1916889 (Refugee)

Case [2025] ARTA 772

1916889 (Refugee) [2025] ARTA 772 (15 January 2025)

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  1916889

Tribunal:Senior Member Chelsea Lyford

Place:Perth

Date:15 January 2025

Corrigendum

Date of Corrigendum:  22 January 2025

Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following corrections are made to the statement of reasons for the decision:

1.The second line in paragraph 15 of the written statement of reasons for the decision is altered to read:

·     why she was invited to attend the hearing and the purpose of the hearing;

2.        Paragraph 78 of the written statement of reasons for the decision is altered to read:

In any event, based on the country information above, protection from an authority of China is available to the Applicant, such that there would not be a “real risk” that the Applicant will suffer “significant harm” (see [47] and [48] above), as defined in s 36(2A) of the Migration Act: s 36(2B)(b) of the Migration Act.

Senior Member Chelsea Lyford
Statement made on 22 January 2025 at 1:00pm

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  1916889

Tribunal:Senior Member Chelsea Lyford

Date:15 January 2025

Place:Perth

Decision:The Tribunal affirms the decision under review.

Senior Member Chelsea Lyford

Statement made on 15 January 2025 at 12:53pm

CATCHWORDS

REFUGEE – Protection Visa – China – fear of harm was based on repaying a debt – harmed by loan sharks – resist the government’s demolition of their rural family home – suitable state protection would be available to the applicant in China – not satisfied the applicant has a well-founded fear – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Migration Act 1958 (Cth), ss 5, 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379

Any references appearing in square brackets indicate that information has been

omitted from this decision pursuant to section 369 of the Migration Act 1958 and

. replaced with generic information

STATEMENT OF REASONS

INTRODUCTION

1.This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (Minister) on 25 June 2019 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Migration Act).

2.For the following reasons, the Tribunal affirms the decision under review.

BACKGROUND

Procedural background

3.The Applicant is a [age]-year-old female Chinese national who was born in [year] in Liaoning, a coastal province in Northeast China.

4.On[date] December 2018, the Applicant (then [age] years old) arrived in Australia by plane using her Chinese passport and as the holder of a Visitor FA-600 visa.

5.On 25 January 2019, the Applicant applied for a protection visa. The application was refused, and the Applicant notified of the delegate’s decision,…

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AGLC
1916889 (Refugee) [2025] ARTA 772
Case
[2025] ARTA 772
Decision Date

CaseChat Overview and Summary

The Applicant, a national of China, applied for a protection visa on the basis that they were a refugee or alternatively, they had a real risk of significant harm if returned to China. The application was refused by a delegate of the Minister, and the Applicant sought review of that decision by the Migration Review Tribunal. The Tribunal was required to decide whether the Applicant was a refugee or whether, as a necessary and foreseeable consequence of the Applicant being removed from Australia to China, there was a real risk that the Applicant would suffer significant harm. The Tribunal examined the evidence before it and found that the Applicant's claimed fear of harm was based on repaying a debt and not for any of the refugee protection reasons in s 5J()(a) of the Migration Act. The Tribunal was not satisfied that the Applicant was a refugee as defined in s 5H(1) of the Migration Act and was, therefore, not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under the refugee protection criterion in s 36(2)(a) of the Migration Act. Having considered then available country information concerning underground banks and illegal money lenders in China, the Tribunal found that the Applicant could obtain, from an authority of China, effective protection such that the Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk the Applicant would suffer significant harm. Therefore, the Applicant is not a person in respect of whom Australia has protection obligations under the complementary protection criterion in s 36(2)(aa) of the Migration Act.

The Tribunal affirmed the delegate’s decision. The Applicant’s claim was dismissed, and the Applicant’s application for review was refused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

At the commencement of the hearing, the Tribunal explained the following to the Applicant:· why he was invited to attend the hearing and the purpose of the hearing;· that the Tribunal is independent of the Department in making its decision on review; · the criterion in the Migration Act for refugee and complementary protection; · the evidence to be considered by the Tribunal;· how concerns the Tribunal has about any of the Applicant’s evidence will be addressed;· whether the Applicant could understand the interpreter and the role of the interpreter;· the confidentiality of the hearing; and · that the Applicant should ask the Tribunal for a break, as required.Evidence before the Tribunal No written submissions (either pre-hearing or post-hearing) were provided by the Applicant in support of his review application. Accordingly, the Tribunal proceeded to make its decision based on the following evidence: (i)the PVA and relevant supporting documents on the Department’s file that was before the delegate in making the Refusal Decision; and (ii)the oral evidence given by the Applicant at the hearing before the Tribunal on 9 December 2024. Where relevant, the above evidence is referred to in the Tribunal’s analysis below. ISSUES The issues to be decided by the Tribunal are whether the Applicant is a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because:(i)the Applicant is a “refugee,” as defined in s 5H(1) of the Migration Act, such that she satisfies the refugee protection criterion in s 36(2)(a) of the Migration Act; or, if not, (ii)the Tribunal has 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” (as defined in s 36(2A) of the Migration Act) such that she satisfies the complementary protection criterion in s 36(2)(aa) of the Migration Act.RELEVANT LAW All relevant sections of the Migration Act are extracted in the Attachment to this decision.Criteria for a protection visa The criteria for a protection visa are set out in s 36 of the Migration Act. An applicant for a protection visa must meet one of the alternative criteria in s 36(2)(a), s 32(2)(aa), s 32(2)(b) or s 32(2)(c) of the Migration Act. Receiving country For both refugee protection claims (under s 36(2)(a) of the Migration Act) and complementary protection claims (under s 36(2)(aa) of the Migration Act), the first issue to be determined by the Tribunal is the Applicant’s “receiving country”, as defined in s 5(1) of the Migration Act: Refugee Law Guidelines, reissued 27 November 2022 (RL Guidelines), at 3.3. “Receiving country” is defined, in relation to a non-citizen to mean:(i)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(ii)if the non-citizen has no country of nationality (i.e. is stateless), a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country: s 5(1) of the Migration Act.Refugee criterion – s 36(2)(a) of the Migration Act

Decision

Reasons for decision

A summary of the claims made by the Applicant in her PVA, which was before the delegate, is as follows:· She left China because her boyfriend owed a large sum of money to a loan shark;· She was the guarantor of the loan;· Her boyfriend was unable to pay back the loan;·Gangsters tried to force her and her boyfriend to kidnap children but, because they would not, the loan shark harmed and beat them;·She and her boyfriend tried to report the gangsters to the police who told them there was not enough evidence to arrest the gangsters;· She left China and went to Australia to get away from the gangsters;· If she returns to China, she will be beaten and harmed by the gangsters; · The police will be unable to protect her if she returns to China; and ·She is unable to relocate within China because the gangsters “may” be able to find her: PVA at pp 29 – 31.Delegate’s decision The Department of Home Affairs (Department) did not invite the Applicant to attend an interview to provide further information about her PVA but, instead, provided the Applicant with several opportunities to specify particulars and provide further information relating to her claims. However, the Applicant did not respond. Accordingly, the delegate proceeded to make the Refusal Decision on the PVA and other documents on the Department’s file. On 22 February 2019, the delegate of the Minister made the Refusal Decision. A summary of the delegate’s findings in the Refusal Decision is as follows:· The delegate found that the Applicant’s claimed fear of harm was based on repaying a debt and not for any of the refugee protection reasons in s 5J()(a) of the Migration Act. Accordingly, the delegate found that she was not satisfied that the Applicant is a “refugee”, as defined in s 5H(1) of the Migration Act and was, therefore, not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under the refugee protection criterion in s 36(2)(a) of the Migration Act; and· Having considered then available country information concerning underground banks and illegal money lenders in China, the delegate found that the Applicant could obtain, from an authority of China, effective protection such that the delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk the Applicant will suffer significant harm, as outlined in s 36(2B)(b) of the Migration Act. Therefore, the Applicant is not a person in respect of whom Australia has protection obligations under the complementary protection criterion in s 36(2)(aa) of the Migration Act.Hearing before the Tribunal The Applicant was invited to attend a hearing before the Tribunal, in person, on 9 December 2024 at 10.30am. On 5 November 2024, the Applicant filed a “Pre-hearing information form” which provided the following response to the questions “Do you want to give any more information about your claims for protection? Are there any other reasons why you are afraid to return to your home country”:In 2017, my parents owned a rural house. The government decided to carry out a demolition and reconstruction project and required us to relocate. During the demolition process, the government deployed a large number of personnel to enforce the relocation. As we refused to vacate the property, we were subjected to physical conflict with the officials. They threatened us, saying if we did not leave, they would make us “disappear.” Faced with such a large group of threatening individuals, we were overwhelmed by fear and helplessness.As a result of this incident, I felt that my safety and lives were in serious jeopardy. Given the lack of effective protection, I made the decision to leave my home and seek asylum in Australia. I am fully aware that returning to China would expose me to extreme risks, potentially even endangering my lives. Under these circumstances I am unable to return to my homeland, and I respectfully request that the court consider my special situation with understanding and support.I kindly ask the court to carefully evaluate our current predicament and provide necessary legal assistance and protection. We sincerely hope to find safety and refuge here, rather than being forced to return to an environment where our lives and safety are at risk.

Ratio Decidendi

Legal Principle Established

“Receiving country” is defined, in relation to a non-citizen to mean:(i)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(ii)if the non-citizen has no country of nationality (i.e. is stateless), a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country: s 5(1) of the Migration Act.Refugee criterion – s 36(2)(a) of the Migration Act As stated above, the refugee criterion for protection in s 36(2)(a) of the Migration Act is that that the Applicant for the protection visa is a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because the person is a “refugee”, as defined in s 5H(1) of the Migration Act.Meaning of “refugee” A person is a “refugee” (as defined in s 5H(1) of the Migration Act and for the purpose of the refugee protection criterion in s 36(2)(a) of the Migration Act) if:(i)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) of the Migration Act; and(ii)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) of the Migration Act. It follows that the definition of “refugee,” in s 5H(1) of the Migration Act, requires that a person has a “well-founded fear of persecution”, as defined in s 5J of the Migration Act.“Well-founded fear of persecution” A person has a “well-founded fear of persecution” if:(i)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion: s 5J(1)(a) of the Migration Act; and(ii)there is a “real chance” that, if the person is returned to the receiving country, the person would be persecuted for one or more of the refugee protection reasons in s 5J(1)(a) of the Migration Act: s 5J(1)(b) of the Migration Act; and(iii)the “real chance” of persecution relates to all areas of a receiving country: s 5J(1)(c) of the Migration Act. “Well-founded fear of persecution,” as defined in s 5J of the Migration Act, comprises both a subjective (emotional) and objective basis: RL Guidelines at 3.4 and 3.10 In assessing whether an applicant has a “well-founded fear of persecution,” the Tribunal should assess whether the Applicant, themselves, fears the persecution. This is because of the words in s 5J(1)(a) of the Migration Act, “the person fears being persecuted”, and in s 5J(4) of the Migration Act, “if a person fears persecution”, which implies that there is a subjective element to the “well-founded fear of persecution”: RL Guidelines at 3.10.1.