australia and so could not repay debt here.

37. The Tribunal asked what the police did when he approached them for assistance. [Mr B] told the Tribunal that the police helped to negotiate with the loan sharks and they agreed not to harass him anymore.  However after the police left, the loan sharks continued with the harassment. When he was asked why he hadn’t provided a police report, he responded that he only made a telephone report.

1. [Mr C] told the Tribunal the reason he was afraid of returning to China was because of his parents’ issue. At the beginning he did not have a good understanding of this issue and then he was forced to stop his study because of those problems. If he had to return to China he would face harm.  Asked who would harm him, [Mr C] said someone he did not know; someone from outside in the community. [Mr C] thought he would harmed because his family owed debt to these people but he didn’t have a clear understanding of what was going on because he was quite young. He was threatened and harmed by these people. His life was seriously disrupted and he was depressed. He felt better after he came to Australia but if he returns to China he will be depressed again.

2. [Mr C] confirmed he lived in Shenyang city where he went to school. He was over [age] years of age when he started going to school. He couldn’t remember clearly because when he was living in China he was always scared. If someone knocked on the door he was horrified. This was why he did not want to return. Asked how old he was when he became aware his father was being targeted by loan sharks, he said about [age] or [age]. He was asked (twice) where he was living at this time. He said they did not have stable accommodation because his dad was bankrupt so they had to move around to avoid being found by these people. Questioned further, he said he was living in Shenyang when he became aware his father owed money to loan sharks. Asked whether he was attending school at this time, [Mr C] said he had been in school for some time and then he stopped because of those reasons.

3. [Mr C] was asked when he stopped attending school. He said that he was sorry, he could not remember.  Asked why not, he said too much happened during that time: he was scared every day and he was depressed. He did not want to remember those things as they made him scared. [Mr C] was asked about the date he first travelled to Australia. He said he could not remember the date but it was in late April 2017. Asked what month he stopped going to school, he said he really could not remember. It was put to [Mr C] that it was difficult to accept that he could remember the month he travelled to Australia but not what month he stopped going to school. [Mr C] said that his dad was having problems with the gang members and those problems affected him and his mother as they were also harmed by those gang members.  His parents saw him getting depressed so they decided to send him to Australia for a holiday so he could relax.  

4. [Mr C] claimed his father was physically harmed by these people when they were looking for him and that they threatened him and his mother. Asked whether he was physically harmed, he said no.  He asked rhetorically whether a teenager would feel scared if the teenager was threatened by a gang member. He was not strong enough to tolerate the threats.

5. The Tribunal referred to [Mr C]’s written claims which state his father was tortured by drowning.  [Mr C] could not remember when this incident occurred.

6. The Tribunal put to [Mr C] if he was afraid of being harmed in Australia he would have applied for a protection visa when he first travelled to Australia rather than voluntarily returning to China, and that his voluntary return suggested that he was not afraid of being harmed in China. He said the first time when he came here he was only thinking about having a holiday but he also had thoughts about staying here. Because he was quite young (he was [age] when he first travelled to Australia) he couldn’t survive by himself.

7. [Mr C] was questioned again about when he stopped going to school. [Mr C] told the Tribunal he stopped going to school in 2016. He did not remember what month he stopped going to school. He didn’t know whether it was start of 2016 or the end of 2016. The Tribunal noted that his father said he stopped going to school in November 2016 and his mother said he stopped going to school in March 2017. Asked if he could clarify when he stopped going to school, he said he didn’t know.

8. The Tribunal asked when was the last time [Mr C] was personally threatened by loan sharks, he said he was ‘moderately depressed’ so he wouldn’t want to remember the date when he was threatened and he didn’t think it was necessary for him to remember this date.

9. The Tribunal explained to [Mr C] it was a matter for him what evidence he put forward support his case, but he had not provided any medical evidence that would explain why he could not remember details such as when he finished school. [Mr C] told the Tribunal he was facing persecution. He shut himself in the house and was afraid of the door knocking. He saw the psychologist but he wouldn’t ask the psychologist to issue any letters to prove it. If they returned to China they would be found by the gang members and tortured. Maybe he would be killed before he was [age] years of age. Later in the hearing [Mr C] suggested he might consider ending his life if he returned to China. The Tribunal again noted it had no medical evidence about [Mr C]’s mental health and explained it was a matter for him what evidence he put forward to support his case.

10. The Tribunal put to the applicants that mainland China had a population of 1.38 billion and a land area of 9.6 million square kilometres. Country information indicated that there were many opportunities for internal relocation[5] and the parents had travelled to different parts of China for work. Even if the Tribunal were to accept that they had outstanding debts in China the Tribunal might find it difficult to accept that loan sharks would be able to find them wherever they went in China.

    [5] ‘DFAT Country Information Report: People’s Republic of China’, DFAT, 21 December 2017, CISEDB50AD7983 p.5, p.39.

11. [Mr B] referred to a similar case where ‘a person escaped to another province and was found and they got him back’ and cut the tendons in his feet.  [Ms A] stated they couldn’t settle down in another part of China because of the possibility people will find them. [Mr C] will get scared and he does not have any work experience. If they returned to China their work would not be able to support him to have a good life. The Tribunal noted [Mr B] and [Ms A] supported [Mr C] through boarding school and they were able to send him to Australia twice. [MS A] said his son wasn’t feeling good and he was scared.  His relatives suggested that he travel outside China and gave him money to do so.

12. After the hearing the Tribunal wrote to the applicants pursuant to s.424A of the Act to invite them to comment or respond to information that would be the reason or part of the reason for affirming the decisions under review.[6] On 4 October 2018 the Tribunal received a joint response to the s.424A invitation.

    [6] The applicants requested and were granted an extension of time to respond to s 424A invitations.

    CRITERIA FOR A PROTECTION VISA

13. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to 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.

14. 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.

15. 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) of the Act. 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).

16. Under s.5J(1) of the Act, 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 of the Act, which are extracted in the attachment to this decision.  

17. 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

18. 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. The Tribunal has also had regard the country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) on China expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    ASSESSMENT OF CLAIMS AND EVIDENCE

19. The applicants travelled to Australia on Chinese passports and the Tribunal accepts on the basis of their passports that they are Chinese citizens. The Tribunal finds that China is the country of reference for the purpose of assessing the applicants’ claims to be owed protection obligations by Australia.

    Whether the applicants claims are credible

20. The determinative issue in this case is whether the applicants’ claims are credible. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

21. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims[7] and it has had regard to the Tribunal’s guidelines on the assessment of credibility in protection visa matters. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[8] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[9]

    [7] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2011 at paragraph 196.

    [8] MIMA v Rajalingam (1999) 93 FCR 220.

    [9] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

22. The Tribunal accepts that the applicants were nervous appearing before the Tribunal and has taken these factors into account in assessing the credibility of their claims.  In response to concerns raised by the Tribunal, it has been asserted that both [Mr C] and [Ms A] suffer from memory loss and depression. At the hearing the Tribunal observed all three applicants were able to respond to and understand questions about their migration history and background. No medical evidence has been provided to support the assertion that [Ms A] and [Mr C] suffer from depression and that this, or any other medical condition, would explain or excuse the problem the Tribunal has identified with their evidence. For reasons that are discussed below, the Tribunal is not satisfied that the problems identified with aspects of the evidence provided by [Ms A] and [Mr C] can be explained or excused by memory loss. 

23. Before the Department each applicant submitted a statement asserting that every member of the family is at risk of harm because [Mr B] has outstanding debts to a loan company connected with gang members. The written claims are brief, expressed in general terms, and not tethered to dates or places.  The Tribunal asked the applicants why they did not attend the interviews with the delegate as this would have been an opportunity to provide further evidence about their claims. [Mr B] and [Ms A] indicated that because their son has some English he communicated with their solicitor.  However, [Mr C] told the Tribunal he was relying on his parents.  [Ms A] then suggested that her son may not have told them about the interview because he did not understand its importance. [Mr B] said they did not really receive any notice about the interview. In circumstances where two of the three applicants were not properly notified of the delegate’s decision and the interview invitations do not appear on the Departmental files, the Tribunal has not placed any adverse weight on the fact that the applicants did not attend the interview with the delegate in assessing the credibility of their claims.

24. Having considered the applicants’ written claims and their oral testimony to the Tribunal, the Tribunal has significant concerns about whether the applicants are credible witnesses and the veracity of their claims. In summary, the Tribunal was concerned that [Ms A] and [Mr B] provided inconsistent evidence about important elements of the applicants’ claims and that [Ms A]’s evidence was vague, and shifted over the course of the hearing. Despite claiming he had been threatened by gang members, [Mr C] was unable to detail when he was forced to stop attending school or when he was last threatened by gang members. Nor did any of the applicants adequately explain why [Mr C] voluntarily returned to China in May 2017. The applicants’ claims were not otherwise credible by reason of persuasive detail or corroborating documentation.

    Inconsistent evidence about when [Mr B] was targeted by gang members, where the debt with loan company was entered into, when [Ms A] made repayments

25. The Tribunal was concerned that [Ms A] and [Mr B] gave inconsistent evidence about when [Ms A] repaid money to gang members and when the gang members attempted to drown [Mr B].  As the Tribunal put to the applicants, [Ms A] told the Tribunal that gang members attempted to drown [Mr B] in Spring 2016 (in March). In contrast, [Mr B] told the Tribunal that gang members attempted to drown him in October 2016 and he claimed gang members also harmed him in March 2017. The Tribunal was also troubled that [Mr B]’s evidence was that he did not borrow money from [a] Loan Company until July 2016, some months after [Ms A] claims gang members attempted to drown him in March 2016. The applicants have submitted that JW and [Ms A] gave inconsistent evidence about the attempt to drown [Mr B] because ‘too many things had happened and [Ms A] could not have a good recollection in time for each event’. The Tribunal is not persuaded by this explanation. While the Tribunal appreciates that [Mr C] and [Ms A] did not claim to be present when gang members attempted to drown [Mr B] event, all of the applicants refer to the attempt to drown [Mr B] in their written claims. The Tribunal considers it is reasonable to expect that the applicants would give broadly consistent evidence about when gang members attempted to drown [Mr B]. The fact that [Mr B] and [Ms A] gave contradictory evidence about when this event occurred calls into question the veracity of this claim and, more generally, the credibility of the applicants’ claims. These doubts are deepened by the fact that [Mr C] could not recall when gang members attempted to drown his father.  

26. The Tribunal was also troubled by other inconsistencies between the evidence of [Ms A] and [Mr B]. As the Tribunal put to the applicants in accordance with s.424A, [Ms A] told the Tribunal that she paid RMB[amount to amount] to gang members in Spring Festival 2016. She told the Tribunal this was not the same occasion as when her husband almost drowned (she said the attempted drowning occurred in Spring 2016). In response to further questions about when she transferred money to gang members, [Ms A] told the Tribunal she made this payment during the Spring Festival in 2017. When the Tribunal put to [Ms A] that she had earlier told the Tribunal that she transferred money to gang members in the Spring Festival in 2016,[10] she referred again to her husband being taken in Spring 2016. As the Tribunal put to the applicants it was concerned that that [Ms A]’s evidence about when she paid money to gang members was confused, internally inconsistent and not credible. Furthermore, the Tribunal was also concerned that [Ms A]’s evidence about when she paid evidence to gang members was inconsistent with the evidence of [Mr B], who told the Tribunal that [Ms A] paid over RMB[amount] to gang members in August or September 2016. 

    [10] In 2016 Spring Festival holidays began on 7 February 2016 and concluded on 13 February 2016. 

27. The Tribunal has considered the evidence that [Ms A] has problems recalling events, as she has sustained depression and memory loss due to her husband’s debts and the gang members’ threats. No medical evidence has been provided to support these assertions.  On the evidence before it, the Tribunal is not satisfied that [Ms A] suffers from any medical condition that explains or excuses the contradictions within her own testimony or the inconsistencies between her testimony and that of [Mr B] (set out above).  The Tribunal is concerned that the evidence of [Mr B] and [Ms A] about significant events was largely limited to generalities, inconsistent in significant respects, and lacking any persuasive details. The Tribunal’s concerns about the credibility of [Mr B] and [Ms A] as witnesses were deepened by the fact that, despite claiming he was also threatened by gang members, [Mr C] was unable to provide any meaningful details about the these threats.

28. The Tribunal put to the applicants that [Ms A] and [Mr B] have provided inconsistent information about whether [Mr B] was living in Shenyang city or Changchun city when he borrowed money from [a] Loan Company. As the Tribunal put to the applicants under s.424A, [Ms A] told the Tribunal that [Mr B] borrowed more than RMB[amount] in 2016 while he was living in Shenyang city. In contrast, [Mr B] gave evidence to the Tribunal that he borrowed [amount] RMB from [a] Loan Company in July 2016 while he was living in Changchun city in Jilin province. In response to the Tribunal’s concerns, the applicants submitted that [Mr B] travelled between both cities as he had [projects] on those cities. The Tribunal has considered this evidence and, while it is possible that [Mr B] worked in both Changchun and Shenyang in the years before he left China and travelled to Australia, the Tribunal remains troubled that the applicants gave inconsistent evidence about which city [Mr B] was living in when he borrowed money from [a] Loan Company.

1. The Tribunal is prepared to accept that [Ms A] was a housewife in China with limited education and that she was nervous in the hearing. The Tribunal has considered the submission that this explains why she could not recall the name of the loan company and was not aware of the details of her husband’s business or the exact amount of the loan (although she understood the loan to be in the amount of RMB[amount], including RMB[amount] from the loan company and about RMB[amount] from their relatives).  The Tribunal does not consider the differences between her evidence about the quantum of the debt and her husband’s evidence to be significant and is prepared to accept that [Ms A] was not generally involved in [Mr B]’s business dealings in China. However, the Tribunal remains concerned that [Mr B] and [Ms A] provided different accounts of whether [Mr B] was living in Shenyang or Changchun when he borrowed money from the loan company. As noted above, there were other inconsistencies between the evidence of [Ms A] and [Mr B] that cast doubt on the credibility of their claims.

2. Overall, the Tribunal found [Ms A]’s evidence to the Tribunal to be vague, confused and limited to generalities. At times [Ms A] contradicted herself. As noted above, [Mr B] and [Ms A] provided inconsistent evidence about important aspects of their claims. As the Tribunal put to the applicants this cast doubt on the credibility of the claims made by [Ms A] and, more generally, the credibility of all the applicants’ claims that they are at risk of harm in China because [Mr B] has outstanding debts. 

   [Mr C] was unable to provide information about when he was last threatened by gang members, or  when he was forced to stop attending school by gang members or when gang members tried to drown his father

3. The Tribunal was further concerned that [Mr C]’s evidence to the Tribunal was vague, lacking in detail and evasive. For example, when [Mr C] was asked who would harm him he said someone he did not know; someone from outside in the community. [Mr C] told the Tribunal that he thought he would be harmed because his family owed debt to these people but he didn’t have a clear understanding of what was going on because he was quite young. He claimed he was threatened and harmed by these people. His life was seriously disrupted and he was depressed. However, when asked about the last time he was personally threatened, he said he was moderately depressed so he wouldn’t want to remember the date when he was threatened and he didn’t think it was necessary for him to do so. Despite claiming that he was forced by gang members to stop attending school, when [Mr C] was asked when he stopped going to school, he responded he could not remember.

4. The Tribunal was concerned that [Mr C] could not provide any meaningful details about his claims for protection and this cast doubt on the credibility of his claims that the family is at risk of harm from gang members/loan sharks. As the Tribunal put to the applicants in accordance with s.424A of the Act, [Mr C] could not recall when he finished school or when his father was almost drowned or when he was last personally threatened by loan sharks/gang members. Furthermore, the Tribunal was concerned that the applicants gave inconsistent evidence about when [Mr C] stopped attending school. At the hearing it was put to him his mother said he finished school in March 2017 and his father said he finished school in November 2016 and he was asked to clarify when he finished school. [11]  He responded that he didn’t know.

   [11] The Tribunal acknowledges that there is an error in the s.424A invitation dated 11 September 2018 (it states that Mr JW stated his son finished school in November 2017 when in fact, as the Tribunal put to the applicants at the hearing, Mr JW stated his son finished school in November 2016). The applicants did not comment on this error but submitted that the question of whether that the time that Mr XW stopped attending school ‘is irrelevant to their claims and that Ms CL had a problems recalling what happened to her family’.

5. In response to the 424A invitation, the applicants have submitted that the time that [Mr C] stopped attending school ‘is irrelevant to their claims’ and that [Ms A] had a problems recalling what happened to her family. The applicants have claimed that their lives in China were disrupted by gangsters and that they were all persecuted and threatened. [Mr C] claims he was forced to stop his studies by gang members. The Tribunal does not accept that the question of when [Mr C] stopped attending school would be regarded as an unimportant event by the family or that the question of when [Mr C] stopped attending school is irrelevant to his claims. In the Tribunal’s view, the fact that [Mr C] was unable to provide any meaningful details about his claims that he had been threatened by gang members raises further concerns about the credibility of the applicants’ testimony and their claims to be at risk of harm in China.

6. The Tribunal does not accept that the applicants have adequately explained why, in circumstances where [Mr C] claims gang members forced him to stop attending school, [Mr C] was unable to remember when he stopped attending school in China. Even if it were accepted that [Mr B] did not know much about when his son finished school because he was working elsewhere, the Tribunal remains concerned that [Mr C] initially stated he could not remember when he stopped attending school (he later stated he stopped attending school in 2016 but could not recall whether he did so at the start of 2016 or the end of 2016), while his mother stated he finished school in March 2017.

7. In assessing the credibility of [Mr C]’s evidence, the Tribunal has considered [Mr C]’s evidence that he was moderately depressed, young, scared and a lot was happening. No medical evidence has been provided about [Mr C]’s mental health. [Mr C] told the Tribunal that he was facing persecution and he shut himself in the house and was afraid of the door knocking. He said he saw the psychologist but he wouldn’t ask the psychologist to issue any letters to prove it. While it is possible that [Mr C] has seen a psychologist in the past, on the evidence before it, the Tribunal is not satisfied that he suffers from any medical condition that would explain or excuse the poor quality of his evidence to the Tribunal (including why he could not provide details about when he was last threatened by gang members, when he stopped attending school and when gang members attempted to drown his father). The Tribunal is drawn to the conclusion that the poor quality of [Mr C]’s evidence reflects the fact that the events described in his written claims never actually happened to him and his family.

   Conduct of [Mr C] in returning to China is inconsistent with claimed fear of harm

8. The Tribunal was told that [Mr C] first travelled to Australia in April 2017 [and] returned to China. [Mr C] told the Tribunal that he first travelled to Australia because his father had a large debt and his parents did not want the debt to affect him, so they asked him to come to Australia. As put to the applicants under s.424A, Departmental movement records confirm that [Mr C] arrived in Australia [in] April 2017 and departed Australia [in] May 2017 on a flight to China before returning to Australia [in] July 2017. The Tribunal put to [Mr C] that his voluntary return to China suggested that he was not afraid of being harmed in China. He said when he first came to Australia he was only thinking about having a holiday but he also had thoughts about staying here. Because he was quite young ([age]) he couldn’t survive by himself. However, as the Tribunal put to the applicants under s.424A, the Tribunal was concerned that the fact that [Mr C] voluntarily returned to China from Australia [in] May 2017 undermines the claims made by the applicants that [Mr C] would be harmed by gang members because [Mr B] was unable to pay his outstanding debts.

9. The Tribunal has considered the applicants’ evidence that as [Mr C] was [age] years old and his family could not support him financially, [Mr C] had to return to China in May 2017 due to his inability to support himself in Australia. The Tribunal does not does not accept that the applicants have adequately explained why [Mr C] voluntarily returned to China. The Tribunal notes that [Mr C] was able to secure the funds to travel to Australia alone in April 2017, return to China in May 2017, and travel back to Australia less than three months later in the company of his parents in July 2017. In the Tribunal’s view, the fact that [Mr C] voluntary returned to China in May 2017 casts further doubt on the genuineness of his claims that he believes he will be killed or otherwise harmed by gang members. This in turn casts doubt on the credibility of the claims made by all three applicants that the family is at risk of harm from gang members.  

   Claims not otherwise credible by reason of corroborating documentation or persuasive detail

10. The applicants’ written claims are brief, untethered to places or dates, and largely bereft of meaningful detail. As detailed above, the Tribunal found the applicants’ oral testimony vague, sometimes contradictory, and not otherwise credible by reason of persuasive detail. The Tribunal acknowledges that if the applicants did in fact experience the events described in their statements then this would have been a difficult time for them but in the Tribunal’s views this does not explain or excuse the problematic aspects of their evidence. The Tribunal is also troubled by the fact that [Mr C] voluntarily returned to China in May 2017 as it considers that this conduct is difficult to reconcile with his claimed fear of harm.

11. The applicants’ claims are not otherwise credible by reason of corroborating documentation. At the hearing the Tribunal explored with the applicants why they had submitted any documentation to corroborate their claims: there is no agreement with the loan company and, although it is claimed the issue was reported to the police, no police reports.  [Mr B] informed the Tribunal that ‘these documents were all in China’ and, when questioned about whether there was a police report, stated he only made a telephone report to the police. [Ms A] told the Tribunal that they had thought to go overseas to escape but they didn’t really know about refugee visas until they came here and heard from others that they must apply for refugee visas before they could settle down and look for jobs.

12. The Tribunal did not find the applicants’ evidence that no documentation had been provided to corroborate their claims because the documents were in China and the police report was made by telephone to be persuasive. Having regard to its cumulative concerns about the credibility of their claims, the Tribunal is drawn to the conclusion that the reason no corroborating documentation has been provided is because no such documents exist, as no loan agreement was ever entered into and no police report was ever made.

    Conclusions

13. For the reasons given above, the Tribunal has concluded that the applicants are not credible witnesses and that they have manufactured their claims in the hope of obtaining a favourable immigration outcome.

14. The Tribunal does not accept that [Mr B] borrowed RMB[amount] from a company which was connected with gang members/loan sharks. The Tribunal does not accept that gang members attempt to drown [Mr B] or that he was ever physically harmed, falsely imprisoned, or threatened by gang members or that he had a mental breakdown as result of the pressure placed on him by gang members. While it is possible that [Mr B] moved from place to place in China for reasons relating to his work and borrowed money from relatives, the Tribunal does not accept that [Mr B] was ever forced to move or hide to avoid being harmed by gang members or anyone else who he owed money to. Because the Tribunal does not accept that [Mr B] was ever threatened or harmed by gang members or anyone else, the Tribunal rejects the claims that [Mr B] ever sought police protection from gang members.  The Tribunal does not accept that gang members/loan sharks or anyone else threatened to break his legs or that gang members threatened or otherwise harmed [Mr B], his wife or his son.

15. Because the Tribunal does not accept that [Mr B] was ever falsely imprisoned by gang members/loan sharks, the Tribunal does not accept that [Ms A] paid money to gang members to have him released or to give him additional time to repay his debts. The Tribunal does not accept that [Ms A] was threatened by gang members or otherwise harmed by gang members for the reasons claimed. The Tribunal does not accept that [Ms A]’s husband borrowed money from a company connected to gang members who targeted her, [Mr B] and [Mr C] when [Mr B] was unable to repay his debts. The Tribunal does not accept that [Ms A] was ever threatened or harmed by gang members/loan sharks as claimed, that she paid money to the gang members as claimed or that she was moving from place to place to avoid the gang members in the period before she left China.  

16. The Tribunal does not accept that [Mr C] was ever threatened or targeted by gang members because of his father’s outstanding debts or for any other reason. The Tribunal does not accept that [Mr C] was forced to stop attending school because of gang members or that he left China, either on in April 2017 or in July 2017, to escape threats and pressure from gang members. The Tribunal does not accept that [Mr C] has ever been threatened or persecuted by gang members, or that his family members have been threatened or persecuted in China. Because the Tribunal does not accept that [Mr C] is of any adverse interest to anyone in China, the Tribunal does not accept that there is a real chance that he will face harm of any type from gang members or from anyone else in China.

17. Towards the end of the hearing [Mr C] said if he went back to China he did not know whether he would commit suicide and he thought he might end his life as others had a good life and a stable family but he did not have any jobs or friends in China and he felt isolated.  There is nothing before the Tribunal to suggest [Mr C] has a history of self-harm. No medical evidence has been provided to support his assertions that he is experiencing depression or that his mental health will be adversely affected if he had to return China. While the Tribunal accepts that [Mr C] would prefer to remain in Australia, the Tribunal notes that he voluntarily returned to China in May 2017 and the Tribunal is not satisfied that he suffered harm of any type of this occasion.

18. The Tribunal views with great concern any suggestion that an applicant may self-harm. Having found [Mr C]’s claims that he and his parents are at risk of harm from gang members not credible, the Tribunal is prepared to accept that [Mr C] may suffers from depression for reasons that are not related to his claimed fear of gang members.  However, on the available evidence, the Tribunal is not satisfied that there is a real chance that [Mr C] will suffer physical or mental harm amounting to serious harm or significant harm if he returns to China for reasons related to his mental health. There was no claim made by [Mr C] that he would be denied medical treatment in China or that he would be otherwise harmed by others for reasons relating to his mental health.

19. The evidence before the Tribunal indicates that [Mr C] has family networks in China and that, while he has stated he did not work in Australia or China, the evidence indicates that his parents have supported him in both countries.The Tribunal is not satisfied that there is a real chance that any difficulties that [Mr C] may encounter if he returns to China, including difficulties relating to his state of mental health, would amount to serious harm or significant harm.  Furthermore and in any event, the concepts of serious harm and significant harm are concerned with acts perpetrated by others which cause the non-citizen to suffer harm.[12] Accordingly, neither s.36(2)(a), s.36(2)(aa) encompass the harm [Mr C] claims he will suffer from depression if he returns to China.

    [12] CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 at [30]-[35].

20. Given its findings of fact, the Tribunal does not accept that the applicants left China to avoid being harmed by gang members/loan sharks or any other person or group in China. The Tribunal finds that the applicants have not been truthful about the reasons that they left China or why they do not want to return to China now. The applicants do not mention debts to family members in their written claims. Even if it were to be accepted that the applicants have borrowed money from their relatives and they may have a mortgage on a house in Hubei, the Tribunal is not satisfied that the applicants are of adverse interest to anyone in China and rejects any suggestion that they might be at risk of harm because they borrowed money from relatives or anyone else in China. The Tribunal finds that there is no credible evidence that anyone in China wants to harm any of the applicants for any reason.

    The applicants are not refugees or owed complementary protection

21. The Tribunal has found the applicants’ claims are not credible. Having regard to its findings of fact, the Tribunal is not satisfied that any of the applicants face a real chance of serious harm or significant harm in China from gang members/loan sharks or any other persons or groups.  In view of its findings, the Tribunal does not accept that there is a real chance that, if the applicants return to China now or in the reasonably foreseeable future, they will face serious harm or significant harm for any of the reasons claimed. The Tribunal does not accept that any of the applicants face a real chance of serious harm for any of the reasons set out in s.5J(1)(a) of the Act or any other reason. Consequently, the Tribunal is not satisfied that any of the applicants has a well-founded fear of persecution as set out in s.5J of the Act.

22. The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that the applicants will suffer significant harm. The Tribunal has found that the applicants are not witnesses of truth. For the reasons given above, the Tribunal does not accept that any of the applicants are now, or were in the past, of any adverse interest to debt collectors, gang members, loan sharks, relatives or any other person or group in China. Having considered all the evidence before it, the Tribunal has concluded that the claims that the applicants to be at risk of harm from gang members/loan sharks are not credible. Furthermore, for the reasons given above, while the Tribunal is prepared to accept that [Mr C] may suffer from depression and has carefully considered his statements that he may contemplate self-harm if returned to China, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk he will suffer significant harm for any reason related to his mental health or for any other reason.

23. Having regard to its findings of fact, the Tribunal finds that there is no real risk that any of the applicants will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicants, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. Nor is the Tribunal satisfied that there is a real risk that any of the applicants will suffer arbitrary deprivation of their life or the death penalty. The Tribunal is not satisfied any of the applicants will be subject to significant harm for any reason, as a necessary and foreseeable consequence of the applicants being removed from Australia to China. 

    CONCLUSION

1. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

2. The Tribunal affirms the decisions not to grant the applicants protection visas.

   Frances Simmons
   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.

   …