1910309 (Refugee)
[2024] AATA 3629
•5 August 2024
1910309 (Refugee) [2024] AATA 3629 (5 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1910309
COUNTRY OF REFERENCE: China
MEMBER:Frances Simmons
DATE:5 August 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 05 August 2024 at 8:41pm
CATCHWORDS
REFUGEE – protection visa – China – fear of harm from loan sharks – lent to save business – unable to repay and threatened and hit, family disturbed and furniture broken – police inaction – found by creditors after relocating – no further information provided and consent to decision without hearing – responsibility to specify claims and provide evidence – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1)(a), 5J, 36(2)(a), (aa), (2A), 65, 441A(5)
Migration Regulations 1994 (Cth), Schedule 2CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155Any 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
The applicant is a citizen of China. He arrived in Australia [in] November 2017 and applied for the visa on 19 December 2017. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 June 2024 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 5 August 2024. The invitation stated that if they did not attend the hearing, the Tribunal may make a decision on the case without further notice.
By email dated 15 July 2024 the applicant stated that he did not wish to attend the hearing and consented to the Tribunal making a decision on the papers. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5). In these circumstances, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
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.[1]
CONSIDERATION OF CLAIMS AND EVIDENCE
[1] DFAT, Country Information Report – China (22 December 2021).
Evidence before the Department
According to the information the applicant provided in his protection visa, he was born in [Year] in China. The applicant’s claims for protection can be summarised as follows:
a.Several years ago, he built a business in his hometown, but it failed. He wanted to save his business, so he borrowed money from friends and relatives, but it was not enough.
b.The applicant borrowed money from the usury for a high price. Now he cannot pay back the loan. The people he borrowed money from threatened him. They came to his house and disturbed his family. He ‘cannot afford the expense’ and this is why he is claiming protection.
c.The applicant was physically hit by the money lenders, and they broke the furniture in his house. He sought help from the police, but the police asked for evidence before they could act. They just recorded his complaint.
d.The applicant attempted to move to other cities in China but was found by his creditors. Because he feared he would be harmed further, he travelled to Australia. The money lenders are very powerful, and he will be harmed again if he returns to China.
The applicant did not provide any further information or documentation in support of his claims. The applicant was not invited to an interview with the delegate.
On 15 April 2017, the delegate refused to the grant the applicant a protection visa.
Evidence before the Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision. The applicant provided a copy of the decision of the delegate with the application for review.
On 26 March 2024, a Tribunal officer wrote to the applicant and requested that he complete a pre-hearing information form. In an email dated 2 April 2024, the applicant indicated that he did not want to attend the hearing. He did not provide any further information in support of his claims.
The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 5 August 2024. The invitation explained that if the applicant did not attend the hearing, the Tribunal may make a decision about his case without further notice. On 15 July 2024 the applicant emailed the Tribunal and stated that ‘I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear’. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5). In these circumstances, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
REASONS
Based on the evidence before it, the Tribunal is satisfied the applicant is a citizen of China, and that China is the applicant's ‘receiving country’ for the purposes of the refugee criterion and complementary protection criterion.
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. 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. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant.[2]
[2] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70
The Tribunal accepts that the applicant is a citizen of China who was born in China on [Date] in Jiangsu province. The Tribunal accepts that the applicant departed China legally on a passport issued in his own name and arrived in Australia [in] November 2017.
Before the Department, the applicant claimed that he fled China to escape harm from money lenders. The applicant’s claims lacked detail about who he borrowed money from, the quantum borrowed, and the circumstances in which he claims to have been threatened and assaulted because he borrowed money from a usuary in China, or why he asserts these money lenders are ‘very powerful’. The applicant has not provided any information about the amount of money he borrowed in China, whether he made any repayments, or whether he or his family have had any contact with the money lenders since he arrived in Australia in November 2017, over six years ago. Nor has he provided any details about when or where he made a police complaint or his efforts to relocate within China.
The applicant was put on the notice that the Tribunal was unable to make a favourable decision based on the evidence before the Tribunal and invited to attend a hearing to present evidence and arguments in support of his claims. The applicant declined to attend the hearing and expressly consented to the Tribunal making a decision based on the evidence before it. He did not provide any additional information to the Tribunal about the claims he made before the Department.
Given the paucity of evidence before it, the Tribunal is not satisfied that the applicant left China because he was of adverse interest to money lenders or anyone else in China. While the Tribunal acknowledges there are reports of criminal activity by ‘underground banks’ and ‘shadow lenders’ in China,[3] the information the applicant provided in his protection visa application about why he left China and what he feared would happen on his return was brief and undetailed. Having considered the very limited evidence before it, the Tribunal is not satisfied that the applicant left China because he was threatened or harmed by money lenders as claimed or that he fears being harmed if he returns to China. The Tribunal does not accept that the applicant sought assistance from the police or that he attempted to relocate in China or that he has outstanding debts to money lenders. The applicant has not claimed he is now or was in the past of any adverse interest to the Chinese authorities.
[3] Delegate’s decision record, pp.3-4 and the country information cited therein.
Looking forward, the Tribunal is not satisfied that there is a real chance that if the applicant returns to China now or in the foreseeable future that he will face a real chance of serious harm or significant harm for the reasons claimed in his protection visa application or for any other reason. Based on the limited information before it, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm from money lenders or for any reason set out in s.5J(1)(a) of the Act if he returns to China now or in the reasonably foreseeable future. Therefore, the applicant does not meet the definition of a refugee in s 5H of the Act.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[4] ‘Significant harm’ is exhaustively defined in s.36(2A) and s.5(1) of the Act, which are extracted in the attachment to this decision.
[4] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
As noted above, the information before the Tribunal about the reasons that the applicant claimed protection in Australia is scant. Having regard to its findings of fact, the Tribunal is not satisfied that there is a real risk that the applicant will face significant harm in China because he has outstanding debts to money lenders or for any other reason.
Having regard to its findings of fact, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm as defined in s.36(2A) and s 5(1) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal 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).
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.
Frances Simmons
MemberATTACHMENT - 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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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Natural Justice
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Jurisdiction
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