1916395 (Refugee)

1916395 (Refugee) [2024] AATA 4463 (10 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1916395
COUNTRY OF REFERENCE:                   China
MEMBER:Clyde Cosentino
DATE:10 October 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 October 2024 at 4:24pm
CATCHWORDS
REFGUEE – protection visa – China – fear of harm from finance company – borrowed for business using house as collateral – economic slump and unable to repay – threatened, attacked and injured, and house occupied – inaction by police and collusion by local authorities – vague claims and no documentary or medical evidence – contradictory evidence about financial support from family and friends – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulation 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v MIEA (1985) 6 FCR 155
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 13 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 25 September 2018. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
The applicant appeared before the Tribunal on 5 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the department), 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
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
s 36(2)(aa) of the Act. 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.[1] For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving country
In the department decision provided by the applicant to the Tribunal, the delegate found that the applicant provided sufficient evidence of his identity which was consistent with his narrative and biometrics. The delegate accepted that the applicant was a citizen of China and there is no information before the Tribunal to the contrary. The Tribunal finds, therefore, that the applicant is a citizen of China, and that China is his receiving country for the purposes of assessing his claims for protection.
Evidence before the delegate
The applicant provided the following information in his protection visa application.
He has a Chinese passport. He arrived in Australia on a visitor visa [in] August 2018.
He claims that the reason why he left China was because he had planned to create his own business in 2014. He therefore borrowed money from a financial company practicing usury or money lender to support his business. However, because the Chinese economy was not good between 2014 to 2017, he lost lots of money in his business. He did not have the ability to pay back the large loans. The financial company practicing usury (money lender) began to ask for the money to be paid back and threatened the applicant in many ways. He was hit several times and went to hospital twice. He has asked the Australian government to help to keep him safe.
He claims that he went to hospital twice over a three-month period. On the first occasion he went to hospital, he suffered a fractured rib. On the second occasion he went to hospital, he suffered a fractured leg. He claims that the money lenders are dangerous and that his life is in danger.
He claims that he sought help from the police, but they did not help him. He claims that the police fined the money lenders about 5000RMB but did not jail them because the dispute was a civil dispute. The applicant claims that the police cannot help him. He claims that the authorities cannot protect him.
He claims that he tried to move to another part of the country but does not state where he moved to. He claims that wherever he moves to, the money lenders will find him because they have his details.
He claims that he cannot relocate to another part of the country.
The applicant does not provide any further information or evidence in support of his claims.
Tribunal hearing
At the start of the hearing, the Tribunal explained to the applicant the meaning of refugee and complimentary protection as it is understood under Australian law.
The Tribunal asked whether the applicant had anything to give to the Tribunal in support of his claims. The applicant said that he did not.
The Tribunal asked if he recalled the application for protection that he lodged with the department on 25 September 2018. He said he did. The Tribunal then asked whether everything in that application was true and correct. He said yes. The Tribunal asked whether these were the only claims he wished to discuss at the hearing. He said yes.
The applicant then answered questions asked of him about his time in his home area. He stated that he lived in [Location], Jiangsu Province, China. He stated that the town that he lived in did not have too many people at the time. The closest city that he lived near to was [City]. He stated that it would take more than an hour by car to get there from his town. The closest largest city near his town was Shanghai city. It would take about half a day by car to get there from his town. He had lived in his town since birth. He stated that he has not lived elsewhere in China.
His mother and father live in the region where he used to live. When he was still in China, he did not live with them. He lived in another town. However, their village was close to his town. He would visit his parents a lot while he was in China. He would visit them around once per week while he lived there. The applicant stated that in China, family live in the same region. Areas either evolve into villages or towns. But family live in the same region. The applicant lived in a town and his parents lived in a village.
The applicant stated that he had been living with his wife in [Location]. They have one child together. His wife is living in a different house that he previously lived in. She is renting in a different house to where they were originally living in but still living in [Location]. The applicant stays in close contact with his wife while he is in Australia. He speaks to her regularly.
The applicant stated that he completed both primary and secondary schooling in China.
The Tribunal asked the applicant why he applied for a protection visa in Australia.
The applicant stated that the finance company and the local authorities were in a corrupt relationship. At that time, the finance company and the local government officials were engaged in corrupt relationships. He stated that this led to the bankruptcy of his company. Because of this collusion, he had to go to Australia. Because of this collusion, he was threatened. He could not continue carrying on his business in China and he could not live there. He stated that everyone knows about this. He stated that, as everyone knows, there is no human rights or equality in China. As a result of this, he had to escape from China and seek protection.
He stated that, in 2014 he founded a company. In 2015 to 2017, the Chinese economy deteriorated. At that time, he decided to obtain finance from a finance company in that area to try and finance his company. On the outside, it looked like a legal finance company which gave out loans. But the interest rates were like an illegal loan shark who gave out loans. The applicant stated that, even when he obtained a loan, he could not revive his company. He had to pay back the loan at some point. He knew that he had to return the money once he took out a loan. He secured the loan by using his house as collateral. This was the only way he could take out a loan. The finance company made a very low estimate of the value of his property against the loan. He tried to negotiate with them and tried to return the debt owed based on the local market value of his house. But they rejected his proposal. They then threatened him. This was the darkest time in his life.
He was hit and attacked. His ribs were broken on one occasion and his calf bone was also broken. His house was also occupied by the finance company. He and his wife then rented a home. They lived a low life then. They also tried to seek assistance from the police. Their plea was rejected. The police did not even let them set out their case at the police station. Later, they found out that this finance company had a relationship with the police. The police failed to look after the applicant and his family. It refused to help them with economic disputes. He had nowhere to make his complaint. This made him really disappointed with local policies in China. He experienced inequality in China. Because of this, his company suffered. Later, this led to the bankruptcy of his company.
The Tribunal indicated that he had previously stated that the bankruptcy occurred during the downturn of the Chinese economy and not because of local corruption or collusion between the finance company and local authorities. The applicant stated that he did not say this. He stated that it occurred because the finance company took his house as collateral for the loan in collusion with the local government.
The Tribunal asked when he took out the loan. The applicant stated that in 2014 he founded the company. He then took out the loan. In 2015 to 2017 he had difficulty with his company. The loan he took out was more than 1,000,000 RMB but less than 2,000,000 RMB. He stated that it was a large loan at that time. The Tribunal asked whether he was aware of the financial risk in taking out such a large loan. He stated that the company he set up at that time was quite lucrative in 2014. However, it was not doing well between 2015 to 2017 because of the economy slump. He stated that the economy was floundering, and he was trying to work out if the loan would revive the company.
The Tribunal indicated that, on his evidence, the company came into its own problems, that he took out a loan to help revive the company, that the economy worsened resulting in his company going in bankruptcy. The applicant did not agree with this. He stated that it was doing quite well. The Tribunal indicated that he had claimed that from 2015 to 2017, the company spiralled downwards because the economy declined, and he needed to prop up the company with a loan which he took out. The applicant stated that, in 2014 he started the company and then in 2015 the company did not do well. It was then that he decided to take out the loan. He took out one large loan in 2015.
The Tribunal asked whether there were any documents involved in taking out the loan. He stated there was not. The finance company just looked at the property certificate and then took his asset as collateral. The Tribunal indicated that he had stated that the loan company was a legal company. The applicant stated that the finance company also practiced usury. On the outside it looked legal, but it did not engage in paperwork or documents. The Tribunal asked what they valued his house at. He replied that they valued his house to be RMB 800,000 at the time. He stated that he could not repay the debt, so the finance company occupied his house. The finance company took the house from him in 2017.
The Tribunal asked whether he had any money at all before coming to Australia. The applicant made it clear that he had nothing at all. He had no money left. The Tribunal asked where he and his family had to live when they repossessed the house. He stated that they were homeless and lived on the streets. They were threatened. He stated that they were on the streets for one or two months before they started to rent.
The Tribunal asked how they started to rent if they had no money. The applicant stated that they had to borrow money from relatives and other family members. The Tribunal asked whether their relatives were willing to pay for rent and food for them and were they willing to pay for anything else. The applicant stated that they only paid for part of their living expenses. It was only temporary. There was no way they could support them for their whole life.
The Tribunal asked how much he paid the lawyer to assist with his application. The applicant stated that, at that time, he paid one thousand (1000) Australian dollars. The Tribunal asked where he found this money to pay the lawyer. He stated that this money was from what he earned from work in Brisbane. The Tribunal confirmed that he had applied for a protection visa on 25 September 2018 and that his application stated that he arrived in Australia [in] August 2018 on a visitor visa. The Tribunal indicated that he had applied for a protection visa 28 days after arriving in Australia. The Tribunal might have concerns with his evidence that he paid the lawyer with money he earned in Australia given that he only applied 28 days from arriving in Australia, that he arrived on a visitor visa and that it would have been near impossible for him to work on a visitor visa. It might have concerns that he paid the lawyer from money he earned in Australia. The applicant stated that, when he arrived in Australia, he needed to make a protection visa application. He stated that he asked the lawyer whether he could work to get that money and the lawyer said yes. The Tribunal indicated that this might not be credible given that he had asked an unknown lawyer to not accept payment for completing a protection visa application until after the applicant started working and the lawyer trusted him. The applicant stated that his safety was his concern and he needed to apply for protection.
The Tribunal asked how he paid for his airfare and his visa to come to Australia after he has provided evidence that he was living on the streets and had no money at the time. The applicant stated that the money was put together by his friends and family members. They told him that he had to go to Australia which was a very humane country which cares about human rights.
The Tribunal indicated that it might appear contradictory that his relatives would pay for his airfare and visa when he had provided oral evidence at the hearing that they only paid part expenses for his rent because they could not support him for the rest of his life. The applicant stated that, in China, family and friends care about family. They all supported him.
The Tribunal asked what physical harm he experienced relating to non-payment of his loan. The applicant stated that he had told the Tribunal what had happened before. Because the finance company colluded with the government, he decided to come to Australia to seek protection.
The Tribunal again asked what physical harm he experienced while in China. The applicant stated that his “calf” bone was broken, and he received fractured ribs. The Tribunal asked when these incidents happened. He stated after he took out the loan and after his house was occupied.
The Tribunal asked if these assaults occurred separately or at the same time. The applicant stated that there was a short duration between both incidents.
The Tribunal asked when the first incident occurred. He stated around 2017. He stated that second incident occurred not long after that. They broke his leg in the second incident.
The applicant stated that the first incident occurred in his town in his house around midday. He stated that his house had been taken as collateral. It happened there. He stated that three people came to his house. They broke his ribs. He tried to reason with them about the value of the property. They rejected his reasoning that the value of his house should be more. A fight then ensued. The Tribunal indicated that it might appear highly unusual that he was attacked three years after the loan was given to him, considering that he was struggling throughout that time to pay it back. The applicant stated that they had agreed to the duration of paying back the loan.

The Tribunal asked where he went after they broke his ribs in the first incident. He stated that he was on the streets. They then had to rent a house. The Tribunal asked whether he went to hospital. He stated that he did. The Tribunal asked whether he went to the police. He stated that he tried to report it to the police but that the police refused to handle this matter.
The Tribunal asked where the second attack occurred. The applicant stated “at the crossroad”. There was only one person involved in this attack.
The Tribunal asked whether he went to hospital after the attack. The applicant stated that, because he had been attacked, he hid from his attackers until he came to Australia. The Tribunal asked again whether he went to hospital after the attack on the second occasion. He stated that he did not. The Tribunal indicated that this might be inconsistent with what he had written in his application. In his application he stated that he went to hospital after the second attack on him. The applicant responded that a hospital is different to a clinic. He went to a clinic and not to a hospital. The clinic is an inhouse organisation where one receives treatment.
The Tribunal indicated that he did not state in his initial application that he hid from his attackers when he has raised that now. The applicant stated that he tried to provide a narrative at the time of what happened, but it was not as comprehensive as it should be.
The Tribunal indicated that he had provided evidence at the hearing that he had the assistance of a lawyer in completing the application. However, even with assistance of a lawyer, he had not provided any medical evidence to support his claims that he had been seriously harmed. There was no medical evidence to show that he had broken ribs or a broken leg. The applicant stated that he mentioned it to his lawyer, but his lawyer did not do anything about this.
The Tribunal indicated again that there was no evidence at all that has been provided about his broken bones. The Tribunal indicated that the applicant had significant time to provide any medical reports in support of his claims. The Tribunal indicated that this lack of reports might go to the credibility of his claims. The applicant stated that he told the lawyer that he entered Australia to escape what happened in China. The lawyer then arranged the documents and information on his behalf. The applicant stated that he did not ask for medical reports.
The Tribunal indicated that the application might appear to be vague and lacking in detail at the time. The Tribunal noted that he had stated that he had claimed that he escaped China fearing harm. It might be expected that there would be more detail and circumstances given in the application at the time. The applicant stated that the lawyer did not mention all the details he had asked to be put in at that time.
The Tribunal indicated that at the hearing he stated that he hid from his attackers (after the second attack) until he came to Australia. This was not mentioned in the protection visa application. This lack of information might go to the credibility of his claims. The applicant stated that he has come to know Australia as a democratic country where human rights is accepted. This is totally different from China. This is why he escaped China.
The Tribunal indicated that he had provided evidence at the hearing that, after he was attacked, the police did nothing at all about those attacks. The applicant stated that the police did not help him at all. The Tribunal queried him again that the police did not help him at all after the attacks nor did they question him about the finance company or take on the finance company or do anything to the finance company by way of prosecution. The applicant confirmed that this statement was correct. The applicant confirmed that the police did nothing to the finance company and that nothing happened to the finance company. He does not know what happened after he reported these matters. He stated that he later found out that the person in charge of the finance company was close to the police. They refused to handle the matter. They had a very strong network.
The Tribunal indicated that the applicant’s evidence at the hearing appeared to be significantly inconsistent with the evidence he provided in his protection visa application which stated that that police actually fined the money lenders 5000RMB but did not jail them because the dispute was a civil dispute. This inconsistency might go to the credibility of his claims. The applicant stated that there was never any fine involved here because they have a close relationship with one another. There are people who are powerful in the police force. He stated that the police are like staff working for the finance company.
The Tribunal then put certain country information to the applicant for his comments.
The Tribunal indicated that a recent Department of Foreign Affairs (DFAT) report indicated that some protection is available to debtors. ‘Usurious loans’ are prohibited under China’s Civil Code, which came into force 1 January 2021. 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. Loan shark operations may be large-scale, but police operations are also large scale. The Chinese Government claims that 41,000 suspects have been detained in 2021. 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.[2]
[2] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, pp. 30-31
The applicant stated that, because he arrived in 2018, he would not know what happened back in China in 2021.
The Tribunal indicated that state media reported in July 2022 that the broader campaign against gang-related crime between 2018 and 2021 resulted in the indictment of 230,000 individuals ‘engaged in mafia-like gangs and other crimes,’ in addition to 2,987 of their ‘protectors.’[3] In February 2023, state media further reported that 14,000 people were prosecuted for organised crime in 2022, as guided by the newly implemented Anti-Organized Crime Law.[4] The Tribunal indicated that police generally have the capacity to deter and investigate crimes.
[3] 'China reaffirms determination to wipe out mafia gangsters, protectors', Zhang Changyue, Global Times, 18 July 2022
[4] 'Fewer people prosecuted over organized crimes', Yang Zekun, China Daily, 9 February 2023, 20230719154438; 'Battle against organized crime ongoing', China Daily, 10 February 2023,
The applicant stated that they catch all the big criminals. It is impossible to catch the smaller criminals under them.
The Tribunal indicated that there is no information to suggest that failed asylum seekers will be prosecuted in China. The applicant did not agree with this. He stated that he would say that it is impossible and that he would be prosecuted.
The Tribunal asked whether there was anything else that he wanted to say in support of his claims. The applicant stated that he had lived in Australia for 6 years. He has enjoyed the culture and harmonious environment here. He has fallen deeply in love with Australia. He implored the Tribunal to consider his case carefully and to consider his application for a protection visa. He wanted to continue to live his life in Australia peacefully and in a safe way. He wished to have a new life here.
Analysis, reasons and findings
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.[5] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[6]
[5] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
[6] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
Having considered all the evidence before it, and in its entirety, the Tribunal does not find the applicant to be credible in his claims for the reasons given below.
The applicant made it clear at the hearing that he recalled the claims made in his protection visa application, that he was assisted by a lawyer (who he paid a retainer to) who helped him complete the application and putting together his claims with the applciant, that all the claims made in that application were true and correct and that they were the only claims that he wished to raise at the hearing.
On the evidence before it, the Tribunal has significant concerns about the credibility of the applicant’s claims which are that he borrowed money from a financial company practicing usury to financially support his business (which operated illegally and threateningly towards the applicant), that his business became bankrupt as a result of pressure put on him to repay the loans, that the local authorities and the financial company practicing usury were in a corrupt relationship, that the applicant did not have the ability to pay back the loan which resulted in the applicant having a rib/s broken from a first assault and a leg fractured/broken from a second assault, that he went to hospital two times as a result of being assaulted, that he sought help from the police who did nothing further to prosecute the claimed offenders, that the financial company practicing usury has details of the applicant and can find him anywhere, that the applicant and his family have lost their home to this financial company practicing usury, that they had to live on the streets for a period of time and that family and relatives came together to buy a ticket and a visa for the applicant to come to Australia and that the applicant escaped China because of fear for his safety.
The Tribunal has considered all the evidence in its entirety and has given particular consideration to his written claims (which he stated were true and correct at the hearing and which he took responsibility for when completing his application) and his oral evidence at the hearing. The Tribunal has assessed that the contradictions and inconsistencies of evidence that have arisen between his written claims and oral evidence (as well as internal inconsistencies of evidence which arose at the hearing, as well as new claims raised at the hearing) as being material to the applicant’s claims overall and therefore going to the credibility of his claims.
Firstly, in his written claims, he stated that, in wanting to create his own business in 2014, he borrowed money from a financial company practicing usury to support his business. However, as a result of the Chinese economy not being “too good” between 2014 and 2017, he “lost lots of money because of his business”. As a result of this loss of money in his business, the financial company practicing usury began asking for the money to be returned and started to threaten the applicant. In the applicant’s oral evidence at the hearing, he stated that it was the result of the collusion between the local authorities and the finance company that led to the bankruptcy of his business, and not the economy. He then stated that, as a result of this collusion, he was threatened and could not carry on his business and had to escape China. The Tribunal finds the contradiction of reasons given here as significant, as he has attempted to give first time evidence at the hearing that the whole reason for his business collapsing was because of the collusion between local government officials and the finance company. This was not the claim that he gave in his application, where he was assisted by a lawyer who had been paid a sizable retainer by the applicant to help him complete the application.
The Tribunal has considered the applicant’s response that the bankruptcy occurred because the finance company took his house as collateral for the loan and as a result of collusion with the local government. However, this does not explain his contradiction of claims between his written claims and his oral evidence at the hearing and embellishment of the claims at the hearing. Thus, in his written claims he makes it clear he is blaming the poor Chinese economy for his business collapse with his eventual inability to pay the loan off being the reason for the financial company practicing usury threatening him. At the hearing, he blames the illegal collision between the local authorities and the finance company as the direct result of his bankruptcy. The Tribunal finds this contradiction as significant and going to the credibility of his claim that he went bankrupt as a result of a loan taken out with a financial company practicing usury which was in collusion illegally with local authorities and which had threatened him with physical harm as a result of non-repayments.
Secondly, the applicant made significant claims in his application that he was seriously assaulted by persons operating illegally from the finance company, and that these injuries were so serious that he was left with a broken rib and a broken leg on two separate occasions. He claims in his application that he went to hospital on both occasions. In the applicant’s oral evidence at the hearing, he gave clear evidence at the outset that he did not attend the hospital after the second assault on him. When this contradiction was put to the applicant, he qualified his response by stating that he attended a clinic and not a hospital which was different.
The Tribunal has considered the evidence above and the response by the applicant but does not accept that this response reasonably answers the contradiction in the first place. The applicant made it clear that on the second attack he had his leg broken, which is a significant injury. If the applicant attended either a clinic or a hospital, the Tribunal considers it reasonable that the applicant would have provided this as evidence. Instead, he gave evidence that he hid from his attackers until he came to Australia. The Tribunal finds it implausible that a person with a broken leg would not have attended a hospital or clinic. In any event, the applicant made it clear when first questioned that he did not attend any hospital or clinic, only to subsequently state, after being queried on this, that he attended a clinic which is different to a hospital. The Tribunal finds this response as being contrived and made to enhance his claims.
Moreover, the Tribunal finds it significant that, considering the enormity of the claims that he had been assaulted by persons who were illegally associated with a finance company who were in collusion with local authorities and wanting to harm him that he did not provide the Tribunal with any medical reports of these injuries. The applicant has had more than reasonable time in Australia, and with the assistance of his lawyer, to obtain such medical reports. None were provided by the applicant. The applicant had every available opportunity and legal assistance in Australia to obtain these reports but has chosen not to do so. The Tribunal finds this lack of documentation, given how significant they are to his claim of previous harm, as going the credibility of his claims. The Tribunal does not accept his response that he left everything up to his lawyer. The applicant has had the opportunity throughout this entire process to provide such documents and has chosen not to do so. The Tribunal can only conclude from this that the applicant has not obtained these medical reports because the injuries he claimed were done to him by persons associated with a financial company practicing usury, did not actually occur.
Thirdly, the applicant states in his written claims that the police went and fined the finance company 5000 RMB only. At the hearing, the applicant gave oral evidence that the police did not nothing at all to the finance company nor did they prosecute them in any way. The Tribunal finds this inconsistency as being significant given that his application makes it clear that the police actually prosecuted the company by fining them 5000RMB while the applicant gave evidence that the police completely ignored him and did not prosecute the company or do anything to the finance company at all. The applicant then provided inconsistent evidence at the hearing that the police never fined the company at all as the police were in collusion with the person in charge of the financial company practicing usury. The Tribunal finds that there are significant inconsistencies between his written claims and oral evidence and his later response and the original claims. The Tribunal therefore finds this inconsistency to be significant and going to the credibility of his claim that the police (or local authorities) were in collusion with the finance company. It finds that this goes to the credibility of the claim that he ever went to the police to make a complaint about any assaults that happened to him.
Fourthly, at the hearing, the applicant gave new evidence that he hid from his attackers until he came to Australia. He provided new evidence that he and his family lived on the streets while his house was taken away. He provided new evidence that he was so poor that his relatives had to raise money to help him, in part, for the rent and food but could not afford to do anything else for him. This information was never given or provided in his application, where he was assisted by a lawyer, nor was it provided at any time leading up to the hearing. The Tribunal has considered the applicant’s responses that he gave the lawyer a narrative about his circumstances. The applicant made clear that he departed China for fear of his life. His evidence was he then sought out a lawyer and paid him a retainer to assist him with his claims. The Tribunal finds that it is reasonable that the applicant took responsibility of what was written in his application here. There is evidence of his ability and means to obtain the services of a lawyer to help him. The Tribunal finds that the applicant only blamed the lawyer after being queried about the inconsistencies. At no time leading up to the hearing, or at the beginning of the hearing when the Tribunal gave the applicant an opportunity to raise any issues about the application, did he raise this as a concern. The Tribunal does not accept on the evidence before it that the applicant did not control the narrative or claims that were being put into his application.
Fifthly, for the same reasons outlined above, the Tribunal finds the lack of detail and vagueness of his claims in his original application as going to the credibility of his claims. The Tribunal finds that the applicant was given enough time to provide specific claims to his lawyer who he paid a retainer to, to complete his application. No further details or evidence was given following that application, and nothing was provided leading up to the Tribunal hearing.
Sixthly, the applicant claims, as new evidence at the hearing, that his relatives assisted him with living expenses on a temporary basis because he was poor and without money as a result of his bankruptcy and his house being taken from them. He stated that there was no way that his relatives could support them. He stated that he had no money at all before coming to Australia. However, later in the hearing, the applicant gave evidence that he bought a ticket and a visa to come to Australia and paid a lawyer one thousand Australian dollars to help him put together a protection visa application not long after he arrived in Australia. The Tribunal does not accept as plausible, given the evidence, that the applicant can be completely poor as a result of a claimed bankruptcy and having his house taken away, only to then be able to afford an airfare to Australia, be able to pay for a visitor visa to come to Australia, and to then be able to pay one thousand dollars to a lawyer (soon after arriving in Australia) to help him put together a protection visa application.

The Tribunal has considered his response that his family came together to help him with the money needed to come to Australia and that his lawyer, a complete stranger to the applicant, allowed him to work to pay back the fees. The Tribunal does not accept that, on one hand, his relatives are barely able to support him in living expenses as claimed by him, only to then be able (and willing) to pay for his visa and airfare to Australia. The applicant has provided inconsistent evidence here. The Tribunal does not accept as a reasonable response that a lawyer, a complete stranger to the applicant, would be willing to forgo his fees to the applicant in the off chance the applicant will go away and work and pay off his retainer. In any event, the applicant gave evidence that the lawyer was willing to forgo his fees after the Tribunal pressed the applicant on the inconsistency of his evidence here. The Tribunal finds that the applicant has contrived this evidence to explain away this inconsistency put to him. Given the findings above, the Tribunal does not accept that the applicant was poor in any event because of any bankruptcy resulting from any loan that was taken out from a financial company practicing usury.
The Tribunal’s findings above that there was no loan made to the applicant from a financial company practicing usury, and that there were no assaults that occurred because of non-repayments of the loan that resulted in the applicant having to escape to Australia, is also consistent with independent country reports. Thus, as discussed with the applicant, DFAT advises that ‘Usurious loans’ are prohibited under China’s Civil Code, which came into force 1 January 2021. 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. Loan shark operations may be large-scale, but police operations are also large scale. The Chinese Government claims that 41,000 suspects have been detained in 2021. 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.[7]
[7] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, pp. 30-31
Moreover, state media reported in July 2022 that the broader campaign against gang-related crime between 2018 and 2021 resulted in the indictment of 230,000 individuals ‘engaged in mafia-like gangs and other crimes,’ in addition to 2,987 of their ‘protectors.’[8] In February 2023, state media further reported that 14,000 people were prosecuted for organised crime in 2022, as guided by the newly implemented Anti-Organized Crime Law.[9]
[8] 'China reaffirms determination to wipe out mafia gangsters, protectors', Zhang Changyue, Global Times, 18 July 2022
[9] 'Fewer people prosecuted over organized crimes', Yang Zekun, China Daily, 9 February 2023, 20230719154438; 'Battle against organized crime ongoing', China Daily, 10 February 2023,
The Tribunal finds on this country information that the police and local authorities of China are more than capable of addressing illegal loan shark operations in China. In any event, given that the Tribunal has found that the applicant’s claims are not credible at all, the Tribunal finds that the applicant is not a victim of loan sharks or from a financial company operating in collusion with local authorities. This country information does not support the applicant’s response that the police only catch the larger criminals and that it is impossible to catch the smaller ones.
The Tribunal has considered all the evidence as a whole and has made an assessment of the claims both individually and cumulatively. Given its findings above, the Tribunal finds that the applicant has not been credible at all about any of his claims.
Therefore, given its findings as a whole, and looking at the evidence before it, the Tribunal finds not credible the claims that he borrowed money from a financial company practicing usury to financially support his business, that his business became bankrupt as a result of pressure put on him to repay the loans, that the local authorities and the financial company practicing usury were in a corrupt relationship, that the applicant did not have the ability to pay back the loan which resulted in the applicant having a rib (or ribs) broken from a first assault and a leg fractured/broken from a second assault, that he went to hospital two times as a result of being assaulted, that he sought help from the police who did nothing further to prosecute the claimed offenders, that the financial company practicing usury has details of the applicant and can find him anywhere, that the applicant and his family have lost their home to this financial company, that they had to live on the streets for a period of time and that family and relatives came together to buy a ticket and a visa for the applicant to come to Australia, and that the applicant escaped China because of fear for his safety.
The Tribunal finds that the applicant has family support at home in China and can return home with the support of family and relatives. The Tribunal does not have any evidence before it that suggests in any way that the applicant cannot return to his family or relatives and live in [Location], Jiangsu Province.
The Tribunal finds on DFAT’s report below that there is no real chance that the applicant will suffer serious harm for reason of being a failed asylum seeker in Australia. The 2021 DFAT report on People’s Republic of China provides the following information on the treatment of returnees:
5.28 DFAT is not able to verify the treatment of failed asylum seekers returned to China but has no information to suggest that they are targeted by authorities merely for having sought asylum. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China and may know that applicants have applied for asylum. The consequences for those applicants are not clear.[10]
[10] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, p. 39.
There is no evidence before the Tribunal that failed asylum seekers are at risk from authorities for reason of being a failed asylum and finds the applicant’s fears in this regard that he will be persecuted for this reason as not well-founded, given the DFAT report provided.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
·The applicant is a citizen of China and a non-citizen in Australia.
·The applicant has no credible claims for protection under the refugee criterion or on complementary protection grounds set out in the applicable law.
The Tribunal finds on the evidence that, were he to be returned to China, there is no real chance that he would suffer serious harm from any financial company practicing usury or money lenders (illegal or otherwise) or corrupt authorities or police (given that the Tribunal has found that these claims are not credible at all) or being a failed asylum seeker or for any other reason, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
Given that the Tribunal has found the applicant’s claims (that he would suffer serious harm from any financial company practicing usury or money lenders (illegal or otherwise) or corrupt authorities or police not to credible at all, it finds that there do not exist substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee definition.[11] For the reasons given above the Tribunal found that there is no real chance that the applicant will suffer serious harm for one or more of the reasons mentioned in s 5J(1)(a) of the Act as it relates to failed asylum seeker claims. On the basis of the reasoning above as it relates to the real chance consideration of failed asylum seekers, the Tribunal has also considered the applicant’s claims against the real risk consideration. Having regard to the Tribunal’s findings above, the Tribunal does not accept 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 for being a failed asylum seeker.
[11] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013)per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Clyde Cosentino
Member

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

[2024] AATA 4463

10 October 2024

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