1916889 (Refugee)
[2025] ARTA 772
•15 January 2025
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 1:00pmDECISION 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 379Any 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, on 25 June 2019 (Refusal Decision).
6.On 6 February 2019, the Applicant was granted a bridging visa, because of her protection visa application (PVA).
7.On 26 June 2019, the Applicant applied to the Administrative Appeals Tribunal (AAT) for review of the Refusal Decision.
8.The AAT was abolished on 14 October 2024 and replaced with the Administrative Review Tribunal (ART), established by the Administrative Review Tribunal Act 2024 (ART Act). The Refusal Decision automatically transferred from the AAT to the ART, for review, at the commencement of ART: Part 5 of Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024.
Claims in protection visa application before the delegate
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.
The Applicant appeared before the Tribunal on 9 December 2024 at 10.30am, unrepresented, and gave evidence under oath. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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
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.
Whilst an applicant must hold a subjective fear of being persecuted, that subjective fear of persecution must be objectively “well-founded”: RL Guidelines at 3.10.
Meaning of “Real chance”
As stated above, under s 5J(1)(b) of the Migration Act the Tribunal must be satisfied that there is a “real chance” that, if returned to the receiving country, the Applicant would be persecuted for one or more of the refugee protection reasons in s 5J(1)(a) of the Migration Act.
Section 5J(1)(b) of the Migration Act requires the Tribunal to first consider whether there is a “real chance” of persecution in the Applicant’s “home region”, being where the applicant previously lived or other area to which the Applicant had similar or substantial ties, before considering anywhere else in their receiving country: SZRKY v Minister for Immigration and Citizenship [2013] FCA 352 at [24], SZQZN v Minister for Immigration and Citizenship [2012] FMCA 939 at [49] and RL Guidelines at 3.12.
The notion of “real chance” of persecution involves a threshold of the likelihood of an event occurring in the future and that likelihood is one that is considered in relation to the Applicant returning to the “receiving country,” as defined in s 5(1) of the Migration Act: RL Guidelines at 3.12.1.
“Real chance” is not defined in the Migration Act. However, in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 (Chan) the High Court, in considering the phrase “real chance”, stated:
· A real chance discounts what is remote and insubstantial: Chan at [407];
· A real chance is one that is not remote, regardless of whether it is less or more than 50%: Chan at [397] - [398]; and
· An applicant may have a “well-founded fear” of persecution even though there is only a 10% chance that they will be persecuted, however a far-fetched possibility of persecution must be excluded: Chan at [429] and RL Guidelines at 3.12.1.
A “real chance” is, therefore, not a possibility that is far-fetched and is not measured by a set percentage. A superficial statistical analysis without regard to the circumstances of the Applicant or circumstances of the case will be insufficient to draw a conclusion that there is no real chance of persecution: DZADQ v Minister for Immigration and Border Protection [2014] FCA 754 at [65] and RL Guidelines at 3.12.1.
That is, the “real chance” test is a forward-looking test which requires consideration of what may take place in the future, rather than what occurred in the past: DZADC v Minister for Immigration and Citizenship (No 2) [2012] FMCA 778 at [16]; SZSTZ v Minister for Immigration and Border Protection [2015] FCAA 92 and RL Guidelines at 3.12.2. This involves a “degree of speculation and weighing of reasonable possibilities”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at [18] and RL Guidelines at 3.12.2.
The High Court has said that while the future is not predictable, the degree of probability that an event will occur is often assessable: Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22 and RL Guidelines at 3.12.2. The assessment could be based on:
· past events and analysis of the conditions in which those events occurred;
· the likelihood of the introduction of new events that may decrease the likelihood of the past event occurring again; and
· an estimation of what event will give rise to the likelihood or not of an event recurring (this can be achieved through country information analysis): Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22 and RL Guidelines at 3.12.2.
If a person fears persecution for one or more of the five refugee protection reasons, in s 5J(1)(a) of the Migration Act;
(i)that reasons or those reasons must be the essential and significant reason for the persecution: s 5J(4)(a) of the Migration Act: see RL Guidelines at 3.10.2; and
(ii)the persecution must involve “serious harm” (within the meaning of s 5J(5) of the Migration Act) to the person: s 5J(4)(b) of the Migration Act; and
(iii)the persecution must involve systematic and discriminatory conduct: s 5J(4)(c) of the Migration Act.
Examples of “serious harm”
Examples of what constitute “serious harm” are set out in s 5J(5) of the Migration Act as follows:
· a threat to the person’s life or liberty;
· significant physical harassment of the person;
· significant physical ill-treatment of the person;
· significant economic hardship that threatens the person’s capacity to subsist
· denial of access to basic services, where denial threatens the persons’ capacity to subsist; or
· denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist: see RL Guidelines at 3.11.
Qualifications to “well-founded fear of persecution”
If the Tribunal determines that an applicant has a “well-founded fear of persecution,” it must nevertheless consider the following three qualifications before concluding they are a “refugee” under s 5H(1) of the Migration Act:
(i)whether the “real chance” of persecution relates to all areas of the receiving country: s 5J(1)(c) of the Migration Act (If “no”, the person does not have a “well-founded fear of persecution”);
(ii)whether “effective protection measures” (as defined in s 5LA of the Migrations Act) are available to the Applicant in the receiving country: s 5J(2) of the Migration Act (If “yes”, the person does not have a “well-founded fear of persecution”); and
(iii)whether the Applicant could take reasonable steps to modify their behaviour to avoid a real chance of persecution in the receiving country, other than certain modifications: s 5J(3) of the Migration Act (If “yes”, the person does not have a “well-founded fear of persecution”).
Complementary protection criterion – s 36(2)(aa) of the Migration Act
If an applicant does not meet the refugee protection criterion in s 36(2)(a) of the Migration Act, they may nevertheless meet the criteria for the grant of the visa on complementary protection grounds, in s 36(2)(aa) of the Migration Act, if they are a non-citizen in Australia in respect of whom the Tribunal is satisfied that Australia has protection obligations because the Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to the receiving country, there is a “real risk” that the non-citizen will suffer “significant harm”.
Once the “receiving country” (as defined in s 5(1) of the Migration Act) of a non-citizen is determined, the following three elements, in s 36(2)(aa) of the Migration Act, must be met for an applicant to be entitled to complementary protection:
(i) the Tribunal has substantial grounds for believing that;
(ii)as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country; and
(iii)there is a “real risk” the non-citizen will suffer “significant harm”: s 36(2)(aa) of the Migration Act.
Substantial grounds for believing
“Substantial grounds for believing” is not defined in the Migration Act. Factors relevant to determining whether there are substantial grounds for believing an applicant would be at a real risk (as a necessary and foreseeable consequence of removal) of suffering significant harm, if removed from Australia to the receiving country, may include:
· any evidence of past significant harm, or past activities giving rise to significant harm, including activities in Australia or third countries (i.e. countries other than the receiving country);
· any evidence of intention to target the Applicant by the receiving country (for example, the issuing of arrent warrants);
· the laws and practices of the receiving country; or
· the pattern and conduct shown by the receiving country in similar cases: Department of Home Affair’s Complementary Protection Guidelines (CP Guidelines) at 3.5.5.
Also relevant to the determination of whether there are substantial grounds for believing that an applicant faces significant harm on return to the receiving country will be the assessment of the Applicant’s credibility: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [31] and CP Guidelines at 3.5.5.
Necessary and foreseeable consequence
“Necessary and foreseeable consequence” is not defined in the Migration Act. However, it has been held that this phrase requires the Tribunal to be satisfied of a “real,” as opposed to speculative, casual, or temporal link between the Applicant’s removal from Australia and the likelihood or possibility of their facing a “real risk” of being subjected to significant harm. Significantly, the “necessary and foreseeable consequence” attaches to the “risk” of harm on return (rather than to harm itself): SZSKC v Minister for Immigration and Border Protection [2014] FCCA 938 at [71], CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60] and Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22 and CP Guidelines at 3.5.6.
“Real risk”
The “real risk” test for complementary protection applies the same standard as the “real chance” test applicable to the assessment of “well-founded fear” for the purposes of “refugee” claims: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ) and [342] (Flick J). Where claims overlap, the Tribunal may refer to and rely on its relevant findings on the refugee criterion (in s 36(2)(a) of the Migration Act) when assessing the complementary protection criterion (in s 36(2)(aa) of the Migration Act): DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [27] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities cited therein.
“Significant harm”
An applicant will suffer “significant harm” in the circumstances set out in s 36(2A) of the Migration Act. An applicant will only meet the complementary protection criteria if there are substantial grounds for believing they face a “real risk” (i.e. “real chance”) of one or more of the following types of “significant harm” if returned to the receiving country:
(i) they will be arbitrarily deprived of their life: s 36(2A)(a) of the Migration Act;
(ii) the death penalty will be carried out on them: s 36(2A)(b) of the Migration Act;
(iii) they will be subjected to torture: s 36(2A)(c) of the Migration Act;
(iv)they will be subjected to cruel or inhuman treatment or punishment: s 36(2A)(d) of the Migration Act; or
(v)they will be subjected to degrading treatment or punishment: s 36(2A)(e) of the Migration Act.
However, there is taken not to be a “real risk” (i.e. “real chance”) that an applicant will suffer significant harm in a country in the following circumstances set out in s 36(2B) of the Migration Act:
(i)where it would be reasonable for the Applicant to relocate to an area where there would not be a real risk of significant harm: s 36(2B)(a) of the Migration Act;
(ii)where the Applicant could obtain protection from an authority of the country such that there would not be a real risk of significant harm: s 36(2B)(b) of the Migration Act; and
(iii)where the risk is faced by population of the country generally and not by the Applicant personally: s 36(2B)(c) of the Migration Act.
Mandatory considerations
In accordance with Ministerial Direction No 84, made under s 499 of the Migration Act, the Tribunal has taken account:
(i) the RL Guidelines and CP Guidelines prepared by the Department; and
(ii)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 this decision.
Applicant’s responsibility in relation to protection claims
It is the responsibility of the Applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations (however arising) and to provide sufficient evidence to establish the claim: s 5AAA(1) and (2) of the Migration Act.
The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the Applicant’s claim or establish, or assist in establishing, the claim: s 5AAA(4) of the Migration Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
Personal background
The Applicant told the Tribunal that she grew up in a rural village outside Shenyang, the capital of Liaoning Province, with her parents and three older sisters. However, the Applicant did not spend much time with her older sisters as they married and moved out when she was young. The Applicant met her ex-boyfriend in around 2011, when she was still living with her parents in the rural village outside Shenyang. The Applicant’s father passed away in 2012 or 2013. In 2014, aged [age], the Applicant moved to the city of Shenyang where she initially lived with her ex-boyfriend.
Loan shark claim
The Applicant claims that in around March or April 2017, her ex-boyfriend borrowed a high interest loan from loan sharks and that she guaranteed the loan. The Tribunal asked the Applicant whether the loan and guarantee were documented and signed, and she said “yes.” However, when asked if she could provide a copy of the loan and/or guarantee documents, she said “no.” The Tribunal asked the Applicant why she agreed to be the guarantor of her now ex-boyfriend’s loan from the loan sharks and she did not reply. However, see paragraph 58 below.
The Applicant said that her ex-boyfriend had no ability to repay the loan and, consequently, the loan sharks came to their home and tried to coerce them into abducting children (in lieu of repaying the loan) and, when they refused, the loan sharks tied them up, beat them and threatened to kill them. The Tribunal asked the Applicant how frequently the loan sharks came to their home and threatened them in this manner, and she said that they came every day at first, but later weekly. The Applicant also said that her ex-boyfriend is an alcoholic and would “beat her up” (that she was subjected to domestic violence). The Tribunal accepts this evidence.
The Applicant said that they reported the incident to the police but they did not get anywhere where because the police said there was insufficient evidence for them to act. The Tribunal accepts this evidence.
The Applicant initially referred to there being only one loan made by her ex-boyfriend from the loan sharks (which she guaranteed), being the loan made in March or April 2017. The Applicant later changed her evidence and said that her ex-boyfriend made an earlier loan from the loan sharks (which she also guaranteed) in 2015 or 2016. In other words, there were, in fact, two loans rather than just one. The Tribunal asked the Applicant whether the earlier loan and guarantee were also documented and signed and she replied “yes,” but she could not provide copies of those documents. The Applicant told the Tribunal that both loans were borrowed from the same loan sharks and that she was the guarantor for both loans. The Tribunal accepts this evidence.
Irrespective of whether there were one or two loans made by the Applicant’s ex-boyfriend of which she is the guarantor, the Tribunal accepts that the Applicant guaranteed a loan or loans made by her ex-boyfriend from loan sharks in China before moving to Australia in 2018 and that the loan sharks visited the home of the Applicant and her ex-boyfriend on many occasions and tried to coerce them into abducting children (in lieu of repaying the loan) and when they refused the loan sharks tied them up, beat them and threatened to kill them.
The Tribunal again asked the Applicant why she agreed to be the guarantor of her ex-boyfriend’s loan or loans from the loan sharks and, on this occasion, the Applicant responded by saying that her now ex-boyfriend’s family was, in effect, well-off “financially” and, therefore, she thought they would both be “ok” as he would be able to repay the loan or loans. Further, the Applicant said that in the beginning of their relationship her ex-boyfriend treated her well, but later he became abusive “beat her up” and that she was “fooled by him”. The Tribunal accepts this evidence.
The Applicant said that she separated from her ex-boyfriend in the “winter” of 2017 and “hid” in a rented property on the outskirts of Shenyang city before moving to Australia in December 2018. The Applicant told the Tribunal that after “getting away” from her ex-boyfriend she “blocked” him on her phone and has had no contact with him since. The Tribunal accepts this evidence.
The Applicant claims that if she removed from Australia to China, she would definitely be harmed again by the loan sharks and that the police would offer her no protection.
Rural property claim
As set out above, the Applicant filed a “Pre-hearing information form” the Applicant stated:
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….
In her oral evidence at the hearing, the Applicant said that in 2016 or 2017, the government advised her mother that they were going to demolish the rural family home where the Applicant grew up, along with many other properties in the village, as part of a redevelopment of the area. The Applicant’s mother was the only one living at the rural property at the time. The Applicant’s mother kept her updated on developments concerning the government’s intention to demolish the rural family home. In around February 2018 (after the Chinese New Year), at her mother’s request, the Applicant returned to live with her mother at the rural family home. The Tribunal accepts this evidence.
According to the Applicant, sometime later a group of government personnel came to the rural family home to notify the Applicant’s mother of their intention to demolish it. On this occasion, the Applicant’s elderly mother became emotional, clashed with the government personnel, things became “physical” and some of the government personnel punched the Applicant’s mother. The Applicant said that she had to help her mother and she was also hurt in the process. The Tribunal accepts this evidence.
The Applicant told the Tribunal that she and her mother did not leave the rural property straight away after this incident. They remained in the rural family home. The government personnel came to the property several times after this and threatened them, locked them in the house and verbally and physically abused them until the Applicant eventually left, she said she “ran away disappointed” with the Chinese government. The Applicant said the government personnel threatened to kill her if she challenged them by going to court, stating that killing her would be “as easy as killing an ant.” The incident placed a huge stress on her mother and she passed away several months later. The Tribunal accepts this evidence.
The Applicant said that her rural family home, and surrounding properties, were eventually all bulldozed by the Chinese government. The Tribunal accepts this evidence.
The Tribunal asked the Applicant to explain what she feared if she returned to China, now that the rural family home had been demolished by the government and her mother had passed away. The Applicant responded by saying that because there was a lot of resentment on her part, and from the other families in the village, regarding the demolition of their homes and redevelopment of the village, which the government knew about, that the government may be so angry it may seek justice and potentially kill her, and she would not be protected by the police. For the reasons, provided below, the Tribunal does not accept this.
Receiving country
Based on the evidence before the Department, and the Applicant’s oral evidence at hearing, the Tribunal is satisfied that:
· China is the Applicant’s country of nationality and the “receiving country” (as defined in s 5(1) of the Migration Act) for both refugee and complementary protection purposes; and
· that the Applicant is currently living in Australia, outside her country of nationality (China) and, is therefore, a “non-citizen in Australia” for both refugee and complementary protection purposes.
ISSUE 1 – Refugee protection
Is the Applicant a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations, under s 36(2)(a) of the Migration Act, because she is a “refugee”, as defined in s 5H(1) of the Migration Act?
As set out above, the Applicant claims that she cannot return to China because she fears she:
· will be harmed by loan sharks who seek to recover an unpaid loan or loan made by her ex-boyfriend from loan sharks which the Applicant guaranteed (in around 2016 to 2017) and that the police will offer her no protection; and
· may be harmed by government personnel because of her involvement, in around February 2018, in assisting her mother to resist the government’s demolition of their rural family home and that the police will offer her no protection.
Loan shark claim
The country information, as set out in the DFAT “Country Information Report People’s Republic of China”, dated 22 December 2021 (2021 DFAT Report), in relation to “People who owe money to loan sharks”[1] which was put to the Applicant at the hearing, is that “usury” (the action or practice of lending money at unreasonably high interest rates) has a long history in China[2] and that some protection is available to debtors[3]. “Usurious loans” are prohibited under China’s Civil Code, which came into force 1 January 2021. DFAT is also aware of a 2018-2020 crackdown by authorities on usury, which was highly public and which saw the prosecution of many people[4]. 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[5]. DFAT assesses that loan sharks are active in China but assesses that state protection is available and that victims of loan sharks have a plausible fear of violence, but that overall risk is low.[6]
[1] 2021 DFAT Report at 3.122 -3.125. On 27 December 2024, after the hearing of this application on 9 December 2024, DFAT released a new replacement ‘Country Information Report People’s Republic of China (2024 DFAT Report)’. The section in 2024 DFAT Report which addresses “People who owe money to loan sharks” (3.220 – 3.223) is in substantially similar terms to the same section in the 2021 DFAT Report. Therefore, the Tribunal considered it unnecessary to call a further hearing to put the relevant, substantially similar, country information in the 2024 DFAT Report to the Applicant.
[2] 2021 DFAT Report at 3.122
[3] 2021 DFAT Report at 3.123
[4] 2021 DFAT Report at 3.123
[5] 2021 DFAT Report at 3.124
[6] 2021 DFAT Report at 3.125
Further, the country information set out in the DFAT “Common Claims People’s Republic of China”, effective from 23 July 20124, under the heading “Police continue to crack down on loan sharks and organised crime groups” (at pp 42 - 43), which was put to the Applicant at the hearing, states that, in May 2024, state media reported that over the past five years police have dismantled 5,200 criminal gangs and that in 2024, Chinese authorities “pledged” to intensify the crackdown on organised crime, including financial lending that involves illegal usury. Police generally have the capacity to deter and investigate crimes although may rely somewhat on technology and surveillance tools and urban law enforcement forces are better resourced and trained than rural forces.
Based on the above country information and the evidence before the Tribunal, the Tribunal is not satisfied that that there is a “real chance”, as that expression is understood to mean (see [31] to [38] above) the Applicant would be harmed if she was returned to China in the reasonably foreseeable future because she guaranteed her ex-boyfriend’s loan or loans to loan sharks. The Applicant claims that if she is removed to China, she would be harmed again by the loan sharks and that the police would offer her no protection. On the Applicant’s own evidence, it has been since at least March or April 2017 since the Applicant guaranteed her ex-boyfriend’s loan or loans from the loan sharks. The Applicant has had no contact with her ex-boyfriend since before leaving China and arriving in Australia in December 2018 such that it is mere speculation whether the loan sharks still seek repayment of their debt from her ex-boyfriend (which she guaranteed). Even if the Applicant were to still be a person of interest to the loan sharks and at risk of harm from them if she returned to China, the country information suggests that suitable state protection would be available to the Applicant in China.
In any event, as stated above, a “refugee” is a person who has a, as defined in s 5J(1)(a) of the Migration Act, a well-founded fear of persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion” and the Tribunal is not satisfied that the Applicant’s claimed fear in relation to the loan sharks and the guaranteed unpaid loans is not for any of the refugee protection reasons provided in s 5J(1)(a) of the Migration Act.
Rural Property claim
As stated above, the Applicant also claims that she may be harmed by government personnel, in about February 2018, because of her involvement in assisting her mother to resist the government’s demolition of her rural family home and that the police would offer her no protection. The Tribunal accepts that the Applicant may “subjectively” fear such harm. However, in circumstances where the demolition of the Applicant’s rural family home occurred many years ago and the Applicant’s mother has since passed away, the likelihood of the Applicant facing risk of harm from the government because she supported her mother in resisting the government’s demolition of the rural family home is entirely speculative and, respectfully, far-fetched. The Tribunal is not satisfied that that there is a “real chance”, as that expression is understood to mean (see 31) to [38] above) the Applicant would be harmed by government personnel if she was returned to China in the foreseeable future because she supported her mother in resisting the government’s demolition of her rural family home.
In any event, as stated above, a “refugee” is a person who has a, as defined in s 5J(1)(a) of the Migration Act, a well-founded fear of persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion” and the Tribunal is not satisfied that the Applicant’s claimed fears of harm in relation to the government personnel and her involvement in resisting the demolition of the rural family home is for any of the refugee protection reasons provided in s 5J(1)(a) of the Migration Act.
Conclusion – refugee protection (s 36(2)(a) of the Migration Act)
For the above reasons, the Tribunal is not satisfied that the Applicant is a “refugee,” as defined in s 5H(a) of the Migration Act and, it follows, a person in respect of whom Australia has refugee protection obligations under s 36(2)(a) of the Migration Act.
ISSUE 2 – Complementary protection
Is the Applicant a non-citizen in respect of whom the Tribunal is satisfied has protection obligations, under s 36(2)(aa) of the Migration Act because 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 she will suffer “significant harm”, as defined in s 36(2A) of the Migration Act?
Having concluded that the Applicant does not meet the refugee criterion in s 36(2)(a) of the Migration Act, the Tribunal has considered, below, the alternative criterion in s 36(2)(aa) of the Migration Act.
For the above reasons, the Tribunal is not satisfied that there is a “real risk” (as the “real chance” test for refugee protection purposes is that same as and the “real risk” test for complementary protection purposes: see [46] above) that the Applicant will suffer any harm, let alone “significant harm” (as defined in s 36(2A) of the Migration Act: see [47] and [48] above), as required by s 36(2)(aa) of the Migration Act, if she is removed from Australia to China in the reasonable foreseeable future.
In any event, as discussed above, based on the country information effective protection is available from the State, 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 26(2A) of the Migration Act: s 36(2B)(b) of the Migration Act.
Conclusion – complementary protection (s 36(2)(aa) of the Migration Act)
For the above reasons, the Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has complementary protection obligations under s 36(2)(aa) of the Migration Act.
CONCLUSIONS
For the above reasons, the Tribunal is not satisfied that the Applicant is a non-citizen in Australia in respect of whom Australia has:
(i)refugee protection obligations, under s 36(2)(a) of the Migration Act, because the Applicant is a “refugee”, as defined in s 5H of the Migration Act; or, alternatively,
(ii)complementary protection obligations, under s 36(2)(aa) of the Migration Act, because 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 she will suffer “significant harm”, as defined in s 36(2A) of the Migration Act.
For completeness, there is no suggestion that the Applicant satisfies s 36(2) of the Migration Act 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.
DECISION
For the above reasons, the Tribunal affirms the Refusal Decision (i.e. the Respondent’s decision not to grant the Applicant a protection visa).
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.
…
0
11
0