1912059 (Refugee)

1912059 (Refugee) [2024] AATA 2386 (29 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1912059

COUNTRY OF REFERENCE: China
MEMBER:James Silva
DATE:29 April 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 April 2024 at 4:22pm
CATCHWORDS
REFUGEE – protection visa – China – particular social group – victim of loan shark – physical assault – attacks by criminal gangs – fear of killing – attacks on home – internal relocation – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Randhawa v MILGEA (1994) 52 FCR 437
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

The applicant is [an age]-year-old man from China (People’s Republic of China, PRC), who claims to be a citizen of that country.
The applicant arrived in Australia [in] December 2017, on a visitor visa. On 3 March 2018, he applied online for a protection (class XA) visa. On 3 May 2019, a delegate of the Minister for Home Affairs (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).
This is an application for review of that decision.
For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.
CLAIMS AND EVIDENCE
Protection claims
The applicant claims to have borrowed a large sum of money from a private moneylender (loan shark) who charged an exorbitant interest. When the applicant found himself unable to make repayments, the loan shark sent gangsters to beat up the applicant and ransack his home. The applicant decided to flee China. He fears that the gangsters will find, assault and perhaps kill him if he returns to China. As the loan was illegal, local authorities will not intervene to protect him.
Background
The applicant is [an age]-year-old man born in Baotou, Inner Mongolia. He speaks Chinese (Mandarin). The protection visa application contains some biographical information, but it appears to have been filled out hastily and without proper checking. It includes numerous inconsistencies and gaps, which the applicant addressed in his oral evidence at hearing.
The applicant wrote that he lived in Baotou from birth until his departure for Australia in late 2017. However, he told the Tribunal that in about 1980 he moved from Baotou to Tangshan, Hebei province, and lived there until he departed China in late 2017. The applicant said that his family moved to Tangshan to participate in the major reconstruction effort following the major earthquake there (which occurred on 28 July 1976).
The applicant attended [school] in Baotou ([between specified years]), and [then] in Tangshan ([specified years]), which coincides with his claimed move there with his family in around 1980.
The protection visa application records the applicant as having worked as [an occupation 1] for a [company] in ‘Fangshan’, Inner Mongolia. Even on a cursory glance, it appears that the person who completed the form paid little attention to detail, such as the spelling of ‘Tangshan’ or the fact that it is not in Inner Mongolia. At hearing, the applicant described his employment history in China in a somewhat piecemeal manner. The following key points emerged:
§ After completing school at [approximate age], he worked for a state-owned corporation in the [named] sector, doing [specified role].
§ Later in the hearing, he revealed that in about 1994 or 1995 (ages [range]), the company ‘bought him out’. The Tribunal understood this to be a kind of redundancy package or severance pay, perhaps linked to a company restructuring or similar.
§ The applicant said that, from this time, he had various temporary or casual jobs, often found through friends’ connections.
§ The applicant said that in 2011, he started a business with a friend (the Tribunal notes that this was also around the time the applicant married). They were subcontractors in [their] sector, employing more than ten people to undertake work that they had obtained in larger projects. The applicant claims that the business continued through to the first half of 2017, when his business partner absconded with business funds. The Tribunal addresses this in more detail below.
The applicant married [wife’s name] (DOB [specified]) in November 2011. The couple do not have any children. His wife lives with her aged mother in the family home in Tangshan. The applicant said that his parents are both deceased. His mother died in October 2022. He linked her death with his creditors’ harassment of the family since his departure from China. The applicant said that he is in contact with his wife and mother-in-law, and sends them money from Australia.
The applicant holds a PRC passport issued [in] 2014, and valid for ten years. He did not provide a copy to the Department, but presented it at the Tribunal hearing. The protection visa application (page 11) indicates no travel abroad prior to his trip to Australia. However, his passport shows travel to Europe and [Country 1], as follows:
§ Europe: The passport shows a Schengen visa issued [in] March 2016, for a single visit to Europe of up to 14 days, [between specified days in] March 2016. Arrival/entry stamps show his arrival in [one city] [in] March 2016 and departure from [another city] [later in] March 2016. The applicant said that he went there on a guided tour, visiting [two countries], and possibly two other countries (the stamps suggest these were [named]).
§ [Country 1]: The applicant obtained a [Country 1] multiple entry visa [in] April 2016, for stays of up to 90 days, valid till [April] 2021. Stamps in the passport show visits there from [June] to [August] 2016, and again from [September] to [December] 2016. The applicant told the Tribunal that he made two trips there, each of about two-and-a-half months, to comply with visa conditions. According to the applicant, the purpose of the visits was tourism. (For further details, see below.)
The applicant said that he currently lives in a share house in [Suburb 1]. Since his arrival in Australia in December 2017, he has had various jobs, including in [specified roles]. During the hearing, he commented that he had had little work during the COVID pandemic. He does not have any stable employment at present; most recently, he helped clean up following tree removals. Overall, the applicant was guarded about his current circumstances in Australia.
Evidence
The evidence before the Tribunal includes the following relevant material:
§ The applicant’s protection visa application form, submitted online on 6 March 2018. The applicant’s protection claims are set out on pages 15-16 of the form.
§ The applicant did not provide a copy of his PRC passport at the primary stage, but presented the passport at the Tribunal hearing.
§ There was no Department interview in this matter. In the decision under review, the delegate merely noted that the applicant had been given ample opportunity to submit additional information, and supporting documents if available.
§ The delegate’s protection visa assessment record (‘delegate’s decision record’) of 3 May 2019
The applicant appeared before the Tribunal on 23 April 2024, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Chinese (Mandarin) and English languages. He did not provide any documents or request the Tribunal to take evidence from witnesses.
The applicant is unrepresented in this matter.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Assessment of Claims
When considering claims the Tribunal must first make findings of fact, in order to assess whether there is a real chance of serious harm or a real risk of significant harm. The Tribunal recognises that the assessment of credibility is inherently difficult, and that special considerations apply in relation to asylum seekers. It has had regard to guidelines on the assessment of credibility issued by the Tribunal, Department and others.[1] In considering the applicant’s overall credibility, the Tribunal has reflected on the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’.
[1] The Tribunal has before it the AAT’s Migration and Refugee Division , Guidelines on the Assessment of Credibility; Department of Home Affairs, Policy – Refugee and humanitarian – Refugee Law Guidelines, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines); and the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, re0issued February 2019 at [203]-[204] (UNHCR Handbook)
The Tribunal takes into account that the applicant is unrepresented, appears to have little if any English, and seemed not to have strong presentational skills. At hearing, his statements were sometimes discursive, and tended to blur his (claimed) personal experiences with broad observations about life in China.
Although the applicant asserted his claims at hearing, his overall level of engagement in this application appears to be low. As noted above, this is reflected in the protection visa application, which contains incomplete and inaccurate information. During the review, his only contacts with the Tribunal were to request letters for Medicare; the Tribunal’s outreach letter of 27 February 2024 and hearing invitation of 2 April 2024 both went unanswered. While the Tribunal accepts that the applicant may rely on third parties to read and explain correspondence to him, the overall impression is that the applicant and his associates have taken a fairly casual approach to this application. In the Tribunal’s view, this does not sit well with his claim to be in need of Australia’s protection.
The Tribunal’s assessment of the claims and evidence follows.
Receiving country
The applicant claims that he is a national of China. He holds a PRC passport, speaks Mandarin and demonstrated his familiarity with that country. The Tribunal accepts he is a national of China, which is therefore the receiving country when assessing his protection claims.
The loan
The applicant wrote in the protection visa application that he borrowed ‘some usurious loan’, and that the amount outstanding had become ‘dramatically big’. He wrote that this had not been a legal arrangement. There were no other details.
The applicant’s urgent need for funds
At hearing, the applicant described the circumstances that led him to turn to a ‘loan shark’, in a piecemeal way.
§ He and a friend (business partner) started a subcontracting business in 2011, taking on portions of larger projects in [their] sector. They employed more than ten people. The business operated informally, and there were no records. In other words, it was not registered, did not rent premises and did not have assets. In relation to the workers, the applicant wrote down their work hours in a ledger, and destroyed this after payment of the wages (quarterly or each six months). Funds relating to the business were deposited and withdrawn through his business partner’s bank accounts.
§ The applicant said that the business sometimes turned a profit, depending on individual contracts. Overall, it afforded him and his family a reasonably comfortable life.
§ In relation to his five months’ or more (claimed) holiday in [Country 1], the applicant said that business had been booming, and he had managed to save some money, which he relied on during his stay in [Country 1]. He trusted his business partner to operate the business in his absence.
The Tribunal signalled its disquiet about his absence from his subcontracting business for five months, and asked whether he had gone to [Country 1] to work. The applicant replied that he stayed with friends and relatives in [Country 1], and had no need to work there.
§ The applicant said that in early 2017[2], his business partner disappeared, taking with him the funds belonging to the business.
§ In response to the Tribunal’s questions, the applicant said that he reported his business partner’s fraud to the police, and obtained a police report. He said that it had not occurred to him to bring the report to Australia; he had been unaware of the evidence that might be required to support a protection visa application. He did not indicate any interest in obtaining the report for submission to the Tribunal. He said that to date, the police have not been able to find his former business partner.
[2] The applicant referred to his friend’s disappearance in March or April 2017, but his other evidence (about the timing of the loan to pay the workers suggested it may have been earlier, in February 2017).
The applicant emphasised that many Chinese businesses operate informally, avoiding records and paperwork. Even so, the Tribunal found his account of his business venture to be vague and unsubstantiated. The applicant’s stay in [Country 1] for (at least) five months in 2016, while his business partner allegedly continued the business, is particularly problematic. The Tribunal found his evidence that this was a holiday, spent with friends and relatives, unconvincing. It does not accept that he has given an accurate account of the reasons for his travel to [Country 1] in 2016. In the Tribunal’s view, this significantly undermines the applicant’s claim as to the circumstances that led him to approach a loan shark.
Loan from loan shark
The applicant wrote that, due to his business partner’s disappearance, he was left owing a large amount of money in unpaid wages to the workers. He turned to a special loan company for funds.
The applicant told the Tribunal that in March or April 2017, he needed to raise funds urgently to pay employees’ wage. As noted above, he did not have any records relating to this.
§ The applicant that he had to borrow RMB[amount] (ca. $A[amount] at current exchange rate[3]), subject to a 20% interest rate per month.[4] There was a written contract. The applicant said that he did not have a copy of the contract; it had been unnecessary to bring it with him to Australia.
§ The applicant was reluctant to give details of the loan company, or its principal. Pressed, he stated that the loan shark’s name was [Mr A] (‘[Mr A]’). During the discussion, the applicant mentioned that the authorities have closed down [Mr A’s] loan company; however, he and his gangsters are still chasing the applicant (and presumably other debtors).
§ [Mr A] gave the applicant RMB[amount], being the principal loan sum minus the first month’s interest.
[3] Xe.com
[4] The interpreter recorded this as 20,000 per cent. However, the applicant’s subsequent evidence – for instance, that he received an initial amount of RMB[amount], as the loan shark immediately withdrew the first month’s interest from the capital, indicated that it was in fact 20 per cent.
Analysis: Country information discussed at hearing, including advice from the Department of Foreign Affairs and Trade (DFAT)[5], indicates that there is no comprehensive date on short-term cash lending (or loan sharking) in China, given the illegal nature of such operations.[6] The most recent DFAT report states that there is a long history of usury in China, and that according to the South China Morning Post, ‘demand for private loans’ is strong. This is particularly the case for small business who are unable to secure enough credit from large banks. It suggests that loan shark operations are ‘large-scale’.[7]
[5] DFAT, Country Information Report – People’s Republic of China, 22 December 2021
[6] See, for instance an earlier DFAT report: DFAT, Country Information Report – People’s Republic of China, 3 October 2019, para 3.237.
[7] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, paragraphs 3.122-3.124.
This country information is broadly consistent with the applicant’s claim to have turned to a loan shark to raise funds to pay workers, until such time as his small sub-contracting business could secure new projects.
§ However, the applicant has not corroborated his claims regarding either the business or loan. While he stated that there were no written records relating to the business, he did not show any interest in obtaining other documents such as the (claimed) police report against his business partner, or the loan contract itself.
§ Of greater concern is the applicant’s account of his activities in [Country 1] in the latter part of 2016. In the Tribunal’s view, the applicant’s claim to have spent more than five months in [Country 1], holiday and relying on savings, while his business partner ran the subcontracting business single-handedly, lacks credibility. This significantly undermines the applicant’s claims that he (and his business partner) ran a company throughout 2016 and into early 2017; that his business partner absconded with the funds; and that this led the applicant to turn in desperation to a loan shark. (For findings, see below.)
Inability to make loan repayments
The applicant wrote in the application form that he had been unable to repay the loan. He mentioned having borrowed money from relatives and friends, but did not provide other details.
At hearing, the applicant said that he had reckoned that the loan would enable him to pay the workers, and tide him over until he won some new contracts and had income flowing in once again. However, that did not eventuate.
§ He managed to make interest repayments in April and May 2017, in part through borrowing money from family and friends.
§ By June 2017, he found himself unable to repay any more money. He did not make any further payments from June 2017 until his departure for Australia in December 2017.
§ He noted that, in addition to the principal and compound interest, [Mr A] had also charged him – completely outside the loan contract – high amounts for debt recovery actions, such as having agents come to his home. He therefore believed that there was a large outstanding sum. The gist of his evidence was that there is no prospect of him being able to discharge the loan.
China: Attacks and threats
The applicant’s written claims include some references to the ‘usurious loan company’ having sent gangsters to intimidate him and force him to make repayments. He gave some examples:
§ The gangsters came to his home, assaulted him severely, smashed furniture and threatened to burn the house down if he did not make repayments. This prompted him to ask friends and relatives for money. They gave him some funds, but were unable to continue helping him financially.
§ The applicant knew other people who had borrowed from this loan company. Some disappeared mysteriously, and one was killed. Fearing for his life, he decided to flee China.
§ The applicant said that, as the loan was illegal, he could not seek protection from the local authorities.
§ The applicant believed it was futile to move to another location. The gangsters received commission on how much of the debt they could recover, and therefore followed and monitored the applicant. He feared that any attempt to move away from Tangshan would alert them to his plans to flee, and put him at even greater risk of harm.

At hearing, the applicant described his experiences from June 2017, when he first defaulted on the loan repayments; till his departure from China in December 2017.
§ [Mr A] arranged for gangsters to call on the applicant. These were de facto debt collectors, and earned commission on any money that they could recover.
§ The applicant said that he lived in fear throughout this period; he emphasised that he (and other family members) suffered mentally.
§ The applicant said that the gangsters assaulted him on several occasions. Once, in mid-2017 (June, July or August), they beat him up, causing him to lose several teeth. A few days later, they came by with a dagger, and stabbed him. After the stabbing, he went to a doctor for stitches, but left without receiving further treatment. The applicant gestured at hearing that he had scarring that could support this claim.
§ The intruders also entered the house and smashed items such as the television and washing machine with hammers. Asked whether they had seized any items, as a means of recouping some of the loan funds, the applicant initially said that such actions would be unlawful. Responding to the Tribunal’ surprise (namely that these thugs hired by a loan shark were constrained by legal niceties), he said that they would have seized items of real value (such as vehicles), but they otherwise just smashed items as a means of intimidation.
§ The applicant said that, in addition to the intimidation and violence, the loan shark used to charge for the debt recovery actions, such as a fee for coming to the house. This increased the debt further, adding to his sense of despair. His wife and mother also suffered. He noted, for instance, that his mother rarely left the house.
The Tribunal asked about the applicant’s continued residence in his home, for six months following the first claimed default (June to December 2017). He replied vaguely that he sometimes stayed in other places.
The Tribunal also queried how the applicant had managed to meet his and his relatives’ (wife, mother and mother-in-law) living expenses, as he had previously stated that none of these are/were in paid employment; and how he funded his travel to Australia. He intimated that he had also managed to keep some funds aside to meet his and his family’s living expenses during this period. In relation to his travel costs, he said that his flight to and visa for Australia had cost about RMB4,000 (ca. $A850), which he described as ‘not that much’.
Analysis: The Tribunal has significant concerns about the applicant’s account of his experiences in China, after allegedly first defaulting on the loan repayments in June 2017. These are, in sum:
§ In the Tribunal’s view, the applicant has not adequately explained his ability to remain at his home from June to December 2017, even following the alleged assaults in mid-2017 and the home invasions, and without making any further repayments. His comments about having stayed in other places from time to time were vague, and appeared improvised.
§ While the applicant alluded to dental issues (some missing teeth) and scarring on his torso, there is no evidence to link these with any assault(s) in mid-2017.
§ Similarly, the applicant’s reference to the thugs having smashed property in the family home lacks detail and substantiation, and is difficult to reconcile with his and his family’s continued stay in the house.
Events since December 2017 (departure from China)
The applicant departed China more than six years ago. He told the Tribunal that he remits money to his wife and mother-in-law, but he has not repaid any of the loan (which, he said, continues to accrue compound interest). As noted above, he suggested that it was futile to make partial repayments, as this risked simply antagonising the loan shark.
§ He mentioned that the authorities had forced [Mr A’s] company to close down. However, [Mr A] – like other illegal money lenders – continued to use agents to track down and enforce outstanding debts.
§ He said that the gangsters continue to ask about his whereabouts; his wife and mother-in-law simply reply that they do not know. In response to the Tribunal’s observation that the creditors must wonder how his wife and mother-in-law are making ends meet, if neither works, he explained that the gangsters have no way of knowing where they get money from. He added that even some relatives are not aware that he is in Australia.
§ The applicant attributed his mother’s death in October 2022 in part to the gangster’s harassment of the family.
§ The applicant said that [Mr A] and his people continue to pressure his wife regularly. Most recently, there was a call from Shanghai, asking after the applicant (but not referring specifically to the loan). He said he did not know what to make of that call.
§ Responding to the Tribunal’s observation that his wife and other relatives continued to live in the family home, he said that they had no other option. He said that his parents had bought the house, intimating that it was not a simple matter in China to sell such a property and move elsewhere.
The applicant’s account of events following his departure from China in late 2017 reinforces the Tribunal’s doubts about his claims as a whole. The Tribunal detected no real interest on the applicant’s part in considering options such as repaying at least some of the loan, or moving his family to a safer location. It found unconvincing his claims that [Mr A] simply accepted that the applicant was no longer around, despite his wife and mother-in-law living in the family home with no apparent source of income. Finally, it does not accept at face value that the death of the applicant’s elderly mother in late 2022 was at least partly attributable to ongoing harassment from the loan shark.
These concerns – when taken together with the applicant’s lack of candour about his activities in 2016 and 2017 (including his travel to [Country 1]), and his often vague, unsubstantiated claims – lead the Tribunal to disbelieve that the applicant borrowed a large sum from a loan shark; faced threats, physical violence and property damage when he was unable to pay; that he fled China fearing further harm; and that the loan shark has signalled his intention to pursue the applicant, for recovery of the funds and/or to simply punish him.
State protection and relocation
In his protection visa application, the applicant wrote that as it is illegal to borrow from loan sharks, the local authorities will not protect him from [Mr A]. He believed that [Mr A] and his associates had been monitoring him, and would be able to locate him anywhere in China. As such, there was no safe place for him in that country.
At hearing, the Tribunal noted the applicant’s own evidence that the authorities had closed down [Mr A’s] finance company. If correct, this accorded with country information that the police had undertaken large scale operations against loan sharks, which resulted in convictions for serious crimes linked with debt collection, such as assault and sexual assault.[8] The applicant replied that loan sharks often have corrupt links with the police. Even during an official crackdown, [Mr A] could simply mobilise his agents to go after the applicant for the debt.
[8] DFAT Country Information Report, 2021, paragraph 3.123.
During the exchange, the Tribunal formed the impression that the applicant was not engaged in what options he might have to resolve any problems in China, but rather what responses were necessary to secure protection in Australia. It does not accept that he has genuinely needed police or other State protection in China, or that he has seriously contemplated living outside Tangshan, to escape any harm from loan sharks or others.
Fears
The applicant claims to fear that the gangsters (the loan shark’s debt collectors) will find him, and torture or kill him if he is unable to make the repayments in full. He reiterated this at hearing. Given the extent of the Tribunal’s concerns, and its conclusion that the applicant did not flee China after failing to repay a loan shark, it does not accept that he genuinely fears related harm in China.
The applicant said that he did not fear harm in China for any other reason. During the course of the exchange, he mentioned that the Chinese Communist Party (CCP) is corrupt, and that life in that country is difficult. These appeared to be broad observations about China’s governance, and socio-economic conditions. The Tribunal did not detect in them any actual political opinion.
FINDINGS
The Tribunal has considered the applicant’s claims and evidence, cumulatively. It accepts as plausible that he has drawn at least to some extent on personal experiences of having borrowed money, perhaps from a loan shark, and the stress from facing steep repayments.
However, in light of the above concerns, the Tribunal does not accept that he borrowed a large sum of money in early 2017 to pay workers after his business partner ran off with money from their business. It does not accept that, after two repayments and exhausting options to borrow money from family and friends, he defaulted on the loan repayments in June 2017. It also does not accept that [Mr A] and his agents intimidated the applicant, caused him mental stress, assaulted him twice or ransacked his home, smashing furniture and whitegoods, while he was in China. It also does not accept that they harassed his wife, mother and/or mother-in-law; or that they played any part in the death of the applicant’s mother in October 2022. It does not accept that [Mr A], or anyone else, has signalled any adverse interest in the applicant since his departure from China.
The Tribunal accepts that financial considerations, including possibly the wish to repay some debts, influenced the applicant’s decision to leave China and come to Australia in late 2017. However, it does not accept that he fled China fearing persecution or significant harm, including assaults, property damage and/or psychological harm, at the hands of a loan shark and his agents.
ASSESSMENT: REFUGEE CRITERION
In order to meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s.5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion. The Tribunal assesses this in light of the above findings of fact and having regard to other relevant factors such as the applicant’s future conduct and country information.
The Tribunal refers to the findings of fact and relevant country information set out above. In brief, although country information points to continued loan sharking in China, despite an official crackdown, the Tribunal does not accept on the material before it that the applicant is indebted to, and targeted by, a loan shark and his hired thugs. Furthermore, it finds he has no genuine fears in this regard.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Based on the above analysis and findings, the Tribunal concludes that the applicant does not genuinely fear persecutory harm, as required by s.5J(1), and that there is also no real chance that [Mr A], his hired agents or anyone will persecute him, as required by s.5J(2).
In light of these findings, it is unnecessary for the Tribunal to determine whether the applicant’s claims as presented have a sufficient nexus to one of the grounds in s.5J(1)(a), either with reference to [Mr A’s] motivations or the possibility of the State withholding protection on a discriminatory basis (such as the applicant’s membership of a putative particular social group such as ‘debtors to loan sharks’). Similarly, it is unnecessary for the Tribunal to determine whether the feared harm relates to all areas of China, as required by s.5J(1)(c), or whether effective protection measures are available against the feared harm, as per s.5LA.
At hearing, the applicant voiced some criticism about the CCP’s corrupt practices, and that life in China is hard. The Tribunal accepts that he is genuinely dissatisfied about some of the political and socio-economic conditions in China, and that this influenced his decision to leave that country. However, the Tribunal is not satisfied that these views amount to a political opinion that motivates him to act or speak out against the government, or that is perceived as such. It is not satisfied that the applicant’s dissatisfaction, or his stay in Australia, or any other factors, give rise to a real chance of the PRC authorities inflicting persecutory harm on him, for any reason.
The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. It is not satisfied that he has a well-founded fear of persecution for any of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to China.
The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
ASSESSMENT: COMPLEMENTARY PROTECTION
The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.
The Tribunal concludes in light of the above findings of fact, and having regard to the same country information, that there are no substantial grounds for believing that there is a real risk that the applicant will suffer significant harm, in Tangshan or anywhere in China. Specifically, the Tribunal finds that there is no real risk that [Mr A], his agent or anyone else will inflict significant harm on the applicant, for any reason.
The applicant made some comments at hearing about the CCP’s corrupt practices and that life in China is difficult compared to Australia. He implied that his removal from Australia to China would be detrimental to him, in the sense that he would be returned to a less favourable environment. The Tribunal accepts that the applicant holds such concerns. However, his removal does not involve significant harm, as it does not intentionally inflict on him severe pain or suffering, or cause and intend to cause ‘extreme humiliation which is unreasonable’, as required by the relevant definitions of ‘degrading treatment or punishment’ and ‘cruel or inhuman treatment or punishment’.
The Tribunal concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering (physical or mental) is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty.
Accordingly 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 required by 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.
James Silva
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.
…

[2024] AATA 2386

29 April 2024

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Immigration

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