1913148 (Refugee)

1913148 (Refugee) [2022] AATA 2502 (21 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1913148

COUNTRY OF REFERENCE: China
MEMBER:Jane Marquard
DATE:21 June 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 June 2022 at 9:17am
CATCHWORDS
REFUGEE – protection visa – China – particular social group – victims of moneylenders – threats from criminal gangs – business debts – applicant’s house demolished – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65, 425
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
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
BACKGROUND TO THIS APPLICATION FOR REVIEW

The applicant is [an age]-year-old woman from the People’s Republic of China (China).
She first arrived in Australia [in] September 2017 on a [Visitor] visa. She departed Australia [later in] September 2017. She arrived again in Australia on another [Visitor] visa [in] April 2018 and departed [in] September 2018, returning [in] November 2018.
The applicant applied for a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act) on 10 January 2019. She claims that she will be persecuted by moneylenders to whom she owes money.
A delegate of the Minister for Home Affairs refused to grant the visa on 9 May 2019.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. Details of the relevant law are set out below, but in summary, in order to meet the refugee criterion, the applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criterion there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to his or her home country there is a real risk of significant harm.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
Australia acceded to the 1951 Convention relating to Status of Refugees[1] in 1954 and to the 1967 Protocol relating to the Status of Refugees[2] in 1973, thereby undertaking to apply their substantive provisions.[3] For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[4]
[1] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).
[2] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[3] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).
[4] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c) of the Act. 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.
Refugee criterion
Section 36(2)(a) of the Act 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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).
The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Brennan CJ).
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 of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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) of the Act, which are extracted in Attachment A to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal must take account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. While the Tribunal should have regard to policy, as there is public interest in achieving consistency, Departmental policy is not binding on the Tribunal.[5]
[5] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
EVIDENCE CONSIDERED IN THIS REVIEW
The Tribunal has considered evidence and submissions made to the Department, other Departmental records pertaining to the applicant, communications to this Tribunal and independent sources about China.
Summary of evidence in Department files
The applicant provided details of her claims in an application form to the Department, as well as supporting documents. A summary of her evidence follows.
She said that she was born in Sishui, Shandong province in China. She said that she has ‘no religion’. She claimed that she was married [in] December 2002 and has a daughter, aged [age]. Her husband and daughter reside in China. She said that she speaks to her relatives daily.
She claimed in her application that she attended [school] until [year]. She said that from [year] to 1997 she was unemployed, and her parents supported her. From July 1997 to May 2015, she was a ‘freelance worker’ in Jining, Shandong province. She claimed that she had a [product] store in Jining, from May 2016 to 16 November 2018, called ‘[name]’.
She said that she visited [Country 1] in November 2016 and 2017.
She said that she went bankrupt and had to borrow from an underground bank to support her family. She claimed that the interest rate was ‘unreasonably high’. She said that she worked every day but was unable to repay the loan. As a result, her family was continually harassed and threatened by the underground bank and criminal syndicate. She said that she sought help from the local government and police. This led to more serious threats. She stated that the loan sharks then demolished her house. She said that she could not find a safe place to live and had no choice but to escape to Australia.
She claimed to fear harm from the moneylenders and that police could not protect her.
Communications with the Tribunal
The applicant was invited to appear before the Tribunal on 24 March 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The applicant arrived late to the scheduled telephone hearing, and for some time said that she was unable to unmute her telephone. She also did not turn on her video although it was explained to her how to do this. After some time refusing to turn on her video, the Tribunal informed her that it would need to adjourn the hearing to hold an in-person hearing. She then turned on her video. To assist with any technological problems, the Tribunal adjourned the hearing until 6 June 2022 so a hearing could be held in person.
On Friday 3 June 2022 at 12.41 the Tribunal received the following email from the applicant, ‘Sorry I can’t attend the hearing on 6/6/2022 as I am in Melbourne now’.
As the applicant had advised that she was in Melbourne, the Tribunal made arrangements for the hearing to be held in the Melbourne offices at 9.30am on 6 June 2022. In a letter to the applicant on 3 June 2022 the Tribunal noted that she had not advised them of a change of residence to Melbourne. The Tribunal invited her to appear at 9.30am in the Melbourne offices. The Tribunal noted that if she did not wish to attend the hearing, the Tribunal could determine the matter without a hearing. She was asked to confirm by 4.30pm on 3 June 2022 if she wished to attend the hearing and was advised that if no response was received, the Tribunal would take that as confirmation that she consented to the matter being heard without a hearing, given her email of 3 June 2022. She was also advised that if she did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear before the Tribunal. She was also advised that the hearing date would only be changed for good reason.
On 3 June 2022 at 8.40pm, the applicant emailed the Tribunal. She said, ‘I’m very sorry, I just saw your email. I have a cold due to the weather. I’m worried that I won’t be able to attend the hearing next Monday. The judge forgives me. I like living here, the freedom here, and the people here. Due to the epidemic The reason is that I don’t have a job or money to survive. Now that the epidemic is over, I want to find a job and earn money to survive. If I don’t have a visa, I can’t find a job. I really can’t live anymore. I hope the judge can Thank you so much for giving me the opportunity to stay.’
At 9am on Monday 6 June 2022 the Tribunal emailed the applicant as follows, ‘It is unclear from your email if you wish the Tribunal to decide the matter without a hearing and for the Tribunal to make a decision based on the information provided to the Department and the submissions in your email of today’s date. Please confirm by return email to the Tribunal if you wish the Tribunal to make a decision on the papers without a hearing. Alternatively, if you are requesting an adjournment of the hearing, please provide a doctor’s certificate today setting out the date of consultations, the diagnosis, the medical symptoms which explain why you cannot attend the hearing, and when you will be able to attend. The doctor should be available for a telephone call from the Tribunal. Without such a certificate setting out all these details and being able to speak to the doctor, the Tribunal will be unable to grant an adjournment and will make the decision in this matter without a hearing. Please confirm by return email to the Tribunal today if you wish the Tribunal to make a decision on the papers without a hearing. Please call () if you have any questions.’
The applicant did not appear at the scheduled time and place at the hearing on 6 June 2022. On 6 June 2022 the Tribunal received the following email, ‘Dear officer yes, I will not participate in this hearing. I hope the judge can grant me an extension of my visa, so that I can live here and live happily. I like living here, the freedom here, and the people here. Due to the epidemic, I have no job and no money to survive. Now that the epidemic is over, I want to find a job and earn money to survive. Without a visa, I can’t find a job. I really can’t live anymore. Hope The judge gave me the opportunity to stay, thank you very much’.
The Tribunal is satisfied on the basis of this correspondence that the applicant has consented to determination of the matter without a hearing. As the applicant has consented to making a decision without a hearing, and she did not attend the hearing, the Tribunal has decided to make a decision on the papers pursuant to s 425(2)(b) of the Act.
DECISION OF THE DEPARTMENT
The delegate of the Department was not satisfied that the applicant feared persecution for one of the reasons set out in the legislation. The delegate was also satisfied that the applicant could obtain effective protection from the authorities in China such that there would not be a real risk of significant harm.
FINDINGS AND REASONS OF THIS TRIBUNAL
Key issues for determination
In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:
· Whether the incidents described by the applicant took place in China (findings of fact).
· Whether there is a real chance of serious harm or a real risk of significant harm.
These issues and other threshold issues are discussed below.
Nationality
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant has a passport from China issued in 2012. The Tribunal is satisfied on the basis of her passport and evidence to the Department that the applicant is a national of China, and that China is the receiving country for the purposes of the legislation.
Findings of fact
Taking a reasonable approach to fact-finding
When assessing claims the Tribunal must make findings of fact in relation to the claims made. Asylum cases present particular complexities in regard to fact-finding. Applicants may have difficulties presenting evidence due to experiences in their home countries, as expressed by the Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
Assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[6] The Tribunal is conscious and mindful that there may be factors that consciously or otherwise influence decisions.[7] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia[8] in ensuring that the process of credibility assessment is reflective and fair. As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[6] Fox v Percy (2003) 214 CLR 118.
[7] H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9; Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’
[8] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
Did the incidents in China described by the applicant take place?
The Tribunal has taken this ‘reasonable approach’ to fact-finding. The applicant was invited to a hearing, which was arranged in a location of her choice. In assessing the evidence, the Tribunal acknowledges that there may be factors such as language and culture or educational level which may impact on the evidence presented.
The Tribunal accepts that the applicant comes from Sishui in Shandong province, that she has no religion and that she was married in 2002. The Tribunal accepts that she has a daughter and other relatives in China. These are facts about her life which there would be no reason to falsify.

However, the Tribunal is not satisfied on the bare evidence provided that the applicant owned a [store] in Jining from 2016 to 2018 or that she went bankrupt and had to borrow money from an underground bank with an ‘unreasonably high’ interest rate. The Tribunal is not satisfied that she was unable to repay the loan and as a result her family was continually harassed and threatened by the bank and a criminal syndicate. The Tribunal is not satisfied that more serious threats took place after she reported the matter to the police, and that the loan sharks then demolished her house. The Tribunal is not required to accept uncritically any and all of the allegations made by an applicant (Randhawa v MILGEA (1994) 52 FCR 437). In this case, the applicant did not appear at a Tribunal hearing or provide written submissions even though she was provided with a copy of the Department decision which provided reasons for refusal of the visa. The evidence provided by the applicant about the reasons for claiming protection is brief and does not contain important details, such as how she funded her business, the nature of the business, turnover and employees, efforts to locate legitimate funding, details of the lenders, timing and terms of the loan, the amount not paid and the circumstances and nature of the harassment and police involvement. The Tribunal has not been provided with documentary evidence such as business licences, loan agreements, police reports, photographs or receipts to corroborate the claims made.
Without additional evidence or appearing at the Tribunal hearing, the Tribunal was unable to explore pertinent issues with her such as:
·How she went about opening a shop
·The dates she opened and closed her shop
·How she funded the shop
·Whether her family was involved
·Where the shop was located
·What rent and outgoings she paid on the shop
·How many employees she had
·What the turnover was for the shop
·Why and when she went bankrupt
·What efforts she made to borrow from legitimate lenders
·Who she borrowed from and how she located these funders
·Why she visited [Country 1] in 2016 and 2017
·What the terms of the loan were
·How much she repaid and how much she owes
·The nature of the alleged threats and harassment to her and her family
·The circumstances of the demolition of the house
·The circumstances of her reporting to police and local government
·Where she lived prior to coming to Australia
·Why the lenders would still pursue her
·Why she could not seek police protection
·Why she could not relocate elsewhere and avoid harm.
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act.
Without the information and documents referred to above, the Tribunal cannot be satisfied based on the simple assertions and statements in her application, that she owned a shop, went bankrupt, borrowed from illegal moneylenders, was threatened or harassed by the moneylenders or that they demolished her house.
The refugee criterion
Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?
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 themself of the protection of that country.[9]
[9] Section 5H(1) of the Act.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     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 above; and
·     the real chance of persecution relates to all areas of a receiving country.
Does the applicant fear being persecuted for one of the stated reasons?
Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons. This incorporates the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Convention.
The applicant must satisfy the Tribunal that all of the statutory elements are made out (Abebe v Commonwealth of Australia197 CLR 510). As referred to earlier, the mere fact that a person claims persecution for a particular reason does not establish the genuineness of the asserted fear.
The Tribunal is not satisfied that the applicant fears being persecuted for one of the stated reasons as the Tribunal is not satisfied that she owned a shop, went bankrupt, borrowed money or was harassed and threatened by moneylenders. No other reason has been identified by the applicant. In her communications with the Tribunal the applicant requested that a visa be granted so that she could work in Australia as she could not work without a visa, and said that she could not live without a visa. She stated that she likes the freedom in Australia. This expression of a desire to work and live in Australia does not equate with a fear of persecution in her home country. In her communications with the Tribunal, the applicant did not emphasise a fear of returning to China for reasons of persecution by the lenders, which would have been reasonably expected if she had such a fear.
Is there a real chance of serious harm if the applicant were to return to her home country?
For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act adds an objective element to that concept;[10] not only must a person fear persecution, there must be a prospect of that fear being realised.
[10] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <UNHCR - Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees>.
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[11]
[11] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.
In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’. The fact that an applicant claims that they have a well-founded fear of persecution does not establish that such a well-founded fear exists, and the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal is not satisfied that there is a real chance of serious harm from moneylenders, as the Tribunal is not satisfied, for reasons provided earlier, that the applicant owned a shop, borrowed from illegal moneylenders or was threatened or harmed by them for failing to repay the loans. The Tribunal is not satisfied therefore that there is a real chance in the sense of a substantial, non-remote chance, of serious harm, were the applicant to return to China in the reasonably foreseeable future.
Furthermore, even if the Tribunal were wrong on this and the applicant was in fact harassed by moneylenders, which the Tribunal does not accept, country sources indicate that effective state protection is available. The Department in its decision referred to a range of country sources which suggest that the government of China has cracked down on illegal moneylenders.[12] The Department of Foreign Affairs and Trade in its 2021 Report concludes that state protection is available.[13] DFAT considers that victims of loan sharks have a plausible fear of violence but that overall the risk is low. Usurious loans are prohibited under China’s Civil Code, which came into force on 1 January 2021 and there have been a number of large-scale and high-profile arrests of moneylenders. The Chinese Government claims that 41,000 suspects were detained in 2021, but it is not clear if this is only during the recent crackdown, or if it includes previous arrests.[14] Given these sources, even if the applicant had entered into an illegal money-lending arrangement, which the Tribunal does not accept, effective state protection would be available.
[12] For example, see Ren Qiuyu, Caixin Media, ‘ $527 Million Seized, 16200 arrested in loan shark crackdown’, 26 February 2019.
[13] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: China’, December 2021.
[14] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: China’, December 2021.
Findings on refugee criterion
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation were she to return to China in the reasonably foreseeable future.
Does the applicant meet the complementary protection criterion?
If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: ‘the complementary protection criterion’.
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Convention definition: MIAC v SZQRB [2013] FCAFC 33.
The Tribunal is not satisfied that the applicant owned a shop in China, that she went bankrupt and borrowed from illegal moneylenders, or that she suffered harm and harassment as a result. Reasons for this were provided earlier in the decision. The Tribunal has found that the applicant does not face a real chance of serious harm from moneylenders or criminal syndicates, for reasons set out earlier. For the same reasons, on the basis of the decision in MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation were the applicant to be removed from Australia to China.
The applicant has also claimed that she wishes to remain in Australia so that she can work otherwise she might not be able to live. This expression of a desire to work in Australia does not correlate with a real risk of significant harm in her home country.
The Tribunal is not satisfied therefore 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 of significant harm.
CONCLUDING PARAGRAPHS
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.
Jane Marquard
Member

ATTACHMENT A – 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.
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36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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[2022] AATA 2502

21 June 2022

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

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Consent

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