1912400 (Refugee)

1912400 (Refugee) [2021] AATA 3085 (8 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1912400

COUNTRY OF REFERENCE: China
MEMBER:Joseph Lindsay
DATE:8 June 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 8 June 2021 at 2:08pm

CATCHWORDS
REFUGEE – protection visa – China – particular social group – victims of loan sharks – physical assault – torture – state protection – delay in applying for protection – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 7 May 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 11 May 2018. The applicant participated in an audio hearing with the Tribunal on 25 November 2020 and was assisted by an interpreter.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–5LA, 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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s responses to his written claims for protection are as follows:
Select the country or countries from which this applicant is seeking protection and cannot return to:
A:China
Provide reasons why this applicant left that country or those countries?
AI am hunted by loan sharks. I am fearful of my life and safety. Please refer to the statement.
Did this applicant experience harm in that country or those countries?
AYes
Give details including:
· the type of harm this applicant experienced
· the person/people responsible for the harm
· why they harmed this applicant.
A          I was captured and bitten by loan collectors. Please refer to the statement.
Did this applicant seek help within the country or those countries after the harm?
A          Yes
Give details including:
· the name of the person/organisation/authorities this applicant asked for help
· what help they provided, if they helped
ACalled police but the police department did not protect me. Please refer to the statement.
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
ANo
Give details including for why this applicant did not try to move to another part of the country or those countries.
AHousehold registration system does not allow free movement in China. Please refer to the statement.
Explain what the applicant thinks will happen to them if they return to that country or those counties:
AThe loan sharks will find me and harm me. Please refer to the statement
Does this applicant think they will be harmed or mistreated if they return to that country or countries?
A          Yes
Give details including:
· the type of harm or mistreatment this applicant is likely to experience
· the person/people who would be responsible for the harm or mistreatment
· why they would harm or mistreat this applicant.
A          The money shark is still tracking me in China. Please refer to the statement.
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
A          No
Give details about why this applicant thinks the authorities could not, or would not, protect them.
AThe police did not offer help before and will not protect me. Please refer to the statement.
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
A          No
Give details about why this applicant is unable to relocate.
AHousehold registration system does not allow free movement in China. Please refer to the statement.
Below is a copy of the statement signed by the applicant on 30 April 2018:
Dear Sir/ Madam,
My name is [name]. I am a citizen of China ([Passport number]). I am applying for a Protection visa because I have been hunted by loan sharks and the police department of China will not protect me.
I came from Laixi city, Shandong, China. I am the only child of the family. When I was young, I had a happy family. My father used to be an owner of a [business]. All was changed when my mother was diagnosed with cancer.
We were devastated by the news. We had limited access to medical treatment in Laixi City. We had two choices, go to any of the major cities for treatment or stay in the local hospital. The latter is almost a death sentence.
My father wanted to save her. He took my mother to Beijing, where we believed to have the best treatment. After a few days, he called me from Beijing and told me that they scheduled an appointment with an expert. The expert confirmed that she had cancer and told my father that he should expect a huge medical bill if my mother is treated in their hospital.
Without a second thought, he hospitalized her.
I was in shock because I was sure we did not have enough money. I told him that if my mother is treated in Beijing, she will not be supported by public medical insurance system. My father told me that he was aware of that. He was going to mortgage [the business], which was the most valuable asset in our family.
My father came back to Laixi City and signed power of attorney and gave me full control of [the business]. He asked me to find a financial institute to mortgage [the business] and get the money for my mother. The next day he went back to Beijing.
Not sure what to do, I started to find information on Baidu (which is the most popular search engine in China, the equivalent of Google). I contacted one of the "Cash Solution" provider to came to our place and negotiated with me. I told the agent, [Agent A], that my mother was very ill, and we needed the money very quickly. He checked our accounting books and went to [the business] and inspected the operation. The next day he came back with some experts and inspected [the business] again. He told me that he could authorise the loan at annual interest rate of 25% to us on a 12 months term, if we mortgage [the business]. I agreed. The next day he came with a lawyer. They brought some documents for me to sign. Before signing the document, he warned me that if we could not repay the money within 12 months, they will be the lawful owner of [the business]. I told him that we understood, and we were prepared for that. Then we signed the documents. I was young and na'ive. I did not realise I was dealing with money shark and thought [Agent A] was from a regular financial institute.
The money came into my account very soon. We spent all the money in medical bills and borrowed money from all of our friends and family. However, we still unable to save my mother. The money ran out and she passed away.
After the funeral, my father and I counted our money and debts. As expected, we were deep in debt and unable to repay most of them. We contact [Agent A] and told him that we were not going to be able to repay the loan in time. We asked him for extension.
He said he needed to audit our financial situation. We agreed. We prepared the bank statements and the accounting books and invited him for the audit. After inspecting the accounts, [Agent A] was very upset, because [the business] was not doing well in the past year. It did not create enough avenue to even pay for the interest and the revaluation of [the business] is only half of its original price. We explained that [the business] was not well managed because none of us had the time to attend to the management. We told him that we would devote ourselves in this and next year we should do much better. We took him out for a big feast and gave him a red pocket with a couple of thousand Chinese yuan of cash, hoping that he would give us some discretion. He reluctantly agreed to give us an extension but the interest rate was increased to 40% per year. We agreed as we thought the worst situation was losing [the business]. But we still want to give a last try to save it. A few days later, he came back and we signed the agreement for 24 months extension.
Unfortunately, it did not go very well. Over years, China has been suffering from heavy air pollution. The government tried to solve the problem. Over the next year, the [government] came to [the business] for a few times for inspections. They were not satisfied by the operation because [regulation compliance issues]. With the limited budget, it was not possible for us to meet the standard. After a few warnings, the [government] suspended the operation until we satisfy the requirements.
[Agent A] soon noticed the situation. He was very upset. He said he should not trust us and approve the extension, and now his life is on the line as his boss is a gangster. He told me that I must repay the debt because [the business] is worthless now. A group of people showed up and took me to [the business] and told me that they would not let go of me if I do not pay back. They found different reasons to hit me. Later that night, my father came but things were not resolved. They forced my father to leave. The police came twice to tell us that debt disputes should be resolved through the courts and it is not their responsibility but they hope there is not a violent incident. At that time, I chose silence and did not tell the police that I was beaten. I realized that they would not protect me and things would go worse if I tell the police. I was forced to stay there overnight that night and then they took me to other lenders during the day to see if I could borrow any money to pay them back. Unfortunately, no one was willing to lend money to me. On the sixth day, they lost their patience, a tall guy who looks like the leader forced me to take off my shirt and hit my back with a baseball bat. An entire bucket of water was poured on me. Then they blow me with a big fan. I was shivering. I was forced to dial all the numbers in my phone's address book to borrow money. My father came again. He had a stroke during the conflict. He lied down and looked very painful. Those people seem to have been shocked too. They stopped. I took the chance and rushed to the hospital with my father. His life was saved but he lost his ability to walk.
My father asked me to leave as far as possible. One of his old friends helped me to prepare the documents to come to Australia. The money shark is still tracking me in China, and threatened to persecute me. My father is still in hospital and my cushion visits him sometimes and pass my news to him. I am still afraid to contact him directly.
It all came from my mother's illness. But I do not regret it. It was the imperfect medical system in China and the irresponsible police force led me to the horrible situation. Having home but cannot return. These years in Australia, I rely on friends' support and feel the peace and harmony of the world. I request the Department of Immigration to consider my circumstance and grant my protection. I am dreaming that one day I can see my old father again and taking care of him by myself.
In the hearing, the applicant gave evidence as follows. He was born in Qingdao, in Shandong Province in China on [date]. He completed senior secondary school. After he finished school, he did not undertake any further education or training. He went to work in a [factory]. He did that job for around a year and a half. He lived at the factory where he worked. He then left that job and went to become [an Occupation 1]. He worked for [Company 1]. He said that he was not a very good [Occupation 1], and he actually learned how to be [another occupation] rather than [an Occupation 1]. However, despite not being a very good [Occupation 1], he ended up working in that job for five years. He said he left that job because there was a lack of [work] due to the global financial crisis. He said that, around that time in 2008, there was very poor economic activity in that part of China. He said that he was not living at home at this time, but rather he was living in the far southern part of China in Guangdong. He said he went to Guangdong because there were job opportunities there and he had a few friends there. He said his friend actually got him the job at [Company 1]. He said he actually lived with his friend for a while, but his friend got transferred to another place for work. He said that he continued living at the same place, this time by himself. He said the accommodation in which he was living had actually been provided by [Company 1] and was very affordable.
He then spoke about his family situation. He said his father worked at a [business]. He said he was married and his wife was in China. He said he had [child] who was born in [year]. He said his wife and [child] still live in Laixi and that he financially supports them. He contacts his wife and [child] once a week using WeChat. He said that he came to Australia in 2013, [details deleted].
He said that his mother died in 2012, but that before she died she fell sick and due to her high medical expenses he borrowed money from loan sharks to pay for those medical expenses in around 2011 or 2012. He said that he could not repay the money and then got threatening phone calls as well as notes on the door where he lived. He said that he could not go to work because the loan sharks would go to his workplace to try and find him. He said that on one occasion he was taken away by the loan sharks and “confined.” He said the loan sharks called all of his relatives, friends and family members and used different kinds of threats. He said his family were worried about his safety.
He said the loan sharks told him he could not leave unless he paid them the money he owed them. He said he then gave the loan sharks some money and they told him he had three days to repay them. He then said that it was his wife’s mother who paid the money to the loan sharks. She said that his wife’s mother came to where the loan sharks were keeping him and gave the loan sharks the money. In all, he said that he was detained with the loan sharks for two days and one night. He said that while he was there, the loan sharks beat him a few times. Then he said that the loan sharks actually slapped his face a few times – but that only happened once because he fought back. Then he said that the loan sharks threatened to break his leg, but they didn’t end up breaking his leg. He said there were three loan sharks who had detained him, but he did not know any of them.
When asked if he could remember when the alleged incident happened, he said that he could not remember, but that it was in either 2012 or 2013. He then said that his wife came on an electric scooter to the place where he was being kept, a house in a remote area, and paid the loan sharks some money. He said that his wife knew the address of the house in which he was being kept and that was how she found him. He said the house was about [distance] drive away from his home. Then he said that he had actually been kept at an abandoned [location] and not a house.
He said that after he left China, the loan sharks made threatening phone calls to his friend and to his family, specifically to his father. He said that he was told the loan sharks said if they caught him that he would be a dead person.
He said that, apart from this incident, he was not harmed again while he was in China. He said that he did not report the incident to the police because he did not dare.
He then said that there were no other claims he wished to make to the Tribunal.
In respect to his written protection visa application, he said his friend helped him, but that all of the information in the written protection visa application was complete, correct and up-to-date in every detail at the time he lodged it. He further said that he read all of the information in the written protection visa application before it was submitted.
When asked why he waited so long when he was in Australia, from 2013 to 2018, before he submitted a protection visa application, he said that he did not know about the protection visa. The applicant then made admissions that:
a.He arrived in Australia in October 2013 on a visitor visa.
b.The visitor visa expired in January 2014.
c.He was unlawful from January 2014 until he applied for the protection visa in May 2018.

The Tribunal then put to the applicant that it may have concerns, subject to his response, that he may not have given credible information in respect to his protection claims.
The Tribunal put to the applicant that given he was in Australia for a number of years after he left China, including that he was unlawful from January 2014 until he applied for the protection visa in May 2018, the Tribunal may find that he did not have a genuine fear of returning to China. In response, the applicant said he did have fears.
The Tribunal put to the applicant that there appeared to be a substantial period of time between the time of the alleged incident in either 2012 or 2013 and the time he left China in October 2013, and if there had been a genuine threat to his safety from the loan sharks there would have been further incidents. In response the applicant said that he was hiding. When the Tribunal put to the applicant that in the hearing he had not said he went into hiding after the alleged incident, he said he was actually not living at home at the time. He then said he could not live at his home because he would be arrested. He then said he was afraid he would be arrested by the loan sharks. When asked where he was hiding, he said that he was at no particular address and he would hide “here and there” every day.
The Tribunal put to the applicant that it may find that he had given inconsistent information to the Tribunal in this respect because in his written protection visa application he claimed that he had only lived at one place from January 2010 to September 2013. In response, he said he used that address for correspondence, but he did not live there.
The Tribunal put to the applicant that it appeared that there may be other inconsistencies in his evidence, where in his written protection visa application he said he had been captured and “bitten” by loan collectors. In response, he said he had not been bitten and this was just poor expression in English.
The Tribunal put to the applicant that it appeared that there may be other inconsistencies in his evidence, where in his written protection visa application he said he did call police, but in the hearing he said he didn’t contact the police. In response, he said that his family called the police, but the police didn’t do anything.
The Tribunal put to the applicant that it appeared that there may be other inconsistencies in his evidence, where in his written protection visa application he said he did not move, but in the hearing he said he was hiding and moved around. In response, he said that even though he did not write this in his application it does not mean he did not move around.
The Tribunal put to the applicant that it appeared that there may be other inconsistencies in his evidence, where in his written protection visa application he said his father was an owner of [the business] but in the hearing he said his father was working at [the business]. In response, he said that when he was young his father owned [the business] but later he just worked at [the business].
The Tribunal put to the applicant that the account he gave in the hearing in regard to his alleged circumstances with the loan sharks appeared to be significantly different to what was written in his application and that in the hearing about his claimed circumstances in China he had made no mention of any of the following claims:
-          His father took his mother to Beijing for treatment.
-After a few days, his father called the applicant from Beijing and told him that they scheduled an appointment with an expert.
-The expert confirmed that she had cancer and told his father that he should expect a huge medical bill if his mother is treated in their hospital.
-He told his father that if his mother is treated in Beijing, she will not be supported by the public medical insurance system.
-          His father was going to mortgage [the business].
-His father came back to Laixi City and signed a power of attorney and gave the applicant full control of [the business].
-His father asked him to find a financial institute to mortgage [the business] and get the money for his mother.
-The applicant contacted one of the “Cash Solution” providers who came and negotiated with him.
-The applicant dealt with an agent named [Agent A], and that [Agent A] checked the accounting books and went to [the business] and inspected the operation.
-          The next day [Agent A] came back with some experts and inspected [the business] again.
-[Agent A] told the applicant that he could authorise the loan at an annual interest rate of 25% to him on a 12-month term, if he mortgaged [the business].
-          The applicant agreed to mortgage [the business].
-The next day [Agent A] came with a lawyer and brought some documents for the applicant to sign.
-Before signing the documents, [Agent A] warned the applicant that if he could not repay the money within 12 months, [Agent A] will be the lawful owner of [the business].
-          The applicant told [Agent A] that he understood and signed the documents.
-After his mother died, the applicant found that he was deep in debt and unable to repay the debts.
-The applicant and his father contacted [Agent A] and told him that they were not going to be able to repay the loan in time and asked him for an extension.
-The applicant and his father prepared the bank statements and the accounting books and invited [Agent A] for the audit.
-After inspecting the accounts, [Agent A] was very upset, because [the business] was not doing well in the past year.
-The [government] came to [the business] a few times for inspections. They were not satisfied by the operation because [regulation compliance issues] and so [government] suspended the operation until the applicant and his father satisfied the requirements.
-[Agent A] was very upset and said the applicant must repay the debt because [the business] is worthless now.
-A group of people showed up and took the applicant to [the business] and told him that they would not let go of him if he did not pay the debt and then they hit him.
-          Later that night, the applicant’s father came but things were not resolved.
-          “They” forced the applicant’s father to leave.
-The police came twice to tell the applicant and his father that debt disputes should be resolved through the courts and it is not their responsibility but they hope there is not a violent incident.
-At that time, the applicant chose silence and did not tell the police that he had been beaten.
-The applicant realised that the police would not protect him and things would get worse if he told the police.
-He was forced to stay there overnight that night and then “they” took the applicant to other lenders during the day to see if he could borrow any money to pay them back.
-          Unfortunately, no one was willing to lend money to the applicant.
-On the sixth day, “they” lost their patience, and a tall guy who looked like the leader forced the applicant to take off his shirt and hit his back with a baseball bat (emphasis by Tribunal).
-          An entire bucket of water was poured on the applicant.
-          Then “they” blew the applicant with a big fan.
-The applicant was forced to dial all the numbers in his phone’s address book to borrow money.
-The applicant’s father came again and he had a stroke during the conflict. The applicant’s father was rushed to the hospital but he lost his ability to walk.
-          The applicant’s father asked the applicant to leave China.
-One of the applicant’s father’s old friends helped him to prepare the documents to come to Australia.
-          The loan shark is still tracking the applicant in China.
The Tribunal put to the applicant that what he had written in his protection claims about his alleged circumstances in China appeared to be significantly different to what he had told the Tribunal in the hearing, and subject to his response the Tribunal may find that the applicant has not given credible information to the Tribunal about any of his protection claims.
In response, the applicant said that his English was not good and so he asked his friend to write his claims on his behalf. He said that he did not know why or how the story told in his written claims could have happened that way.
The Tribunal put to the applicant that it may find that the applicant’s claims for protection are not credible and that he did not have a genuine fear of harm in returning to China. In response, the applicant said that he did want to go back to China.
He said there were no further submissions he wanted to make.
Analysis and findings
The Tribunal has carefully considered the information made available to the Tribunal as indicated above and has made the following findings.
The Tribunal does not accept that the applicant gave credible information to the Tribunal about any of his protection claims, whether they be the written claims or the oral claims made at the hearing. The Tribunal finds the applicant’s evidence at the hearing in respect to any alleged threats from loan sharks was vague, evasive, lacked detail, was inconsistent and embellished.
In comparing the applicant’s written claims to the oral claims made at the hearing, the Tribunal accepts that about the only thing in common is the story that his mother got sick, and then he borrowed money from loan sharks to pay his mother’s medical bills, but then she died. However, in almost all other aspects the applicant’s claims of what happened to him in China are inconsistent. The Tribunal finds that the applicant’s evidence at the hearing that he was kept at an abandoned [location] for two days and one night before his wife came on her scooter to collect him and pay the loan sharks some money is significantly different to the written claims as outlined above. The Tribunal is satisfied that the applicant’s claims, whether the claims made at the hearing or the written claims are an embellishment and are not credible. Specifically, the Tribunal does not accept the applicant’s claims that:
-          His father took his mother to Beijing for treatment.
-After a few days, his father called the applicant from Beijing and told him that they scheduled an appointment with an expert.
-The expert confirmed that she had cancer and told his father that he should expect a huge medical bill if his mother is treated in their hospital.
-He told his father that if his mother is treated in Beijing, she will not be supported by the public medical insurance system.
-          His father was going to mortgage [the business].
-His father came back to Laixi City and signed a power of attorney and gave the applicant full control of [the business].
-His father asked him to find a financial institute to mortgage [the business] and get the money for his mother.
-The applicant contacted one of the “Cash Solution” providers who came and negotiated with him.
-The applicant dealt with an agent named [Agent A], and that [Agent A] checked the accounting books and went to [the business] and inspected the operation.
-          The next day [Agent A] came back with some experts and inspected [the business] again.
-[Agent A] told the applicant that he could authorise the loan at an annual interest rate of 25% to him on a 12-month term, if he mortgaged [the business].
-          The applicant agreed to mortgage [the business].
-The next day [Agent A] came with a lawyer and brought some documents for the applicant to sign.
-Before signing the documents, [Agent A] warned the applicant that if he could not repay the money within 12 months, [Agent A] will be the lawful owner of [the business].
-          The applicant told [Agent A] that he understood and signed the documents.
-After his mother died, the applicant found that he was deep in debt and unable to repay the debts.
-The applicant and his father contacted [Agent A] and told him that they were not going to be able to repay the loan in time and asked him for an extension.
-The applicant and his father prepared the bank statements and the accounting books and invited [Agent A] for the audit.
-After inspecting the accounts, [Agent A] was very upset, because [the business] was not doing well in the past year.
-The [government] came to [the business] a few times for inspections. They were not satisfied by the operation because [of regulation compliance issues] and so the [government] suspended the operation until the applicant and his father satisfied the requirements.
-[Agent A] was very upset and said the applicant must repay the debt because [the business] is worthless now.
-A group of people showed up and took the applicant to [the business] and told him that they would not let go of him if he did not pay the debt and then they hit him.
-          Later that night, the applicant’s father came but things were not resolved.
-          “They” forced the applicant’s father to leave.
-The police came twice to tell the applicant and his father that debt disputes should be resolved through the courts and it is not their responsibility but they hope there is not a violent incident.
-At that time, the applicant chose silence and did not tell the police that he had been beaten.
-The applicant realised that the police would not protect him and things would get worse if he told the police.
-He was forced to stay there overnight that night and then “they” took the applicant to other lenders during the day to see if he could borrow any money to pay them back.
-          Unfortunately, no one was willing to lend money to the applicant.
-On the sixth day, “they” lost their patience, and a tall guy who looked like the leader forced the applicant to take off his shirt and hit his back with a baseball bat (emphasis by Tribunal).
-          An entire bucket of water was poured on the applicant.
-          Then “they” blew the applicant with a big fan.
-The applicant was forced to dial all the numbers in his phone’s address book to borrow money.
-The applicant’s father came again and he had a stroke during the conflict. The applicant’s father was rushed to the hospital but he lost his ability to walk.
-          The applicant’s father asked the applicant to leave China.
-One of the applicant’s father’s old friends helped him to prepare the documents to come to Australia.
-          The loan shark is still tracking the applicant in China.
The Tribunal does not accept any of the applicant’s claims at the hearing including that he was kept at an abandoned [location] for two days and one night before his wife came on her scooter to collect him and pay the loan sharks some money.
The Tribunal does not accept that the applicant was ever threatened or harmed by any loan sharks in China or anywhere else. Accordingly, the Tribunal does not accept that the applicant gave the Tribunal credible information in this respect.
The Tribunal accepts that a) the applicant arrived in Australia in October 2013 on a visitor visa, b) the visitor visa expired in January 2014, and c) he was unlawful from January 2014 until he applied for the protection visa in May 2018. The Tribunal does not accept that the applicant has a genuine fear of harm in returning to China given that the applicant waited many years when he was in Australia, from 2013 to 2018, before he submitted a protection visa application.
The Tribunal does not accept that the applicant gave credible evidence about moving around in China to avoid being harmed by loan sharks. The Tribunal finds the applicant’s explanation that he was hiding at no particular address and he would hide “here and there” every day to be unconvincing and not credible.
The Tribunal does not accept that the applicant gave credible evidence about contacting police in China where in his written protection visa application he said he did call police, but in the hearing he said he didn’t contact the police. The Tribunal finds the applicant’s explanation that his family called the police to be unconvincing and not credible.
In considering and balancing the above findings about the applicant’s credibility, overall the Tribunal does not accept that any of the applicant’s claims in respect to loan sharks in China are credible. The Tribunal does not accept that the applicant was ever attacked or otherwise harmed by loan sharks in China at any time. The Tribunal does not accept that the applicant sought assistance from the Chinese authorities in respect to any loan sharks in China. The Tribunal does not accept that the applicant ever had to move due to any fears of loan sharks in China. The Tribunal does not accept that the applicant gave credible information in respect to any of his protection claims and the Tribunal finds that all of the applicant’s protection claims, either in the written application or at the hearing, are not credible.
In balancing the above findings and considerations, the Tribunal does not accept that the applicant would face a real chance of serious harm or a real risk of significant harm if he returned to China in the foreseeable future. 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 any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay

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.
…
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.
…
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.
…
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 of 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 of persecution would not exist if it were assumed that the fear of 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 3085

8 June 2021

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