1910232 (Refugee)

1910232 (Refugee) [2021] AATA 5385 (6 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1910232
COUNTRY OF REFERENCE:                   China
MEMBER:Peter Vlahos
DATE:6 December 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

This Statement was made on 6 December 2021 at 9.30AM
CATCHWORDS
REFUGEE – Protection visa – China – family business – borrowed money from lender associated with criminal syndicate – difficulties repaying loan – harassment by criminal syndicate – credibility – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
CASES
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
Kopalapillai v MIMMA (1998) 86 FCR 547
MIMA v Rajalingam (1993) 93 FCR 220.
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Another (1994) 34 ALD 347
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 11 April 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of China, applied for the visas on 5 January 2018. The delegate refused to grant the visas on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.
On 24 April 2019 the applicants made an application to the Tribunal to review the delegate’s decision to refuse their application for Protection visa.
On 25 November 2021 a Tribunal hearing was held to review the delegate’s decision via the means of teleconference due to the state of emergency still in force in the State of Victoria due to the Covid-19 Pandemic.
The applicants did not provide any prepared written statements or written evidence prior to the hearing and no witnesses were called to provide evidence in the applicants’ case or any witness (written) statements submitted.
The applicants were not represented at the Tribunal by a registered migration agent or legal professional acting as their representative in these proceedings.
The applicants were assisted at the hearing by an interpreter in the Mandarin Chinese dialect and English languages.
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 (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 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of the applicants, [Applicant 1], and [Applicant 2]. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of origins and the applicants’ personal identity
Based on copies of the applicants’ passports, which were provided to the Department of Home Affairs (the ‘Department’) and to the Tribunal and in the absence of any evidence to the contrary, the Tribunal accepts that the applicants are nationals of the Peoples’ Republic of China and have had their claims assessed against that country in relation to claims made pursuant to sections 36(2)(a) and 36(2)(aa) of the Act and on the basis of this evidence (currently before the Tribunal), the Tribunal accepts and finds the applicants’ identities are as they claimed proved for the purposes of this decision.
Department of Home Affairs File
The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard and considered the material referred to in the delegate’s decision record. The applicants provide a ‘copy’ of the departmental decision record to the Tribunal with their application for review of decision made by the Minister’s delegate.
Background – the applicants’ migration and visa history
Both applicants arrived in Australia [in] October 2017 on a Visitor Visa and on 5 October 2018 they submitted to the Department a joint application for Protection visa which was dismissed (and now the subject of review) but were granted that visa’s associated Bridging visa.
EVIDENCE AT THE HEARING
Applicants’ personal background
The applicants, [Applicant 1] was originates from the Xian city, Shaanxi Province, PRC (China). He is married to [Applicant 2], who originates from Nanning city, Guangxi Province, PRC. Their marriage occurred according to the information provided in their common application form for Protection on 1 April 2017 and their union has produced a child – a female ([Child 1]) who was born on [date] and is currently in the care of the applicants’ parents in China and has not been included in the applicants’ Protection visa. Both applicants have had a varied education in China and prior to leaving China for Australia, the husband [owned] and operated between the years 2013 to 2017 [a store] which is no longer in operation. The Tribunal noted from the applicants’ application that both described themselves as “Han Chinese” and identified “no religion”.
The Applicants claims for Protection
The applicants provided the Department with the following claims:[1]
§Their family had [a] business and borrowed money from a local money lender associated with a criminal syndicate at a very high interest rate.
§The business failed and they were unable to repay the loan.
§The applicants claim they were then continually harassed and threatened by the money lender and its criminal syndicate.
§The applicants reported the money lender and criminal syndicate’s actions to the Public Security Bureau in China; however, no action was taken by the police and the court also refused to register this dispute.
§When the criminal syndicate discovered that the applicants had reported them to the police, they started to insult them at their home every day.
§The applicants claim they had no choice but to escape to Australia.
§The applicants claim if they return to China they will be captured and physically assaulted by the local money lender. They also claim they will die.
§The applicants claim that corruption in China is extremely widespread and if they return to China the local money lender, criminal syndicate and the police will continue to persecute them. They claim they will not receive protection from the authorities and as the criminal gangs and underground bankers are so powerful, they will be captured wherever they go.
[1] see, the Application for Protection, Department of Home Affairs, File no. [deleted]
The applicant [told] the Tribunal that while in China, he operated a family business which was a small shop which sold to the public – [products].
According to the applicant [the] business operated from 2013 to 2017 – a total of four years. It was a good business and provided the applicants and their family with their livelihood but began to faulter and this caused financial difficulties.
The applicant [told] the Tribunal because the business faced financial difficulties, he decided to borrow money on the private financial market in order to save the business from financial collapse. The applicant decided to borrow from a private local lender because he could not borrow money from an official lender – being a local bank.
The applicant told the Tribunal that no local bank would lend him money.
The applicant engaged with a private lender and decided to borrow approximately CYNA[amount] (AUD[amount] (1CYN=0.2193$AUD).
The applicant told the Tribunal that there are many private operating money lenders in the local market, and he found this money lender locally.
The applicant said that the money lender provided no ‘formal written loan agreement’ but only a ‘handwritten note’.
The problem became difficult for the applicant and his business, when the loan borrowed suddenly began increasing the interest charged to figures which were difficult for the applicant to service principal and interest payments.
The applicant told the Tribunal that he and his wife ‘provided no security for the money’ which was borrowed. The applicant described the loaned money as a being a ‘small loan’ which ‘did not require any security.’
The applicant [was] asked – what occurred when he could no long meeting his obligations as he had agreed to with the money lender? The applicant [said] that the money lender’s associates ‘started to harm him.’
The applicant described the ‘harm’ as intimidation of his business’ customers and not allowing the business to operate.
The applicant [was] asked to tell the Tribunal – how much money he thought he owed the money lender? The applicant said that he ‘cannot come up with a specific figure’. The applicant went on to describe what had happened to him as the ‘Mafia was forcing him to pay interest.’
The applicant was asked by the Tribunal – how much interest had he paid so far? The applicant told the Tribunal that he could not tell the Tribunal ‘any figure.’
The applicant then admitted to the Tribunal that while being in Australia he had sent close to AUD[amount] to the money lender. The applicant went on to explain to the Tribunal that the money paid to money lender was sent through a bank to his sister’s bank account in China and then his sister would make the payment to the money lender.
The applicant [was] requested by the Tribunal to provide to the Tribunal all payment statements of any money sent to China to repay the loan in question. The Tribunal requested these documents to be clear and properly certified and translated. The applicant was provided a period of seven days to provide this evidence to the Tribunal via the Registry’s Email.
The applicant then told the Tribunal that ‘such statements for small amounts’ are ‘difficult to provide’. The Tribunal reiterated to the applicant that he had told the Tribunal that he had sent money to China while being in Australia to repay the loan, he claimed to have outstanding with the money lender – then such statements for whatever amount paid – are available and should be provided to the Tribunal as evidence.
The applicant said that these statements had been provided to his “migration lawyer” but the applicant did not identify who his “migration lawyer” was. No name was provided.
The applicant was asked if the money lender was known to him by name? The applicant said that the money lender was known as ‘[name]’ (applicant’s pronouncement of the name through an interpreter).
The applicant since arriving in Australia, confirmed that he had sent money to his sister in China who then transferred the amounts deposited in her name to the money lender’s account.
The applicant said that he had not made any further payments since 2019. The interest accrued was too much.
The applicant said that though he and his family were ‘harassed’ by the money lender he ‘did not dare report his problem to the police.’
The applicant feared that if he reported the matter to the police, his family would face ‘violence’ and have his ‘family disturbed’.
The applicant admitted to the Tribunal that he had been harassed by the money lender when he was in China. The applicant went on to described this ‘harassment’ as the money lender ‘coming into his shop every day and would block the shop’s entrance, not allowing the shop’s customers to enter.’
The applicant then told the Tribunal that he reported this incident to the police ‘but nothing happened’ because the harassers ‘disappeared.’
The applicant told the Tribunal that the police in China are ‘not useful’ on these matters.
The applicant was asked to tell the Tribunal – why he cannot return to the PRC? The applicant said he cannot pay anything and fears for his life. The applicant fears that wherever he is, the money lender will be able to find him. He went on to tell the Tribunal that it was not easy to go to another part of China as it is so, in Australia, because in China one has to register his or her whereabouts and get the approval of the authorities to move to a different city and this cannot be done by him with ease.
The applicant said that he was able to leave the PRC with his sister’s help (who arranged everything).
Currently, the applicant told the Tribunal that he is working [and] earns approximately AUD[amount] per week.
EVIDENCE PROVIDED BY THE APPLICANT’S WIFE
The Applicant no.2, the [Applicant]’s wife told the Tribunal that she was unable to add anything further to what her husband had said to the Tribunal. After all, according to applicant (no.2) the entire business loan was her husband’s concern.
The applicant’s wife told the Tribunal she could not remember much from the time the loan was negotiated by her husband except to say, that at the time she was pregnant with child and was not involved in the running of business.
However, the applicant’s wife told the Tribunal that her husband was having problems repaying the loan and interest.
The applicant’s wife provided no further oral evidence.
Request by the Tribunal for additional information concerning the applicant’s loan with the money lender
The Tribunal noted that the applicant was required to provide (1) all payments he claimed had been made through the good offices of his sister to the money lender; and (2) further identifying information concerning the whereabouts and details of the money lender and that all documents be provided as “certified” and with a ‘recognised translation” in the English language. The applicant agreed to provide this additional evidence within seven days (after) the hearing of this review by the Tribunal.
COUNTRY INFORMATION – PRC (CHINA) – UNDDERGOUND BANKS, ILLEGAL MONEY LENDERS & MONEY LENDER SYNDICATES AND THE RULE OF LAW
In assessing the applicants’ claims concerning their ‘fear’ of ‘harm’ if they were to return to China, the Tribunal has considered the following country information.
Underground Banks and Illegal Money Lenders
Due to China lacking a uniform credit system, largely unregulated ‘underground banks’, ‘shadow banks’ or ‘shadow lenders’, make up a large portion of the country’s credit market.[2] Shadow lenders can be online ‘micro-lenders’ providing small consumer loans, loan sharks, as well as large schemes, which involve billions of dollars in funds.[3] Such schemes charge high interest rates, from 10 to 15 per cent per month, up to as much as 1000 per cent in a year.[4] Shadow lenders reportedly often have links to organised crime gangs, and use a range of tactics to enforce payment, such as intimidation, blackmail, violence and kidnapping.[5]
[2] ‘China ‘granny gang’ jailed in lending clampdown’, Financial Times, The (FT.com) - United Kingdom, 11 August 2017, CXC90406617230; ‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 34, October 2014, CISEC96CF17389
[3] ‘Crackdown looms for China’s online loan sharks’, Asia Times, 14 November 2017, CXC90406617642; ’16 jailed in Shanghai for abusive loan schemes’, China Daily, 30 August 2017, CXC90406617652; ‘Loan Shark Linked to Debtor’s Death Gets 25 Years’, Caixin Media, 11 May 2018, CXBB8A1DA29051
[4]‘Crackdown looms for China’s online loan sharks’, Asia Times, 14 November 2017, CXC90406617642; ‘China ‘granny gang’ jailed in lending clampdown’, Financial Times, The (FT.com) - United Kingdom, 11 August 2017, CXC90406617230
[5] ‘China ‘granny gang’ jailed in lending clampdown’, Financial Times, The (FT.com) - United Kingdom, 11 August 2017, CXC90406617230; ‘16 jailed in Shanghai for abusive loan schemes’, China Daily, 30 August 2017, CXC90406617652; ‘China murder case shines spotlight on loan sharks’, Financial Times, The (FT.com) – United Kingdom, 30 March 2017, CXC90406624781
Country information indicates that clients of shadow lenders typically come from poor backgrounds, have limited access to formal credit, have been blacklisted by the formal banking system, or are otherwise considered to have a credit risk.[6] These lenders often provide loans to borrowers without traditional credit checks.
[6] ‘Crackdown looms for China’s online loan sharks’, Asia Times, 14 November 2017, CXC90406617642; ‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 34, p. 8, 01 October 2014, CISEC96CF17389; ‘China jails more than 1,400 in lending crackdown’, Deutsche Welle, 26 April 2013, CX320051; ‘A Chinese Company That Lends To Borrowers With No Credit Scores’, Forbes.com, 22 March 2017, CXC90406624782; ‘China's loan sharks circle in murky shadow bank waters’, Reuters, 31 January 2014, CX318682
Country information also indicates that the underground shadow banking system operates in a grey area of the economy. In some circumstances shadow banking operates in a quasi-legal manner, while in other circumstances shadow banking operations are illegal. Shadow banking is largely unregulated in China.[7] While the shadow banking system has operated in the past with the implicit approval of the Chinese authorities,[8] a government crackdown on shadow banking in China has taken place under President Xi Jinping who became president in 2012.[9] Numerous recent reports were located of Chinese authorities cracking down on the operations of both large and small shadow banks and lenders, with the police arresting several thousand people in numerous cases involving funds totalling hundreds of billions of dollars.[10] Information was located stating that despite the unregulated nature of the industry; up to a quarter of civil cases in Chinese courts involve shadow lenders, often with the lender pursuing debtors in default of loans.[11]
[7] ‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 1 October 2014, pp. 1-4, CISEC96CF17389; ‘China mounts massive crackdown on sprawling underground bank network’, South China Morning Post, 17 August 2016, CX6A26A6E8287; ‘China jails more than 1,400 in lending crackdown’, Deutsche Welle, 26 April 2013, CX320051; ‘Crackdown looms for China’s online loan sharks’, Asia Times, 14 November 2017, CXC90406617642
[8] ‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 34, October 2014, pp. 1-4, CISEC96CF17389,
[9] '$527 Million Seized, 16,200 Arrested in Loan Shark Crackdown', Ren Qiuyu, Caixin Media, 26 February 2019, 20190227090729; ‘Xi Jinping’s war on shadow banking spills over, rocking China’s wider financial world’, South China Morning Post, 10 February 2018, CXBB8A1DA36449; ‘With Jail Sentences and Corporate Flameouts, China Is Tackling Its Debt’, New York Times, The, 10 May 2018, CXBB8A1DA36450
[10] ‘Chinese police probe 20-billion-yuan underground bank trade’, Xinhua (net) also News.cn also China View, 23 November 2017, CXC90406618159; ‘China busts underground bank in Guangzhou: China Daily’, Reuters, 26 September 2017, CXC90406619864; ‘Repatriation and recovery targeted to combat graft’, China Daily, 06 May 2016, CX6A26A6E16755; ‘China mounts massive crackdown on sprawling underground bank network’, South China Morning Post, 17 August 2016, CX6A26A6E8287
[11] ‘Shadow Banking Cases Threaten to Overwhelm China's Courts’, The Diplomat, 05 June 2015, CISEC96CF110356

A 2014 paper on shadow banking in China states that shadow banks are unregulated and ‘are not licensed to raise deposits or make loans.’[12] The report highlighted however that these shadow banks are often deeply interconnected with the formal banking sector in China and operated (at least at that time) ‘with implicit government guarantees.’[13]
[12] ‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 1 October 2014, pp. 1-4, CISEC96CF17389
[13] ‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 1 October 2014, pp. 1-4, CISEC96CF17389
Despite this, more recent country information indicates that the Chinese authorities have arrested and detained significant numbers of people involved in the shadow banking industry.[14] In May 2018, a loan shark and fourteen associates were pursued by Chinese authorities and sentenced to two to 25 years imprisonment for ‘loan sharking’ and other gang-related activities.[15] Other instances of authorities taking action against illegal money lenders and debtors include authorities arresting more than 800 suspects for involvement in underground banks and loan sharks involved in extortion in 2017.[16]
[14] '$527 Million Seized, 16,200 Arrested in Loan Shark Crackdown', Ren Qiuyu, Caixin Media, 26 February 2019, 20190227090729; ‘Chinese police probe 20-billion-yuan underground bank trade’, Xinhua (net) also News.cn also China View, 23 November 2017, CXC90406618159; ‘China busts underground bank in Guangzhou: China Daily’, Reuters, 26 September 2017, CXC90406619864; ‘Repatriation and recovery targeted to combat graft’, China Daily, 06 May 2016, CX6A26A6E16755; ‘China mounts massive crackdown on sprawling underground bank network’, South China Morning Post, 17 August 2016, CX6A26A6E8287
[15] ‘Loan Shark Linked to Debtor’s Death Gets 25 Years’, Caixin Media, 11 May 2018, CXBB8A1DA29051
[16] ‘China busts underground bank in Guangzhou: China Daily’, Reuters, 26 September 2017, CXC90406619864; ’16 jailed in Shanghai for abusive loan schemes’, China Daily, 30 August 2017, CXC90406617652
Chinese law contains various provisions that explicitly prohibit threatening or harming informants in criminal cases, as well as providing protections for whistle-blowers in corruption cases.[17] In addition, Chinese authorities have introduced various initiatives to encourage whistle-blowing of official and corporate corruption.[18] In practice, however, many witnesses in criminal trials are reluctant to testify for fear of harm from the defendants, particularly in cases involving organised crime or official corruption, or, in the case of defence witnesses, fear of harm from the police or other government officials.[19]
[17] ‘Supreme People's Procuratorate Judicial Interpretation of the Criminal Procedural Law’, U.S. Asia Law Institute (USALI) at the New York University School of Law, 01 January 2013, pp. 36 – 49, CIS28141; ‘White Paper on China's Efforts to Combat Corruption and Build a Clean Government’, Information Office of the State Council of the People's Republic of China, 01 December 2010, pp. 12-13, CIS27417; ‘New Rules Offer Greater Protection and Incentives to Whistleblowers in China’, Global Compliance News, 04 May 2016, CX6A26A6E31159
[18]‘China rewards graft whistleblowers, gives informants protection’, Global Times, 07 August 2018, CXBB8A1DA36466; ‘New Rules Offer Greater Protection and Incentives to Whistleblowers in China’, Global Compliance News, 04 May 2016, CX6A26A6E31159
[19] ‘CHN104967.E China: Structure of the public security police; whether witness protection programs exist for those fearing organized crime groups (2014)’, Canadian IRB: Immigration and Refugee Board of Canada, 10 October 2014, p. 5, OG61C530242; ‘Zhejiang Court Issues First Written Witness Protection Order’, Sixth Tone, 17 June 2017, CXBB8A1DA36465
In regards to the police force’s ability to provide protection, the police undertake four-year training programs that include courses in procedural law and public order, as well as extensive physical training.[20] Performance is statistics-driven and a national ranking system provides incentives for compliance.[21] DFAT advises however that, ‘Maintaining public order and social stability – defined as defending CCP rule – are the key priorities of the police force in China, and outweigh protection of the public from criminal activity.’[22] According to DFAT a lack of separation of powers creates structural vulnerabilities within the judicial system. Judicial autonomy is limited in cases that authorities consider politically sensitive or have vested economic or political interests.[23]
[20] 'DFAT Country Information Report China October 2019', Department of Foreign Affairs and Trade, 03 October 2019, 20191003160550, page 66, para 5.6
[21] 'DFAT Country Information Report China October 2019', Department of Foreign Affairs and Trade, 03 October 2019, 20191003160550, page 66, para 5.6
[22] 'DFAT Country Information Report China October 2019', Department of Foreign Affairs and Trade, 03 October 2019, 20191003160550, page 66, para 5.7
[23] DFAT Country Information Report China October 2019', Department of Foreign Affairs and Trade, 03 October 2019, 20191003160550, page 68, para 5.18
Some country information states that the effectiveness of policing in China is compromised because police are mandated with solving a high rate of their cases and that police in some counties are unable to pursue criminals outside of their jurisdictions due to a lack of resources or authority.[24]
[24] Getting away with murder lies, damned lies, and Chinese police statistics, Lowy Institute: the interpreter, 23 January 2018, CXBB8A1DA25532
The UK Home Office recently noted that state protection from non-state actors is available in China. In their March 2018 report, the UK Home Office assessed ‘Whilst the police force is highly susceptible to political interference and corruption, in general a person is likely to be able to obtain state protection against persecution or serious harm from non-state actors. However, this should be carefully considered on the facts of each case, taking full account of the individual circumstances of the person.’[25]
[25] "Country Policy and Information Note: China: Background information, including actors of protection and internal relocation", UK Home Office, 01 March 2018, OG9EF767913
FINDINGS AND REASONS FOR THE TRIBUNAL’S DECISION
The issue of ‘credibility’
The Tribunal is aware of the importance of adopting a reasonable approach in its findings of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Court of the Federal Court made comments on the determining ‘credibility’. The Tribunal notes in particular, the cautionary comment expressed by Foster J at [194]:
“…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could have been reasonably accepted…”
The Tribunal also acknowledges and accepts that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…” (see, The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, (1992) at paragraph [196]). However, the Handbook, states at paragraph [204]:
“…the benefit of doubt should, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts…”
When assessing claims made applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicant (s). When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to access the claim on the basis that it might be possibly true: see, MIMA v Rajalingam (1993) 93 FCR 220.
However, the Tribunal is not required to accept uncritically any, or all of the allegations made by the applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that the particular assertion made by an applicant has not been made out: see, Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey and Kopalapillai v MIMMA (1998) 86 FCR 547.
The applicants claim to fear harm from a local money lender associated with a local criminal syndicate because they are unable to repay in-full moneys borrowed which also include a very high interest rate. The applicants also claim that prior to their leaving the PRC, they had been harassed and threatened by the money lender and they had told the local police about his harassment and threats and they had provided no assistance. For the reasons that follow, the Tribunal does not find credible the applicants’ claims.
First, the applicants (and in particular, [applicant)) provided the Tribunal with very little information concerning how the money was borrowed from the local money lender. The applicant could not tell the Tribunal what the actual amount was still outstanding even though, he told the Tribunal that the money lender had prior to his leaving China ‘harassed him’ for the repayment of the money borrowed and interest accrued. The applicant [could] not tell the Tribunal with certainty if an ‘agreement’ had been signed with money lender setting out the ‘terms and conditions’ of the loan except to say to Tribunal, that a ‘handwritten’ note had been signed by him. Furthermore, the Tribunal noted that the amount borrowed [was] a significant amount to negotiated and borrowed from a third party or parties without some kind of paper trail in existence in some form. Money, in the Tribunal opinion, no matter the amounts involved in any particular instance when exchanged or borrowed attach to some record or records and even some kind of security. In this instance, the Tribunal was told by the applicant [that] no security (securities) was exchanged for the amounts provided by money lender.
Second, the applicant [provided] no timelines concerning how he came to locate the money lender or a possible description of him. After all, he had met this person and entered via commercial negotiations which ultimately led to a commercial treaty with him for a significant amount of money which he claims, he remains liable for its repayment. The applicant only provided a name of the money lender, no further details were provided. The applicant also indicated in his evidence to the Tribunal that the money lender was a ‘kind of small company’ but did not provide any further details to the Tribunal. It should be noted that this money lender had made demands from the applicant for repayment of sum and principal and interest and had also according to the evidence of both applicants before the Tribunal come to their family-owned [shop] and disrupted that business’ operation by restricting customers (until payments were made) to the money lender.
Third, the applicants and in particular applicant [was] unable to tell the Tribunal what the actual amounts was outstanding and demanded to be paid by the money lender. The Tribunal was only told the interest “…doubled tripled” in amount and that when the business was unable to generate the revenue to meet repayments demanded, the applicants and applicant [was] “…harassed…” by an increasingly angry money lender.
Four, the applicants and in particular, applicant [in] his evidence to the Tribunal told the Tribunal that he had made a total payment of loan and principal to the money lender in the amount of [amount]. The applicant [explained] that that money was transferred electronically from his account to his sister’s account in the PRC and that his sister ‘paid on his behalf the money lender.’ No corroborative evidence was provided by the applicants as far as it concerned the involvement of the [applicant’s] sister in this matter. However, when pressed for further details of these ‘repayments’ to the money lender, the applicant [indicated] that he could provide the documents. The applicant [was] provided with seven days to provide the Tribunal with this evidence. The Tribunal noted that none of the evidence the applicant [claimed] to be able to provide to the Tribunal for its consideration has been provided. Indeed, this absence of evidence of repayments made to a money lender as suggested in the applicant’s [evidence] seriously undermines the credibility of the applicant [as] far as it concerns his claims as presented to the Tribunal and leads the Tribunal to conclude that though the applicant and his wife may be facing some kind of financial pressure back in the PRC concerning their family’s finances, the situation they face is not the type that has been claimed before the Department in their application for Protection and not later before the Tribunal. It is the opinion and conclusion of the Tribunal that the alleged issues claimed with a money lender and a loan were only proffered to the Department and now before the Tribunal, to only attract Australia’s protection obligations. Indeed, it should also be pointed out, that both applicants were provided with the opportunity to present further details and documents to the Department concerning their circumstances but from what the Tribunal noted from the delegate’s decision record – no such details were forthcoming, and this adds to the conclusion of Tribunal that there may be financial issues experienced by the applicants in the PRC but they were not the type the both told the Tribunal in this review. The Tribunal therefore concludes and finds that the applicants (or any of his family in PRC) will not and do not face any type of harm or direct threat from any illegal money lender, operating as an individual or as a corporation or from any illegal underground banking association for any money amount borrowed and interest compounded and accrued as claimed by the applicants and as such does not have a well-founded fear of persecution in accordance with s. 5J(1)(a)(b) or (c) of the Act.
Finally, the applicants told the Tribunal that they decided to come to Australia to escape the ‘threats’ and ‘harassment’ of the money lender. The applicant [was] asked by the Tribunal whether he had told the local police about the money lender’s inflicted ‘threats’ and ‘harassments’ on him and his wife and on their family business. The Tribunal was told that the [applicant] ‘did report this to the police…’ but that the police in his local area ‘…was not useful…’ The applicants’ both displayed very little confidence in the local PRC police in protecting them or providing effective protection to them both and to their family if they were to return to the PRC in future. The Tribunal has noted from the country information referenced above that the Chinese authorities have in recent years taken a very proactive response against money related corruption within China and have indeed come down very hard on individuals and corporations which have been accused and convicted of corrupt practices involving large sums of money.[26] Therefore, the Tribunal does not accept as credible the applicants’ claim that they could not seek effective protection from the local PRC police. Moreover, there is nothing in the evidence provided by the applicants to suggest that that protection would not be forthcoming if required and needed. Also, there is no reason to suggest to the Tribunal that that protection – physical or even investigatory would not be forthcoming if it was requested in an emergency. Therefore, the Tribunal finds that effective police protection measures exist in China as provided for by section 5LA which (if what the applicants claimed is true) could access those when in the PRC and if they both return to the PRC in the reasonably foreseeable future. Furthermore, considering the country information the protection would be durable and would be made up of appropriate criminal laws and a reasonably effective police force which is capable of enforcing the law. Although country information indicates judicial autonomy is limited in cases that authorities consider politically sensitive or have vested economic or political interests, there is no information to suggest the claims raised by the applicants fall within this area and would not be taken seriously by the PRC authorities in their local area. There is, in the opinion of the Tribunal, an appropriate criminal law and legal system (in China), a reasonably effective police force and a functioning judicial system as required by s.5LA (2) (c) of the Act. The Tribunal considers on the evidence before it that this protection is durable and effective and finds that effective protection measures as defined in s. 5LA of the Act are available to the applicant [and] to his wife and other family members in China (PRC) and the applicants may access those when they return to China in the reasonably foreseeable future.
Conclusions
[26] see, country information provided herein
For the reasons given above, the Tribunal is not satisfied that the applicants face a real chance of persecution in the PRC in the reasonably foreseeable future and therefore the applicants are not persons in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicants doe not meet the refugee criterion in s. 36(2)(a), the Tribunal has considered the alternative criterion – complementary protection as provided for in s.36(2)(aa) of the Act.
The Tribunal having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion – complementary protection, provided for in s.36 (2)(aa) of the Act. For the reasons given in paragraphs [68] to [72] above, the Tribunal does not accept that the applicants were in any way under a threat from an illegal money lender or illegal underground bank for money the applicants borrowed from the illegal money lender and were unable to repay the money borrowed and spiralling interest charged, nor that any threat originating from the money lender or illegal underground bank or from any of their associates was directed at the applicants (and their family) because the applicants could not pay the money they had borrowed (including the compounded interest charged), nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to the PRC, there is a real risk that they will suffer significant harm because of any demand by a local illegal money lender or illegal underground bank for the repayment of an unpaid loan that was still outstanding, or that the local police would not provide them and their family with protection and assistance – if and when they require it. Therefore, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
Having concluded that the applicant does 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 the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION

The Tribunal affirms the decision not to grant the applicants a protection visa.
Peter Vlahos
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 5385

6 December 2021

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