1915493 (Refugee)

1915493 (Refugee) [2024] AATA 2562 (12 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1915493

COUNTRY OF REFERENCE: China
MEMBER:Lilly Mojsin
DATE:12 June 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 June 2024 at 10:54am
CATCHWORDS
REFUGEE – protection visa – China – reporting unpaid wages – fear of loan shark – physical assault – criminal gangs – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 425, 499
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 5 May 2018. The delegate refused to grant the visa as the delegate was not satisfied the applicant would suffer serious or significant harm on return to China.
The applicant appealed that decision, attaching a copy of the Department decision to the review application.
On 24 April 2024, the applicant was notified that the Tribunal had considered the material before it but the Tribunal was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, at a hearing on 17 May 2024 at 1.00 pm. The applicant was advised that, if the applicant failed to attend the scheduled hearing and an adjournment was not granted, the Tribunal might make a decision on the review without taking any further action to allow, or enable, the applicant to appear before the Tribunal.
On 15 May 2024 the applicant requested that the Tribunal decide the application on the papers. The applicant did not attend the scheduled hearing.
As the Tribunal is satisfied that the applicant has consented to the Tribunal deciding the review without the applicant appearing before it, in accordance with s. 425(2)(b) the Tribunal proceeds to decide this application on the material before the Tribunal.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
In his Protection Visa Application the applicant claimed that
·he was employed at [Business 1] from 2010 and was promoted to a managerial position. after reporting his employer to the Labour Bureau for unpaid wages, he suffered persecution from his boss.
·in October 2016, his boss asked the applicant to manage a difficult project, which would require employees to work overtime to complete the proposal. The boss reportedly promised double pay and an annual bonus as incentives for the additional work.
·he worked for over 12 hours per day from October 2016 to December 2016 and despite feeling unwell and asking for a break, his boss reportedly became angry and threatened to withhold the overtime wages and bonus so he had no choice but to continue.
·when the applicant asked for the overtime wages and bonus to be paid, his boss at first cited cashflow issues with the company; however in January 2017 when the applicant approached the boss again as he had still not been paid, his boss became angry and verbally aggressive.
·he reported this issue to the Labour Bureau in February 2017 and shortly after this he was threatened by his boss and warned if he complained to the Labour Bureau again the applicant would not be paid any money and would be in trouble.
·following this threat the applicant became scared, so he borrowed [amount] RMB from a private money lender to cover his family’s daily living expenses.
·in March 2017 the applicant claims he went to the Labour Bureau again after his boss continued to ignore his requests for payment of his wages.
·soon after the applicant’s boss and some gangsters attacked him, and physically assaulted him. Despite calling the police for help, no action was taken. His boss, [named], warned the applicant if he quit his job he would not be paid any money. The gangsters continued to monitor him and beat him.
·he also heard that the gangsters were still looking for him, and the creditors of his private loan had announced their intention to “educate” him to repay this loan.
·he claims to fear harm from the gangsters and creditors if he returns to China
No further information was provided to the Tribunal.
Independent Evidence
The 2021 DFAT Country report on China states:
People who owe money to loan sharks
3.122 Usury has a long history in China. According to the South China Morning Post, ‘demand for private loans’ is strong today. This is due to small businesses in particular being unable to access enough credit from large banks. In modern times, loan sharks might be known by different names such as ‘private finance companies’ and are more likely to be active in poorer, rural areas.
3.123 Some protection is available to debtors. ‘Usurious loans’ are prohibited under China’s Civil Code, which came into force 1 January 2021, but the interest rate considered usurious is not defined in that legislation. The courts have capped interest rates at four times the official rate. A number of highly publicised violent crimes related to debt collection were discussed in the media in 2017 with police making arrests and people being convicted for serious crimes such as assault and sexual assault related to debt collection. DFAT is also aware of a 2018-20 crackdown by authorities on usury, which was highly public and which saw the prosecution of a large number of people.
3.124 Loan shark operations may be large-scale, but police operations are also large scale. In 2019, 253 suspects were arrested in a campaign against loan sharks in Lanzhou. The gang had over 1,300 mobile phone applications and websites to facilitate usurious moneylending. The Chinese Government claims that 41,000 suspects have been detained in 2021, but it is not clear if this is only during the recent crackdown, or if it includes previous arrests.
3.125 DFAT assesses that loan sharks are active in China, but assesses that state protection is available. DFAT considers that victims of loan sharks have a plausible fear of violence but that overall the risk is low.
STATE PROTECTION
Police
5.1 The Ministry of Public Security oversees the police force, which is organised into specialised police agencies and local, county, and provincial jurisdictions. These agencies often collectively and individually called the local ‘Public Security Bureau’ (PSB). The People’s Armed Police (PAP) is a paramilitary force organised under the People’s Liberation Army (PLA) responsible for internal security and stability (such as combatting riots and terrorism, but also domestic monitoring of perceived security threats), maritime security and support of the PLA. The PAP is also active in Xinjiang. Regular police generally do not carry firearms and gun crime is rare in China.
5.2 Police maintain public order and social stability, which are overriding priorities for the CCP. Loyalty to the Party is important among police ranks, as it is in all government positions. Police, including at lower levels, can be investigated for corruption (which is a threat to stability and Party legitimacy) and loyalty offences.
5.3 Police carry out day-to-day crime fighting activities and investigate crimes. Day-to-day crime rates are low in China but where crime does occur, DFAT understands that police investigate thoroughly and prosecute alleged criminals.
5.4 Police are subject to little oversight, having the ability to issue their own warrants without the involvement of a court (or ignoring regulations where this is required), for example. According to the US Department of State Human Rights Report, while investigations into police killings are often announced, the findings of those investigations are often not announced. DFAT is not able to verify this. Freedom House’s 2021 Freedom in the World report describes police impunity as ‘the norm’.
5.5 Police have access to enormous amounts of data and other evidence. Social media is monitored and an unprecedented number of closed-circuit television cameras have been rolled out during the COVID- 19 pandemic as part of efforts to control the virus.
REASONS AND FINDINGS
The applicant's identity has been accepted by the Department in his visa application. On the basis of his Chinese passport, I accept that the applicant is a national of the PRC and is not a national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than China. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that China is the applicant's “receiving country” for the purposes of s.36(2)(aa).
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Had the applicant been willing to attend a hearing, the Tribunal could have sought more detail from him regarding the events he claimed occurred in China and the reasons why he fears returning to China. The only information before the Tribunal are the brief assertions made by the applicant in his PV application that he was employed at [Business 1] from 2010 and after reporting his employer to the Labour Bureau for unpaid wages, he suffered persecution from his boss, was threatened with harm from gangsters and he borrowed money from loan sharks who all seek to harm him on his return to China.
Without further information from the applicant, I do not accept that the applicant worked for over 12 hours per day from October 2016 to December 2016 or that his boss threatened to withhold overtime wages and bonus and when the applicant asked for the overtime wages and bonus to be paid, his boss became angry and verbally aggressive so that the applicant reported this issue to the Labour Bureau in February 2017. I therefore do not accept that he was threatened by his boss and warned if he complained to the Labour Bureau again he would not be paid any money and would be in trouble or that in March 2017 the applicant went to the Labour Bureau.
There is no verifiable evidence before the Tribunal to support the claim that the applicant borrowed any money, so without further information from the applicant I do not accept that the applicant borrowed [amount] RMB from a private money lender to cover his family’s daily living expenses or that his boss continued to ignore his requests for payment of his wages. As the applicant did not attend the Tribunal hearing, without further information from the applicant, I do not accept that the applicant’s boss and some gangsters attacked him, and physically assaulted him or that despite calling the police for help, no action was taken. I also do not accept that his boss warned him if he quit his job he would not be paid any money, that gangsters continued to monitor him and beat him or that he heard that gangsters were still looking for him, and the creditors of his private loan had announced their intention to “educate” him to repay this loan.
I have considered the claims of the applicant individually and cumulatively. I am satisfied that the applicant did not suffer serious harm in China, prior to his departure to Australia.
I am required to consider whether there is a real chance the applicant will suffer serious harm for a refuge reason on his return to China, within a reasonably foreseeable future.
The applicant claims that he fears harm from the gangsters and creditors if he returns to China. I have found above that the applicant did not suffer serious harm in China therefore as the applicant did not attend the hearing and I have been unable to explore his claims with him, I am not satisfied there is a real chance that the applicant will suffer serious harm upon his return to China, for reasons of his race, religion, nationality, membership of a particular social group or political opinion, in the reasonably foreseeable future.
I am satisfied that the applicant does not have a profile that would cause him to be of any interest to the authorities or non-state agents, in the reasonably foreseeable future, if he returns to China.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
As stated above, I reject the applicants’ claims he has suffered persecution or any harm in China and I have found the applicant does not have a profile that would cause him to be of any interest to the authorities or non-state agents. Therefore, I do not accept that there is a real risk the applicant, an ethnic Han Chinese, will suffer significant harm on his return to China, within a reasonably foreseeable future.
I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicant will suffer significant harm ie. that there is a real risk that the applicant will be arbitrarily deprived of life, that the death penalty will be carried out on him, that he will be subjected to torture, cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment.
Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.
CONCLUSIONS
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Lilly Mojsin
Member

ANNEXURE A
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2562

12 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction