1802268 (Refugee)

[2022] AATA 488

1802268 (Refugee) [2022] AATA 488 (12 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802268

COUNTRY OF REFERENCE:                   China

MEMBER:Mr S Norman

DATE:12 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 12 January 2022 at 12:15pm

CATCHWORDS
REFUGEE – protection visa – China – failure to attend Tribunal’s hearing – fear of harm from moneylenders – insufficient details – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424, 426A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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 an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 January 2018 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 2 August 2017. The Department delegate’s decision was lodged with the Tribunal.

   CRITERIA FOR A PROTECTION VISA

2. 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.

   Mandatory considerations

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

5. By hearing invitation letter dated 17 December 2021 (dispatched by email), the Tribunal advised the applicant it had considered all the material before it relating to her application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a (video) hearing commencing 10:00am on 12 January 2022. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice.

6. By prior telephone contact of 11 November 2021, the Tribunal had advised the applicant (with the assistance of an interpreter) her hearing was scheduled for 12 January 2022. When she was told the hearing invitation would be sent to her authorised recipient, she said the authorised recipient (her ‘solicitor’) had returned to China. The Tribunal then advised the applicant how she might arrange to change her contact details – though no material advice was subsequently lodged. Be that as it may, and by emails from her original (and still current) authorised recipient’s email dated 28 December 2021, 1 January 2022 and 5 January 2022, the applicant contacted the Tribunal (about the below mentioned Microsoft Teams test).

7. As the hearing was to be conducted during COVID-19, the Tribunal had arranged for the hearing to proceed by video (and to which the applicant had agreed). In an effort to facilitate the applicant’s access to a Microsoft Teams video hearing, by letter of 23 December 2021 the Tribunal attempted to arrange a Microsoft Teams test for 6 January 2022; and by Tribunal email of 4 January 2022, and in response to her request, the test was re-scheduled to 7 January 2022. However, and when telephoned by the Tribunal on 7 January 2022, the applicant did not respond.

8. Neither did the applicant respond to the Tribunal s.424(2) letter dated 20 October 2021 (response due 3 November 2021).

9. On the day of the hearing, the Tribunal had attempted to contact the applicant by telephone at 9:45am, 10:00am and 10:30am. The applicant did not respond.

10. In the circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking further action to enable the applicant to appear before it.

    The applicant’s claims:

11. In her Protection visa (PV) application, the applicant said:[1]

    [1] PDF – from p.37 (‘PDF” refers to the merged Department file on the Tribunal CASEMATE database).  

    ·     she quit her claimed lower salary job in a factory and commenced to work in her own [business]. For that purpose, she had borrowed money from almost everyone she knew

    ·     in the first couple of years, the business was good and she paid off the debts quickly

    ·     in 2014 she wished to expand her business. However, at the same time she had trouble with the turnover of funds. She also said she had needed a lot of money to help a business get through this period

    ·     a bank rejected her loan application, so she borrowed 100,000 RMB (approximately AUD 21,280) from a money lender. She said the contract for the loan provided for a high penalty rate for late repayment

    ·     after one year,[2] the applicant wanted to pay the moneylenders back on time. They told her they were temporarily out of the country that month. They said she could pay them back when they returned and it would not count as a late payment

    ·     however, after one month, she was sent a bill with a high penalty rate and she could not afford to pay it

    ·     after this the applicant was confined to ‘legal home detention’. She yelled at them that her son would repay the money after they set him free

    ·     after their release, the applicant and her son had subsequently hid out at a distant relative’s home after closing down the shop in 2016. She said her hometown was very small and everyone knew each other

    ·     she said the local authorities would not accept their case as the moneylenders had ‘greased a few palms’ to avoid legal problems

    ·     she said she could not relocate within China because she would be chased wherever she went.

    ·     she also said it was hard to make a living in China under the horrible social morality

    ·     she said that if she and her son now returned to China, they would again be chased for the money that remained outstanding

    [2] PDF – p.37.

12. When asked by the delegate, the applicant had explained that friends had introduced her to the moneylenders (who were said to have a good reputation) and she needed the money for her business at the time. One month after borrowing the money, the applicant had made enough money to pay the moneylender back, she had contacted them but was told the lender was overseas. The moneylenders later told her that because she had not repaid the loan on time, the amount she owed had doubled from 100,000 RMB to 200,000 RMB (approx. AUD 43,854).

13. When asked by the delegate, the applicant said she had not repaid the money to the money lender. Amongst other things, the delegate noted the applicant had not been located for the five months she remained in China (after her release), to which the applicant said she had been changing her location and staying in each place for around 10 days to a fortnight before moving on. The delegate noted that on the applicant’s PV form, she had only provided one address for her residence in China for the period 1969 to the date of her departure in 2017.[3] When asked about the discrepancy, the applicant said her son filled in the PV form. She also said someone advised her that if she travelled overseas the moneylenders would not be able to find her and it would be easy for her to earn money. She said one of her son’s friends said Australia had good air quality and less people.

    [3] PDF – p.27.

14. Ultimately, the delegate did not accept the applicant was generally credible, and they did not accept her material claims to need protection were true and correct.

    Assessing the applicant’s claims:

15. The Tribunal has seen a photocopy of the bio-page of the applicant’s passport (expiry date 2027[4]); and I accept she is a citizen of China, and that China is her receiving country. However, the mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451). That said, the applicant did not provide sufficient detail to satisfy the Tribunal (ie) that even if she borrowed money from the claimed lender with the good reputation, she was prevented from repaying the loan for the reasons claimed; or that she would not have been able to repay the loan while she and her son were resident in, and (possibly) working in, Australia; or why she was unable to access effective State protection in China (given the country information considered[5]); or why she was unable to safely and reasonably relocate within China.[6]

    [4] PDF – p.19.

    [5] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 22 December 2021. [3.122 – 3.125].  

    [6] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 22 December 2021, [5.24].

16. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is materially applicable to the assessment of complementary protection claims.

17. That said, based on the claims she has provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has a well-founded fear of persecution for a reason prescribed in the Act; or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm.

18. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of suffering serious or significant harm in China.  

    Finding:

19. For the reasons given above, the Tribunal is not satisfied 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 considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

20. 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

21. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Mr S Norman
    Member