1804734 (Refugee)

[2024] AATA 1121

1804734 (Refugee) [2024] AATA 1121 (1 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1804734

COUNTRY OF REFERENCE:                   China

MEMBER:Peter Papadopoulos

DATE:1 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 01 March 2024 at 3:00pm

CATCHWORDS
REFUGEE – protection visa – China – fear of harm from foster family – threat of arranged marriage and sale of Australia-born child – otherwise unable to register child – delay in applying for protection – applied to gain Medicare card after child’s birth – most claims acknowledged as false and discontinued at hearing – loan shark – sister-in-law’s illegal entry into third country to work and apply for protection – exaggerated and inconsistent claims, evasive and uncorroborated evidence and deliberate concealment of family’s circumstances – new relationship and second child not applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
AVQ15 v MIBP [2018] FCAFC 133
Fox v Percy (2003) 214 CLR 118
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sivalingam v MIMA [1998] FCA 1167
Sun v MIBP [2016] FCAFC 52
Sundararaj v MIMA [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. [The applicant] is a [age] year old Chinese national who arrived in Australia as the holder of a Subclass 571 visa [in] August 2007.  She has remained in Australia since, apart from a six-week stay in China between [January] and [February] 2011.  Her [Age] year old son, [the second applicant], is also a Chinese national.  He has resided in Australia since birth.

2. [The applicant] and her son applied for protection visas on 28 October 2015.  For sake of clarity, hereinafter [the applicant] will be referred to as ‘the applicant’, [the second applicant] will be referred to as ‘the applicant’s son’ and they will be collectively referred to as ‘the applicants’. 

3. On 7 February 2018, a delegate of the Minister for Home Affairs determined that the applicants are not persons to whom Australia owes protection obligations and thereby refused to grant them protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). This is an application for review of the delegate’s decision.

4. The issue in this case is whether each applicant is either a refugee or a person who meets the criteria for complementary protection.  The Tribunal also needs to consider whether each applicant is a member of the same family unit as a person who is a refugee or meets the criteria for complementary protection.  A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in the Attachment.

5. The applicant appeared before the Tribunal on 14 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CLAIMS AND EVIDENCE

   Claims and evidence provided to the Department

   Protection visa application

7. According to information contained in the protection visa application, the applicant:

   ·     is a [Age] year old woman who was born in China.

   ·     was abandoned by her own parents, and raised by foster parents who would beat her and curse at her on a regular basis.

   ·     was told by her foster father that he never liked her. Her foster grandmother showed her some kindness, and persuaded her foster parents to allow her to go abroad and study in Australia.

   ·     arrived in Australia in 2007 as a teenager.  Her studies suffered as she was pressured to work and send money home. She worked as [an Occupation] in [a Workplace]. 

   ·     was informed in April 2010 that her foster grandmother was very sick and in a critical condition.  She wanted to return to China to see her but was told that ‘it was a waste of money’.  Her foster grandmother died and she returned to China [in] January 2011 to pay her respects at the gravesite.

   ·     returned to Australia after this short trip to China and continued working instead of studying.  This lead to the refusal of her further student visa application.  Her foster parents were angered by the refusal of her visa application.  They pressured her into an arranged marriage with a man she did not love. They were paid a bride-price of RMB 300,000. She refused to agree to this arrangement.

   ·     gave birth to her son in [Year].  He was born out of wedlock. The birth was complicated and her son required some form of medical assistance.  Her foster parents changed their attitudes towards the baby when they found out he was a boy. They urged her to send her son to them, and she later realised they wanted to sell the child for money.  As the child was born in Australia, and had not been registered, it was easy to sell him and register him in the household of the buyers.

   ·     fears that if she returns to China with her son they will be detected upon arrival because her foster parents have connections in the ‘China customs house’.  Her foster parents would sell her son and force her into marriage for the betrothal sum.  If she resisted in any way, her foster parents would beat her to death.  If that does not transpire, she fears that it would be impossible to have her child to obtain hukou registration in China and thereby be regarded as unlawful and unable to attend school.

   Departmental interview

8. The applicant attended an interview with a delegate of the Department on 15 September 2017.

   Summary of the delegate’s decision

9. The delegate found that key aspects of the applicant’s testimony at interview were inconsistent with her written claims.  The delegate formed the view that the claims raised by the applicant in her written statement were either grossly exaggerated or largely unfounded as they had been based on the ‘worst case scenario’ of what she had read on social media and the internet.

10. The delegate accepted the applicant:

    ·     does not wish to return to China.

    ·     would experience a sense of shame and be subjected initially to gossip due to the fact she is an unmarried mother.

    ·     has a free and comfortable life in Australia.

    ·     is able to live independently in Australia and earn a comfortable wage.

    ·     would not be able to earn as much money if she returned to China

    ·     would not have as much independence if she returned to China.

11. The delegate did not accept:

    ·     the applicant is hated by her foster parents.

    ·     the applicant will be beaten by her foster parents.

    ·     the applicant will be sold into marriage.

    ·     the applicant’s child will be sold.

    ·     the applicant’s child will be unable to obtain hukou registration.

    Claims and evidence provided to the Tribunal

    The review application, pre-hearing submissions and evidence

12. On 22 February 2018, an application for review of the delegate’s decision was lodged with the Tribunal.

13. On 28 November 2023, the Tribunal sent the applicant a pre-hearing information form and requested that she complete it and return it to the Tribunal within seven days.  By way of completing this form, the applicant had an opportunity to provide further information in relation to her protection claims.  The applicant neither responded to this request nor furnished the Tribunal with a completed copy of this form.

14. The applicant did not provide the Tribunal with any pre-hearing submissions or evidence.

    The hearing: supporting documents and oral evidence

15. The applicant appeared before the Tribunal on 14 February 2024 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Where relevant the applicant’s evidence as presented at hearing is discussed below.

16. The applicant brought two of her Chinese passports to the hearing, the first issued in Fujian [in] 2007 and the second issued in Sydney [in] 2022.  The Tribunal took photocopies of the biodata pages and some other pages of these two passports and then returned the original documents to the applicant during the hearing.

    Post-hearing submissions and evidence

17. The applicant did not provide the Tribunal with any pre-hearing submissions or evidence.

18. CONSIDERATION OF CLAIMS AND EVIDENCE

    Nationality: Country of reference/receiving country

19. The applicants claim to be citizens of China.  The applicant provided to the Department a copy of her Chinese passport issued [in] 2007 and a copy of her son’s New South Wales birth certificate.  The delegate was satisfied that the applicant was using her own identity and documents.  The delegate was also satisfied that the applicant’s son was indeed the some of the applicant.  The delegate found that the applicant and the applicant’s son are Chinese citizens.  In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicants are citizens of China.  The Tribunal accepts that China is their receiving country for the purpose of assessing their claims for protection.

    Credibility

20. Assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[1]  There are special considerations in relation to asylum seekers. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

    [1] Fox v Percy (2003) 214 CLR 118

21. As credibility assessment is not an exact science, great care must be taken to ensure that the approach taken is reasonable, reflective and fair. The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[2]  As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.

    [2] For example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

22. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries.  As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

23. The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[3]   A similar approach is taken in the Department’s Refugee Law Guidelines[4]  and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[5] which provides useful guidance for this Tribunal.

    [3] SZLVZ v MIAC [2008] FCA 1816 at [25]

    [4] Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines)

    [5] UNHCR Handbook, re-issued February 2019 at [203]–[204]

24. In regard to decision-making generally, researchers have provided useful insight into subconscious influences on credibility findings. Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[6]  The Tribunal is conscious that there may be factors that consciously or otherwise influence decisions[7] and that one study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[8]

    [6] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511, H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9

    [8] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’

25. The Tribunal is guided by these decisions, research and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, trauma and/or cultural issues. A person may forget dates, locations, distances, events and personal experiences due to the lapse of time or other reasons.[9]   As suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[10] such factors are taken into consideration both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

    [9] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility (July 2015)

    [10] Ibid.

26. In determining whether an applicant is entitled to protection in Australia, it remains necessary to make findings of fact on relevant matters.  In assessing the credibility of an applicant’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an 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.[11]  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.[12]

    [11] MIMA v Rajalingam (1999) 93 FCR 220

    [12] 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

27. The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or felt for the reason claimed.  Likewise, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[13]  As the Tribunal explained to  the applicant at the outset of the hearing, s 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim.  The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims.  Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim.  It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision.  There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[14] 

    [13] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 91, Prasad v MIEA (1985) 6 FCR 155 at 169-170

    [14] Sun v MIBP [2016] FCAFC 52 at [69]

28. In the present case, the Tribunal takes into account the applicant’s lack of familiarity with the Tribunal setting and her relatively limited English language proficiency.  The Tribunal has also had regard to the AAT Migration and Refugee Division ‘Guidelines on Vulnerable Persons’.[15]  With this in mind, the Tribunal asked straightforward questions during the hearing, and paraphrased and checked the applicant’s responses where necessary. 

    [15] Administrative Appeals Tribunal, Migration and Refugee Division Guidelines on Vulnerable Persons (November 2018)

29. The Tribunal has also taken into account the AAT’s Migration and Refugee Division ‘Guidelines on the Assessment of Credibility’ both in the conduct of the hearing and evaluating the applicant’s evidence.  The Tribunal does not consider things like minor changes in dates, minor details omitted from claims in the written application, or minor mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility.  However, when the evidence set out here, some of it on critical matters, is considered cumulatively the Tribunal finds that these minor errors, inconsistencies and omissions together take on more significance and so have been given weight.

    The applicant’s claims and evidence

30. At hearing, the applicant gave evidence relating to her birth place in China, education in China and Australia, employment history in Australia, residences in China and Australia, family history and composition and history, immigration history, and the circumstances which led to the lodgment of the protection visa application.

    Disavowal of original claims at hearing

31. Asked at hearing why the applicants fear returning to China, the applicant disavowed the claims that she raised with the Department.  She told the Tribunal that the claims she had raised in her original protection visa application were unfounded and that she only lodged that application because she was an unlawful non-citizen at the time and needed a Medicare card in order to access subsidised health care services for her newborn son.  After further pressing by the Tribunal, the applicant explained that when her son was born on [Date], he had a condition which resulted in him experiencing severe difficulty with his breathing and that a doctor had intervened ‘to save his life’.  Her son was placed in an intensive care unit for three days following his birth.  She was unable to recall the name of this condition but indicated that she was worried that she could neither access nor afford ongoing treatment for his health issues and therefore decided to lodge a protection visa so that she could be granted a Medicare card for herself and her son. 

1. Asked why she had lodged a protection visa application instead of another visa application, she stated that she did not know anything about other visa options and that she did not receive any assistance when she prepared the protection visa application.  Asked why she had not lodged a protection visa earlier given that her son was just over [Age] before the protection visa application had been lodged and likely required access to health services during the first [Time span] of his life, she explained that she knew that lodging a protection visa application ‘was not good’ because she had heard from a friend that it would be difficult for her to lodge further visa applications thereafter.  She explained that a female agent, whose name she could not recall, helped her fill in the protection visa application form. 

2. After further pressing by the Tribunal, the applicant stated that the claims about her step-parents threatening her and her child were not true. She explained that her step-parents had never threatened to steal or sell her son and that they did not know anyone in the Chinese immigration authorities who would be capable of letting them know if and when she and her son had returned to China.  She stated that she had not been harmed by anyone during her visit to China between [January] 2011 and [February] 2011.  Asked to explain why she raised false claims in her application, the applicant said that she ‘wanted to find a reason’ to be a refugee and because she was not religious she presented these false claims.  Asked to explain whether her step-parents had tried to force her into marriage years ago, the applicant stated that this had occurred but was no longer an issue as her parents had already taken a betrothal sum of 300,000 RMB from her current partner [Mr A] in Australia. 

3. Specifically in relation to her son’s fears, the applicant did not raise any concerns at hearing in relation to a type of harm that her son may face in China. She told the Tribunal that if her son returned to China she was worried he would have difficulty adjusting to life there as English is his first language, he has limited facility in Mandarin and he is accustomed to the living environment and culture in Australia where he is currently a member of a [Sport 1] club and a [Sport 2] club. 

4. The applicant confirmed with the Tribunal that the claims raised with the Department about the harm she feared for herself and her son in China were fabricated or no longer exist.

   Presentation of new claims at hearing

5. Following the disavowal of the claims raised prior to the hearing, the applicant sought to introduce a set of new claims at hearing. These claims were presented in an iterative manner through the course of the hearing and her oral evidence in relation to these claims was inconsistent, vague and unsubstantiated.

6. At the outset of the hearing, the applicant explained that she has two children, her son born on [Date] and her daughter [Child B] who was born in Australia on [Date].  Her son’s father, [Mr C], abandoned the applicant and her son when he returned to China soon after her son’s birth.  She last spoke with [Mr C] in late 2014.  She is currently in a relationship with [Mr A], her [Child B]’s father.  [Mr A] is neither an Australian citizen nor permanent resident.  He is a Chinese national who has been living in Australia for over ten years. She and [Mr A] have been living together for about four or five years and she intends to marry him at some future point in time.  Her son and daughter also live with her and [Mr A] in their apartment in [Suburb].  The Tribunal is prepared to accept this evidence.

7. However, when asked about her family in China, the applicant explained that before she left China she lived in a house in [Village] in Fuqing with:

   ·     her step-father [Mr D];

   ·     her step-mother [Ms E];

   ·     her elder step-brother and only sibling [Mr F];

   ·     her sister-in law [Ms G];

   ·     [her two nephews], the children of [Mr F and Ms G]. 

8. Throughout the hearing, the applicant interchanged the description of the relationships between herself and her family members.  For example, at times, she described her step-father as her father.  The Tribunal draws no adverse inference in this regard, noting that she had previously described him as a foster father.  The Tribunal is prepared to accept that the applicant was taken in by her current family when she was abandoned by her biological parents. 

9. The applicant told the Tribunal that she last contacted her step-parents and [Mr F] in 2016 when her step-mother was diagnosed with breast cancer.  Asked whether she knew if her family were getting along well during the past eight years, she told that the Tribunal that she thought so as it was ‘just my feeling’.  Asked whether she had contact with anyone else in China, she told the Tribunal that when her daughter was born in 2023 she contacted [Ms G], some four years after she had last spoken with [Ms G].  Asked whether she and [Ms G] had discussed anything of interest in these conversations, such as what was happening in China, she responded: ‘No’.  Asked what they spoke about, she responded: ‘Not much, recent things’.  Notably, the applicant was not particularly forthcoming in relation to the nature and degree of contact she has had with her family members since leaving China.

10. Asked where she would live in China if she had to return there, she told the Tribunal that she would return to her family home in [Village] in Fuqing and reside with her step-parents, brother and his two boys.  Notably, the applicant did not include [Ms G] as a resident of the family home in Fuqing.

11. After further discussion, the applicant gave the following evidence:

    ·     Her family borrowed money from a loan shark to fund her initial trip to Australia.  During her return trip to China in 2011, her step-father told her that the loan shark would force him to sell the family home unless the loan was repaid.

    ·     She lodged a protection visa application in October 2015 because she wanted to get access to a Medicare card and continue working in Australia so that she could send money back to her family in China.  The claims raised in that application about the harm she feared were fabricated or no longer exist.

    ·     In 2016, her step-mother was diagnosed with breast cancer so the family needed more money for medical treatment.  Her family then borrowed money from a loan shark that was used to enable [Ms G] to get to [Country 1] in order to make money and send it to their family back in China.  [Ms G] left China in or around 2017, entered [Country 1] illegally by crossing [a border] and is now living somewhere in [Country 1].  [Ms G] has applied for refugee status.  [Mr F] and his children later followed [Ms G] and are currently living with her in [Country 1].

    ·     She was last told in 2017 that the loan shark debt was 600,000 RMB but her family in [Country 1] have already paid back half of that debt.

    ·     In 2019, her step-father was diagnosed with liver cancer.  The family did not have sufficient funds to enable him to receive treatment in hospital.  He suffered at home and then passed away.

    ·     Her step-mother now lives alone in the family home in [Village]. 

    ·     She fears that if her family has not repaid the loan shark and she returns to China, the loan shark will ‘sell her’ into some form of indentured labour arrangement such as ones that she has read about in the news where people in Hainan province had been ‘sold to work there to develop some internet games’.  She fears that the loan sharks will not release her until she has paid back the debt.

    ·     She does not know whether the police in China could protect her from the loan sharks.

    Findings

12. The Tribunal found the applicant to be relatively candid and generally forthcoming about her involvement in the preparation and lodgment of a protection visa application that contained false claims.  Accordingly, the Tribunal has formed the view that the majority of the applicant’s protection claims, as presented to the Department, were without foundation and cannot be accepted as they have been fabricated.  In other instances, the applicant disavowed some of those claims by indicating that the fear of harm alleged no longer exists.  For example, the applicant accepted that she would no longer be forced into marriage as she now has a partner who has already paid a betrothal sum to her family.  By way of further example, the applicant no longer feared that her son would be denied hukou registration and this accords with country information on this issue which indicates that children born overseas ‘out of policy’ are eligible for a hukou.[16]

    [16] Department of Home Affairs, Standard Q&A Report, China: 20220321143328 – Single Mothers – Overseas Born Children – Hukou – Social Compensation Fees – Fujian Province (1 April 2022), pp 6-8; DFAT Country Information Report – People’s Republic of China (22 December 2021), p 30

13. While the Tribunal notes the applicant’s willingness to disavow her original claims for protection, it finds that her involvement in the presentation of false and highly exaggerated claims to the Department in support of her protection visa application seriously undermines her credibility.

14. For the following reasons, the Tribunal has great difficulty accepting the new claims raised by the applicant at hearing in relation to her fear of harm from a loan shark in China.

15. First, the claims evolved during the hearing itself and many internal inconsistences in the applicant’s evidence cause the Tribunal to doubt the veracity of many aspects of these new claims.  For example, at an earlier point in the hearing the applicant told the Tribunal that she would return to China and live in her family home with her step-parents, [Mr F] and his two children.  At a later point in the hearing, she told the Tribunal that her step-father had died in 2019 and that [Mr F] and his two children were living in [Country 1].  Asked to account for this inconsistency, the applicant admitted that she had tried to conceal the truth from the Tribunal at an earlier point during the hearing as she thought it was better for her to try and keep her narrative consistent and that if she had told the truth about her brother and his family living in [Country 1], this might mean she would be told to leave Australia with her two children and go live with her family in [Country 1] where they are enjoying similarly high living standards.  The Tribunal has considered this explanation but finds that it does not overcome its concern.  The changing nature of the applicant’s evidence in relation to her family composition, their location and circumstances undermines the applicant’s credibility.  While the Tribunal appreciates that applicants may face difficulty presenting their claims in the hearing context, the applicant’s evasive responses and deliberate concealment of her family’s circumstances during the earlier part of the hearing makes it difficult for the Tribunal to accept her subsequent evidence in relation to the harm she now fears along with the factual matrix propounded as the basis of those fears.

16. Secondly, the applicant’s oral evidence in relation to the nature of the debt owed to the loan shark and her family’s capacity to repay that debt was inconsistent, vague and misleading.   At an earlier point in the hearing, the applicant claimed that she understood that in 2017 the debt amount was about 600,000RMB.  However, when pressed later in the hearing about the concern that this seemed somewhat vague and undetailed given her claim that her brother and his family were in [Country 1] and potentially had a greater capacity to repay the loan, the applicant then conceded that her brother had recently told her during Lunar New Year[17] that they had repaid some of the loan and the debt stood somewhere in the vicinity of 300,000 RMB but she was unsure of what additional interest was owed.

    [17] The most recent Lunar New Year occurred on Saturday 10 February 2024, which was four days before the hearing. See

17. Thirdly, the applicant’s oral evidence in relation to the identity of the loan shark, and the level of threat posed by this loan shark to her and her son, was similarly vague and undetailed.  When pressed at hearing on these matters, the applicant stated that she did not know the identity of the loan shark and could only recall one threat her father had received in 2011 from a loan shark telling her father that he would force the sale of their family home if he did not repay the loan taken out to send the applicant to Australia in 2007. In relation to the Tribunal’s concern about the lack of knowledge about the loan shark’s identity and any threats having been made by any loan shark to her and her family members since 2011, which in the Tribunal’s view tended to indicate that there was no real risk of serious harm in this case, the applicant elected not to give a response. 

18. Fourthly, when pressed to explain whether she might avail herself of available protection from the Chinese authorities against the harm posed by a loan shark in China, the applicant simply did not know.  The Tribunal has difficulty accepting that a person who genuinely fears harm from a loan shark would not have informed themselves of the nature and degree of protection offered by the authorities in China against such harm.  This lack of knowledge tends to indicate that the applicant has either fabricated this claim or exaggerated her fears in that regard.

19. Finally, the Tribunal notes the distinct absence of any corroborative oral or documentary evidence in relation to the claims raised at hearing.  While the Tribunal does not expect the applicant to corroborate all of her claims, it remains concerned that the applicant has elected not to provide witness statements from her family members in relation to these matters.  The Tribunal is of the view that the applicant has been provided with sufficient opportunity to substantiate these claims.  As stated above, on 28 November 2023, the Tribunal sent the applicant a pre-hearing information form and requested that she complete it and return it within seven days.  By way of completing this form, the applicant had an opportunity to provide further information in relation to her protection claims.  The applicant neither responded to this request nor furnished the Tribunal with a completed copy of this form. 

20. Having considered the above concerns on a cumulative basis, along with its assessment of the available evidence, the Tribunal finds that the applicant is not a witness of truth and does not accept the applicant’s claim that her family owes money to a loan shark.  The Tribunal has significant credibility concerns about the applicant’s evidence overall, particularly where it relates to matters regarding her relationships with her family members and harm that may arise in connection with such matters.  The Tribunal has sought to remain open-minded about the possibility that the applicant, despite admitting that claims she had made in the past were not true, could be telling the truth about a specific incident.  Nevertheless, the Tribunal has formed the view that is not the case in relation to the applicant’s claimed fear of harm from a loan shark in China.  Like the delegate’s characterisation of the applicant’s testimony at interview, the Tribunal similarly found the applicant’s evidence at hearing in relation to these new claims was inconsistent, grossly exaggerated, unfounded and premised upon ‘worst case scenarios’ she had read about on the internet.  Furthermore, it cannot be ignored that the applicant has a record of presenting false claims to the delegate about matters relating to her family.  Of particular concern to the Tribunal was the applicant’s willingness and ability to provide changing evidence during the hearing itself in relation to the composition and location of her family members.   Her disavowal of her original claims at hearing does not overcome the Tribunal’s underlying concern about her preparedness to rehearse and fabricate oral evidence.  For these reasons, the Tribunal does not accept the applicant’s claim that she will be harmed by a loan shark should she return to China.

21. The Tribunal accepts that:

    ·     the applicant was born in Fuqing, China.

    ·     the applicant’s step-father died in 2019.

    ·     the applicant’s mother lives in [Village] in Fuqing.

    ·     the applicants live with the applicant’s partner and daughter, namely [Mr A] and [Child B], at an apartment in [Suburb], New South Wales. 

22. The Tribunal does not accept that:

    ·     [Mr F], [Ms G] and their two children reside in [Country 1].

    ·     the applicant’s family members owe money to a loan shark.

    ·     the applicants face harm from a loan shark in China who would be seeking repayment of a debt owed by the applicant’s family members.

23. Taking into account the accepted evidence, the Tribunal finds that the applicants do not face a real chance of serious harm from loan sharks in China.

24. The Tribunal has otherwise considered whether the applicants will face serious harm or significant harm if they return to China but finds that, on the accepted evidence and available material, there is no prosect of such harm having been made out.  The Tribunal is not satisfied that there are any factors that pose a risk of harm to the applicant’s son or would prevent the applicant from re-establishing herself in China.  The Tribunal is not satisfied that the applicants face a real chance of being subject to serious harm – including the denial of a capacity to earn a livelihood of any kind where the denial threatens his capacity to subsist[18] – on their return to China.  At hearing, the applicant told the Tribunal that since arriving in Australia she has been working consistently in a range of low and semi-skilled occupations. On that basis, the Tribunal finds that she will be capable of securing and maintaining employment in China commensurate with her skills and work experience. There is no persuasive evidence before the Tribunal to indicate or suggest that the applicant is disabled or otherwise incapacitated, or would be perceived as such by people in China, such that she would not be able to secure employment in China on that basis. 

    [18] To take one of the non-exhaustive instances of serious harm set out in s 5J(5) of the Act.

25. Accordingly, taking into account the above findings, the Tribunal finds that the applicants do not face a real chance of serious harm, or real risk of significant harm, should they return to China now or in the reasonably foreseeable future.

    Conclusion

26. For the reasons given above, the Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

27. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

28. There is no suggestion that either 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 applicants do not satisfy the criterion in s 36(2).

    DECISION

29. The Tribunal affirms the decision not to grant the applicants protection visas.

    Peter Papadopoulos
    Member

    
    

    Attachment – Summary of the relevant law, mandatory considerations and an extract of key provisions of the Migration Act 1958

    The relevant law

    The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

    Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted below.

    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 below.

    Mandatory considerations

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

    Extract of key provisions of the Migration Act 1958

    5 (1) Interpretation

    …

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

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

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

    but does not include an act or omission:

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

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

    …

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

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

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

    …

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

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

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

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

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

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

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

    …

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

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

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

    …

    5H    Meaning of refugee

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

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

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

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

    …

    5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (b)     significant physical harassment of the person;

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

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

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

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

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

    5K    Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L    Membership of a particular social group other than family

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

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

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

    (c)     any of the following apply:

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

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

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

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

    5LA Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

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

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …