1909020 (Refugee)

[2024] AATA 2581

1909020 (Refugee) [2024] AATA 2581 (9 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1909020

COUNTRY OF REFERENCE:                   China

MEMBER:Tania Flood

DATE:9 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 09 April 2024 at 12:59pm

CATCHWORDS
REFUGEE – protection visa – China – fear of harm from creditor – borrowed for father’s medical expenses – insulted, assaulted and threatened – limited claims and evidence – consent to decision without hearing – decision under review affirmed

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

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. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 25 January 2018. The visa was refused on the basis that the delegate was not satisfied there is a real chance or a real risk the applicant will suffer serious or significant harm if he returns to China.  The delegate found the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act.

3. The applicant lodged an application for review on 12 April 2019.  On 13 February 2024 the Tribunal wrote to him requesting that he complete and return a pre-hearing information form within 7 days of receipt of the email.  The applicant did not respond to the Tribunal’s request.

4. On 26 March 2024 the Tribunal wrote to the applicant advising him that it has considered the material before it but is unable to make a favourable decision on this information alone.  The applicant was invited to appear before the Tribunal on 17 April 2024 to give evidence and present arguments. 

5. On 2 April 2024 the applicant returned a signed and dated response to hearing invitation form indicating that he will not participate in the hearing and consenting to the Tribunal making a decision on the papers without taking further steps to allow him to appear.   However, in another section of the form the applicant indicated he would need an interpreter for the hearing.  On 3 April 2024 the Tribunal attempted to contact the applicant by phone to confirm that he does not wish to attend a hearing.  The call was answered but nobody responded and the call was terminated.  On the same day the Tribunal emailed the applicant to clarify if he would be attending the hearing scheduled for 17 April 2024 or if he is declining the invitation and requesting a decision on the papers.  The applicant did not respond to this correspondence.  On 5 April 2024 the Tribunal again attempted to contact the applicant by telephone and on that occasion it was informed that the number is a wrong number for the applicant.

6. In the absence of any further advice from the applicant the Tribunal has proceeded to decide the matter on the information before it. 

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act.  

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

    Summary of claims and evidence

15. In the application for a Protection visa the applicant declared that he is a citizen of China, that he is divorced and resided in Xian in Shaanxi Province.  He indicated that his parents and his daughter reside in China.  The applicant declared that he is Han Chinese and he listed his religion as “Other – religion not listed”.  The applicant departed China on [Day 1] October 2017 from Guangzhou and arrived in Australia on [Day 2] October 2017 holding a Visitor visa.  He indicated on the application form that he applied and was granted permission to enter [Country 1] in 2011 and [Country 2] in 2012 for work purposes.  He indicated that from [July] 2011 to [November] 2011 he worked in [Country 1] and from [January] 2013 to [January] 2017 he worked in [Country 2].

16. The applicant claimed that in 2015 his father was seriously ill and spent a year in hospital intermittently.  He claims he spent all his savings and owed a usury loan of 160,000 yuan from [Mr A].  He claims his father is now in good health but he has never repaid the usury loan.  He claims that creditors often came to his place of work and his home to ask for the money which he did not have.  He claims he was beaten, scolded and threatened he would be killed if he did not repay the money.  He claims he went to the public security order to report this mistreatment but because he was not harmed they said they could not help him.  He claims he cannot move to another place to live as he does not have any money.   If he returns to China the creditors will find him, insult him, harm or kill him.  He claims the government assisted them with a subsidy of 20,000 yuan but they cannot help him to pay off all the debts. 

17. The applicant attached a copy of his passport to the application but provided no further information in support of his claims to the Department.

    FINDINGS AND REASONS

    Country of nationality

18. The applicant provided a copy of his People’s Republic of China passport to the Department which verifies his claimed identity and nationality.  Based on this information, and in the absence of any information to the contrary the Tribunal finds the applicant is a Chinese national.

19. The applicant’s claims are outlined above and indicate he fears harm from a creditor in China due to having an outstanding loan.  He claims that when he was unable to repay the loan he was visited at his workplace and home and insulted, physically assaulted and threatened to be killed by the creditor.  He claims that he reported the matter to the authorities but they were unable to help him.  He claims the government cannot assist him to repay all his debts. 

20. The applicant did not undergo an interview with the Department and he did not provide any additional information to the Department.  On 4 January 2023 the applicant emailed the Tribunal a copy of a new passport but apart from this he has not provided the Tribunal with any further information in support of his claims.  The only information before the Tribunal are the very brief assertions made by the applicant in his application for a Protection visa.

21. The Tribunal considers there is insufficient information before it to find that if the applicant returns to China he would suffer serious or significant harm from [Mr A] or his associates due to an outstanding debt.  Had the applicant been willing to attend a hearing the Tribunal could have sought more detail from him regarding the events he claimed occurred in China and the reasons why he fears returning to China.

22. On the very limited information before it and as the applicant declined to attend a hearing or be interviewed on his claims, the Tribunal is not prepared to accept his claims.  There is no verifiable evidence before the Tribunal to support that the applicant’s father was hospitalised intermittently for a year or that the applicant is indebted to [Mr A] for any sum of money.  The Tribunal is not satisfied on the available information that the applicant took out the claimed loan for the purpose of covering his father’s medical expenses or for any other reason.  The Tribunal is also not satisfied that the applicant was insulted, assaulted or threatened because he was unable to repay a loan.  Nor is the Tribunal satisfied that the applicant sought assistance from the Chinese authorities against the harm he experienced or that he was sent away unaided.  It follows that the Tribunal does not accept the applicant will suffer serious or significant harm from [Mr A] or his associates if he returns to China because he will be unable to repay a loan which is outstanding to him. 

23. The Tribunal does not accept on the available information that there is a real chance the applicant will suffer serious harm if he returns to China now or in the reasonably foreseeable future for the reasons claimed.  Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

24. The Tribunal has also considered the applicant’s claims against the complementary protection criteria. For the same reasons already articulated above the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to China from Australia there is a real risk he will suffer significant harm for the reasons claimed or for any other reason. Therefore the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 26(2)(aa) of the Act.

25. 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

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

    Tania Flood
    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.

    …