1810602 (Refugee)

1810602 (Refugee) [2021] AATA 4635 (12 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1810602
COUNTRY OF REFERENCE:                   China
MEMBER:Melissa McAdam
DATE:12 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 October 2021 at 10:53am
CATCHWORDS
REFUGEE – Protection visa – China – financial situation – family’s unemployment issue – debt owed – business commenced with criminal backing – money owed to applicant from business partners – late claims of Falun Gong – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 March 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 14 October 2017.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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 in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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.
SUMMARY OF CLAIMS AND EVIDENCE
Protection visa application
The applicant is [an age] year old man from China. The following is a summary of the claims and information he provided in his Protection visa application:
a.He was born in [year] in Sichuan Province. He submitted a copy of his Chinese passport. He lived in Ziyang in Sichuan Province.
b.He is married with two adult [children]. His wife and [children] are living in Ziyang in Sichuan Province.
c.He worked in a [factory] in China from October 1998 until June 2008. He worked in [another workplace] in China from July 2008 until December 2013. He then worked [in a third] company in China from January 2014.
d.In March 2015 he borrowed 160,000 yuan from a network financial mutual aid platform. At the beginning of June, the platform was closed and the money was not available. The applicant’s debt has risen to more than two hundred thousand. He repaid only one hundred thousand yuan. He still owes a lot of money, and every day it is increasing.
e.The creditors are sent every day to find the applicant and the money. He has no money to pay off the debt.
f.[In] April 2016, the creditor [Mr A] told the applicant to find money but the applicant had no money. The applicant fell to the ground and [Mr A] kicked his head and warned the applicant “No money to pay the debt so die!”
g.The applicant reported this to the Public Security Bureau, but because there was not a lot of damage to his body he could not file a complaint.
h.He looked for relatives and friends to borrow money to pay the debt but no one would lend him money.
i.He came to Australia in August 2017 on a Visitor visa.
j.He cannot relocate because his parents and children are at home. He has no ability to move his whole family. Moving costs a lot of money. His relatives do not want to leave home.
k.If he goes back to China with no money his creditors will kill him.
l.The Chinese government is against usury, but he has not heard the words of the government, so the government cannot help him.
Departmental Interview
According to the Department’s decision record the applicant did not attend the scheduled protection visa application interview.
Delegate’s Decision
On the information provided by the applicant the Delegate was unable to be satisfied that the applicant had a well-founded fear of persecution in China, or that he was owed complementary protection.
Information to the Tribunal
Tribunal Hearing, 23 September 2021
The Tribunal invited the applicant to attend a hearing on 23 September 2021 by MS Teams video as the hearing was held when COVID-19 pandemic restrictions were in place. The applicant did not respond to the hearing invitation. Two attempts to conduct a pre-hearing technology check took place on 31 August 2021 and 22 September 2021 using the contact details provided by the applicant, but the applicant did not make himself available for these.
On the morning of the day of the scheduled hearing the Tribunal was able to make contact with the applicant who requested that the hearing be conducted by telephone, by audio only. The Tribunal determined it was reasonable to hold a hearing by audio only, having regard to the nature of this matter and the individual circumstances of the applicant, and agreed to the applicant’s request.
The applicant appeared before the Tribunal on 23 September 2021 by telephone to give evidence and present arguments in relation to his application. The phone line was clear throughout the hearing, and the applicant was responsive and his answers were generally appropriate to the Tribunal's questions. The Tribunal was satisfied that the applicant was able to give evidence and present arguments to the Tribunal throughout the hearing.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The following is a summary of the information provided by the applicant at the hearing:
a.The applicant did not attend his Departmental interview because of the pandemic. The Tribunal put to him that his scheduled interview appeared to have been before the pandemic started. He responded that he did not attend the interview because he lived in Canberra and did not want to travel.
b.The applicant’s Protection visa application was lodged by a migration lawyer. The applicant provided the information that was included in the application. All the information in his visa application is correct.
c.He was born in Sichuan. He has not lived anywhere else in China. He has not lived or worked in any other country. He completed [number] years of middle school then dropped out. The only employment he has had in China is in [industry]. He worked in [industry] as [an occupation].
d.His parents, two children and wife are living together in Sichuan. His children are aged [age range]. His family’s difficulties in China are that his wife is unemployed and his children are studying. His parents do not work. The family rely upon government payments for low income earners. It is the bare minimum for them to survive. His wife worked in a factory until about two years ago. She is looking for more factory work but it is very difficult to get because of the high unemployment in China. The applicant only sends a limited amount of money back to them China as he needs his money for his expenses. In Australia he works as[an occupation] in [industry] 35 hours a week and earns about [amount] a week.
e.The applicant paid for his travel to Australia by borrowing money from two close friends. He borrowed 65,000 RMB.
f.He cannot return to China because it is difficult. It is difficult because of what occurred in the past, the financial reason and reasons he outlined in his application.
g.If he returns the government will put him in custody and it will be difficult for him to survive. The government will do that because the overall environment and circumstances have changed. There are many things that are hard to explain. It is hard in China to voice concerns. His opinion differs from that of the government in terms of public policy and that is harmful to the peace of the nation so he will be detained. For example in terms of Falun Gong. This is the extent of the detail he can explain.
h.The financial reasons he cannot return to China are the business disputes from before. People owed the applicant money and before he left he owed 300,000 RMB. Two people owed the applicant money. They are [name deleted] and another man whose name the applicant cannot remember. They owed the applicant 350,000 RMB in total. They owed him this money from the business. It was a [type of] business.
i.The applicant jointly owned the [business] with the two men who owe him money. In the end the business made a loss and the two did not pay the applicant back. He operated the [business] for two months, from May until June 2017. He came to Australia in August 2017.
j.The applicant owes money to [Mr B]. This is the only person the applicant owes money to. The debt is business related. He borrowed money from [Mr B] for the business. The applicant did not recover the money owed to him so could not pay his debt. The applicant repaid 50,000 of the debt. He repaid 10,000 more since he came to Australia. He cannot continue to repay the debt because he can barely make enough money to cover his own expenses. He can submit evidence of his employment to the Tribunal.
k.The Tribunal asked the applicant why he did not stay in China and continue to run the business. He responded because he owed money. The Tribunal put to him that his business had only started so why not stay to try to make money from it. He responded that the [business] can be very lucrative but if something goes wrong it becomes non-profitable and the situation cannot be turned around. What went wrong is the applicant was not able to repay his debt due to his failure to collect the money owed to him.
l.Others in the [business] have backing from groups and the applicant could not compete with them. The applicant’s business partners continue to operate the business because they have backing from others. The Tribunal asked the applicant if he was referring to the business that he owned together with his partners and he responded yes.
m.The Tribunal asked the applicant why he had not stayed in China to continue to run the business with his two partners. He responded that they pushed him out and refused to repay him. They will chase the applicant and he won’t find a place to settle down. The [business] is backed by thugs. They will physically assault the applicant. His business partners will do this to him, because he demands that they pay him back. They will assault him because they do not want to repay the money.
n.The [business] is operated by organised crime. They excluded the applicant from taking part in the business. The Tribunal asked the applicant if he had formed the business in partnership with criminals and he responded that in order for the business to survive he needed to have someone with that background. He was just a worker.
o.The Tribunal put to the applicant that what he was stating in the hearing was different from his statements in his Protection visa application. He responded that perhaps he did not make it clear enough to his migration agent. He does not remember who his migration agent was. The Tribunal put to the applicant that there was no record in his Protection visa application of him having a migration agent. He responded that he did not remember.
p.There is no other reason he does not want to return to China.
q.His family’s problems are just that they do not have employment. They have no other problems at the moment. The applicant cannot return and live with his family because he owes people money that he is unable to repay and there are people who refuse to repay him.
r.The government will imprison him because he has a different opinion about Falun Gong. He supports the principles they uphold of sincerity, kindness and beauty. The government does not support Falun Gong ideas. The applicant supports Falun Gong ideas by believing in the principles. He practices on a daily basis and also meditates on a daily basis. He hasn’t mentioned this before because he initially came to Australia due to the financial reason and he forgot to mention it.
s.He started practicing Falun Gong upon his arrival in Australia. He had some knowledge before. He does not want to get into this. He has family members in China. He is afraid his family will be implicated. The Tribunal explained to the applicant that the hearing and his application were confidential. He responded okay, he meditates everyday and upholds the principles and has lots of contact here.
t.He started practicing in February 2018. He started because he felt lonely living alone and found consolation in the things Falun Gong promotes. These things are truthfulness, kindness and beauty. He needs Falun Gong for these things because they hand out fliers to teach how to apply the principles in life. The things are truthfulness, kindness and fairness. They teach this by bringing the mind to a higher level. It makes him feel less lonely. He feels his life is filled with joy and shares thoughts with them. They are like family to him. He is less lonely in a spiritual way.
u.The Tribunal asked the applicant if Falun Gong had other teachings. He responded truthfulness, kindness and perseverance. He has limited education therefore there are many things he doesn’t quite understand however he feels at ease and has peace of mind.
v.He practices Falun Gong by meditating. He does this by remaining seated with his legs folded and fingers crossed. He can only do simple practices. This is the only one he can do.
w.The Tribunal asked the applicant why he could not do this practice in China. He responded that China does not allow this. The Tribunal put to him he would be able to meditate in his home on China. He responded he started in February 2018 but not in China. He gained further knowledge in Australia. He wants to practice and promote Falun Gong but in China he will face arrest.
x.He has other limited activities with Falun Gong in Australia. He studies the Fa and reads books. His family want to practice Falun Gong but cannot. He thinks Falun Gong is wonderful and wants his family.to practice but it is not allowed in China. There is so much more he wants to learn but if he returns to China he cannot learn.
Country Information
DFAT’s most recent ‘Country Information Report China’, published on 3 October 2019, contains the following:
Falun Gong (also known as Falun Dafa) is a spiritual movement that blends aspects of Daoism,
Buddhism, and Qigong (traditional breathing and meditation). Freedom House estimates seven to 20 million people currently practice Falun Gong in China. Falun Gong practitioners claim the movement has ancient origins, but it first appeared in its modern form in 1992, when founder Li Hongzhi began teaching the exercises in Changchun, Jilin province. Unlike other religions, Falun Gong focuses on private exercises and meditation.
The government declared Falun Gong illegal and ‘an evil cult’ after a large protest by followers at the CCP headquarters in Beijing in 1999. The CCP maintains a Leading Small Group for Preventing and Dealing with the Problem of Heretical Cults to eliminate the Falun Gong movement and to address ‘evil cults’. An extrajudicial security apparatus known as the 6-10 Office (named after 10 June 1999 crackdown against Falun Gong) has the task of eradicating Falun Gong activities. The 6-10 office has reportedly created specialised facilities known as ‘transformation through re-education centres’ to force practitioners to relinquish their faith.
Falun Gong reportedly remains active throughout China, but most prominently in Shandong and northeastern China, although Falun Gong’s illegal status makes this difficult to verify.
Since the abolition of re-education through labour centres in late 2013, Falun Gong practitioners have reportedly been subjected to residential detention, criminal and other forms of administrative punishment, or have been released after receiving propaganda training. Freedom House states it independently verified 933 cases between 1 January 2013 and 1 June 2016 of Falun Gong adherents receiving prison sentences of up to 12 years for their beliefs.
Falun Gong members do not openly proselytise in mainland China, although the movement is active in Hong Kong (where it remains legal) and abroad. Falun Gong practitioners identify potential new members and slowly introduce them to the practices and beliefs of Falun Gong. Falun Gong practitioners are generally able to practise privately in their homes. Once known to authorities, colleagues or neighbours, however, Falun Gong members face widespread official and societal discrimination.
Lawyers representing Falun Gong practitioners claim a typical Falun Gong case involves: a period of initial investigation; the suspect having their personal belongings confiscated and being placed in custody for three to six months; trial by court; and then sentencing. Arrested Falun Gong practitioners (leaders and followers alike) commonly receive sentences of three to seven years’ imprisonment. Correctional officers will pressure Falun Gong practitioners to denounce their faith, and detainees may receive better treatment if they sign confessional statements. Falun Gong practitioners and their lawyers claim that judges and lawyers are
actively discouraged from taking on Falun Gong cases, and that Falun Gong practitioners have suffered psychiatric experimentation and organ harvesting. DFAT is not able to verify these claims.
On release from detention, Falun Gong members can be placed under surveillance and can experience difficulties finding employment beyond low-skilled jobs. Discrimination against Falun Gong practitioners can extend to family members and can result in the loss of employment, pensions or social relationships.
Government officials, members of the police force and employees of state-owned enterprises are commonly required to sign a statement that they and their families are not Falun Gong members. A widespread and sustained government communications campaign against Falun Gong has effectively discredited it within mainstream Chinese society.
Unlike other officially designated cults, the government regards Falun Gong practitioners as political opponents rather than victims, and treats them accordingly. Lawyers who defend Falun Gong practitioners are frequently denied access to their clients in detention or court, and are subjected to adverse treatment and physical and electronic surveillance by authorities.
Falun Gong practitioners known to the authorities would likely find it difficult to obtain a passport.
Sources report some migration agents, particularly in transit countries, may have coached would-be asylum seekers on Falun Gong practices to facilitate their claims.
DFAT assesses that Falun Gong practitioners, and their lawyers, are at high risk of official
discrimination. Due to the government’s sustained public campaign against them, Falun Gong practitioners, if exposed, face a moderate risk of societal discrimination.

A Falun Gong website, falundafa.org, contains the following information:
Falun Dafa, also known as Falun Gong,is a spiritual practice that millions around the world have made a part of their lives. Rooted in Buddhist tradition, it consists of two main components: self-improvement through the study of teachings, and gentle exercises and meditation.
The belief system of Falun Dafa offers the possibility of spiritual growth through disciplined practice. Its teachings encourage learners to let go of unhealthy attachments as they strive to attune their lives to the underlying qualities of the universe: Truth, Compassion, and Forbearance.
The Falun Dafa Infocentre[1] website describes Falun Gong similarly:
Falun Gong is an ancient Chinese spiritual discipline in the Buddhist tradition. Pronounced “Fah-loon Gong,” it consists of moral teachings, a meditation, and four gentle exercises that are a truly unique and highly effective way to improve your health and energy levels. At the core of Falun Gong are the values of Truthfulness, Compassion, and Tolerance (or in Chinese, Zhen, Shan, and Ren). Falun Dafa teaches that these are the most fundamental qualities of the universe, and takes them to be a guide for daily life and practice. In the words of Falun Gong’s founder, Mr. Li Hongzhi, “assimilation to the highest qualities of the universe - Truthfulness, Compassion, Tolerance - is the foundation of practice. Practice is guided by these supreme qualities, and based on the very laws which underlie the development of the cosmos.”
[1]
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant claims to fear harm in China because he owes and is owed money relating to his former business operations, and because he believes in and is practicing Falun Gong.
The applicant submitted his Chinese passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied he is a citizen of China. The Tribunal assesses the applicant’s claims against China as his country of nationality and receiving country.
Credibility
When assessing claims the Tribunal must make findings of fact in relation to the claims made, in order to assess whether there is a real chance of serious harm or a real risk of significant harm.
The courts have suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims. A similar approach is taken in the Department's Refugee Law Guidelines and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection ('UNHCR Handbook'), which provides useful guidance.
However it is well established that the Tribunal is not required to accept uncritically claims made by an applicant. The Tribunal is also not required to seek out evidence to support an applicant's claim (ABT16 v Minister for Home Affairs [2019] FCA 836).
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. It is for the applicant to satisfy the Tribunal that all of the statutory elements are made out (Abebe v Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at [187] ).
Business Loans
The applicant’s evidence regarding his primary fear of harm arising out of loan repayments was highly inconsistent and contradictory. The account he gave at his Tribunal hearing was very different from the initial information he included in his Protection visa application. When asked why this was the applicant attributed the problem to a misunderstanding by his Migration Agent whose name he could not remember and whose actual assistance he could not remember.
In his Protection visa application the applicant wrote of borrowing 160,000 yuan from a mutual aid fund in 2015 for unspecified reasons; being unable to repay the loan; his debt rising to 200,000 yuan; being threatened and physically assaulted by a creditor [Mr A]; and fearing his creditor or creditors will kill him upon return.
However at his tribunal hearing the applicant gave a completely different story of borrowing money from a person [Mr B] for a [business] he started with two business partners in mid 2017; owing [Mr B] over 300,000 yuan; and not being able to repay [Mr B] because his business partners would not repay moneys owed to him. He gave confused evidence regarding who or what he feared as a result of these transactions.
Initially at hearing the applicant showed reluctance to articulate his claims, referring to them merely as the ‘business reason’ or ‘financial reason’, and requiring the Tribunal to press several times for some specificity. The account he eventually provided was often confused, vague and contradictory. He spoke of starting the business with two people with an organised crime background and connection, yet the business failing because he lacked the backing from organised crime. He also spoke of the business making a loss and closing just two months after he started it because it was failing. However when questioned further about why he gave up after such a short operational period and did not try further he revealed the business was continuing to operate with his two partners.
As the Tribunal tried to further explore the applicant’s reasons for abandoning the business he changed his evidence to state he was forced out of the business by his business partners and claimed that they were the ones who would harm him on return because they did not want to repay him. When asked about the debts and moneys owed the applicant gave general answers they were ‘business related’ without providing any real detail.
In view of the Tribunal’s substantial concerns about the poor quality of the applicant’s evidence, it does not accept that the applicant owes a large sum of money to anyone, including [Mr A] and [Mr B], in China or that he borrowed a large sum of money in 2015 or in 2017. The Tribunal does not accept that he has been assaulted or threatened by anyone in relation to the claimed loans. The Tribunal does not accept the applicant started a business with two criminals who have refused to repay money to him and may assault him for this reason.
Falun Gong
At his Tribunal hearing the applicant raised an additional claim that he feared he would be imprisoned by the Chinese government. It was initially difficult to understand from the applicant why he claimed this would happen to him as he did not offer more than vague general phrases in response to questions for details of the claim, for example by making a reference to being placed in custody “because the overall environment and circumstances have changed”. Further questioning by the Tribunal elicited the responses “there are many things that are hard to explain”, “it is hard in China to voice concerns” and finally that his “opinion differs from that of the government in terms of public policy”. He eventually provided an example of this as “in terms of Falun Gong” stating that was the extent of the detail he could explain.
Near the end of the hearing and following a ten minute adjournment the applicant was able to provide a little more detail and state specifically that he believed in and practiced Falun Gong. When asked why he had not mentioned this previously he responded that he had forgotten to mention it because his financial concerns were primary to him. The Tribunal does not consider it plausible or reasonable that a person fearing imprisonment in China for a particular reason would forget to mention such a thing in an application for a Protection visa, or at any time prior to late in the Tribunal hearing.
The applicant initially appeared to attribute the lack of detail he provided in relation to Falun Gong to a concern that if he spoke of Falun Gong his family in China may suffer. However when the Tribunal was able to assure the applicant of the confidential nature of the proceedings his attempts to provide relevant details remained vague and generalised. He was not able to convey a genuine knowledge of and belief in Falun Gong. He could not describe Falun Gong or its beliefs beyond a three word phrase that he could not consistently state. As shown by the country information the phrase he used does not precisely correspond with the one adopted by Falun Gong. While this of itself is not a decisive adverse point, given it was the one set of principles the applicant claimed to know after adopting Falun Gong in Australia in early 2018, his inability to correctly articulate it does not support his claim to believe in, practice and study Falun Gong. In describing his practice of Falun Gong the applicant spoke of meditating, eventually clarifying he could meditate in a sitting position, and this was all he could do. Available literature on Falun Gong shows that there are several specific exercises and ways of applying oneself, that are part of Falun Gong practice. That the applicant admitted his inability to do or know of these substantially contradicts his claim to believe in and practice Falun Gong.
In the Tribunal’s view the applicant was unable to establish that he supports Falun Gong, or that he practices Falun Gong, or that he studies Falun Gong, or that he wants to learn more about Falun Gong, or that he wants his family to practice Falun Gong.
On the basis of the above reasoning the Tribunal does not accept the applicant supports or practices Falun Gong or that he wants to learn more about Falun Gong or that he wants his family to practice Falun Gong.
Family’s unemployment in China.
The applicant claimed that his wife is unemployed in China and his family receive welfare payments from the government. There is no indication before the Tribunal that this is not the case, and the Tribunal gives the applicant the benefit of the doubt that it is.
Fear of Harm in China
The Tribunal has not accepted that the applicant has been threatened with violence because of unpaid loans in China. The Tribunal has also not accepted that the applicant supports or practices Falun Gong in Australia.
The Tribunal has accepted that the applicant’s wife is unemployed and the family supported by government welfare payments in China. The applicant did not claim to fear harm as a result of this but for completeness the Tribunal is assessing the risk it poses to the applicant.
If the applicant returns to China the Tribunal accepts he may have financial difficulties as a result of his family’s poverty and because he would not initially have employment in China. The Tribunal also notes his evidence that he borrowed money from a close friend to pay for his travel to Australia and this may continue to be an outstanding debt. The applicant has not given any indication he fears harm from his close friend or has any problems arising out of this loan. However the Tribunal accepts the possibility that the loan would contribute to the applicant’s adverse financial circumstances in China.
There is no indication before the Tribunal, apart from the applicant’s general claim of high unemployment in China, that he would be unable to find employment there. He gave evidence of working in [industry] in China up until his departure to Australia. He is working in [industry], in Australia. On the basis of this evidence the Tribunal considers the applicant will be able to use his skills and experience to find employment in China.
The initial, or even subsequent, financial difficulties the applicant may encounter in China are also not attributable to a reason set out in s5J of the Act. That is, they would not be for reason of the applicant’s race, nationality, religion, membership of a particular social group, or political opinion. Further, his financial circumstances and potential difficulties do not amount to any of the categories of significant harm defined in the Act.
The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution in China arising out of his or his family’s financial situation there. Nor is the Tribunal satisfied there is a real risk the applicant will suffer significant harm due to his or his family’s financial situation in China.
CONCLUSIONS
The applicant has not raised any other claims to fear serious or significant harm in China and none arise on the information before the Tribunal.
On the information before it and for the reasons given above the Tribunal is not satisfied the applicant has a well-founded fear of persecution in China as defined by s.5J of the Act. Similarly, the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm on return to China.
The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act..
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Melissa McAdam
Member

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

[2021] AATA 4635

12 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction