1918782 (Refugee)

1918782 (Refugee) [2024] AATA 3964 (4 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1918782

COUNTRY OF REFERENCE: China
MEMBER:Kathleen Timbs
DATE:4 September 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 September 2024 at 1:43pm
CATCHWORDS
REFUGEE – protection visa – China – particular social group – victim of loan shark – threats from debt collectors – physical assault – fear of killing – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant [name] (the applicant) a protection visa under s 65 of the Migration Act 1958 (the Act).
[In] April 2019, the applicant arrived in Australia from China.
On 19 May 2019, the applicant applied for the visa.
On 17 June 2019, the delegate refused to grant the visa.
On 12 July 2019, the applicant applied for review of that decision by the Tribunal.
On 29 July 2024, the Tribunal sent the applicant an invitation to a hearing on 14 August 2024 to present evidence and make arguments in support of his application for review. The hearing invitation stated:
We have considered the material before us but we are unable to make a favourable decision on this information alone.
On the same day, the applicant advised the Tribunal that he would not attend the hearing and consents to the Tribunal making a decision on the information it has available.
RELEVANT LAW – CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are in s 36 of the Act.
To be granted the visa, an applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, they must be either a person in respect of whom Australia has protection obligations because they meet the refugee criterion or the complementary protection criterion, or they must be a family member of a person who meets one of those criteria and that person holds a protection visa.
The Tribunal must affirm the decision under review if it is not satisfied that the applicant meets one of these criteria.
Refugee criterion
The criterion in s 36(2)(a) of the Act 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.
Section 5H(1) of the Act provides that a person is a refugee if he or she is outside their country of nationality and is unable or unwilling to avail himself or herself of the protection of that country because of a well-founded fear of persecution.
Under s 5J of the Act,
·a person has a ‘well-founded fear of persecution’ if:
-    the person fears persecution;
-    there is a real chance that the person would be persecuted;
-    the real chance of persecution relates to all areas of the receiving country;
-    the persecution involves serious harm and systematic and discriminatory conduct;
-    the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion; and
·the person does not have a well-founded fear of persecution if:
-     effective protection measures are available to the person; and
-    they could take reasonable steps to modify their behaviour, other than certain types of modification.
Complementary protection criterion
A person who is not a refugee may satisfy the criterion for a protection visa in s 36(2)(aa) if the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.
EVIDENCE AND MATERIAL CONSIDERED BY THE TRIBUNAL
The Tribunal considered the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) for protection status determinations. The relevant assessment is the DFAT Country Information Report People’s Republic of China published on 22 December 2021.
The Tribunal also considered relevant documents provided by the Department, including the applicant’s visa application and the delegate’s reasons for Decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality
The applicant provided a Chinese passport to the Department. It examined it and found that it was genuine. On that basis, the Tribunal accepts that the applicant is a citizen of China.
The Tribunal has no evidence to suggest the applicant has a right to reside in any third country and it is satisfied that China is the receiving country for ss 36 and 5J.
Protection claims
The applicant made the following claims for protection in his visa application completed in 2019:
·He borrowed [amount] yuan in China to participate in an ‘online financial mutual help platform’. The platform shut down and he could not repay the debt which amounted to [amount] yuan with interest.
·The creditor sent a person to recover the money who assaulted him and threatened him.
·He would be unable to repay the debt if he returned to China and the creditor would kill him.
The applicant did not make any further claims or provide further detail of his claims to the Department or the Tribunal.
Assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either that they genuinely hold that fear, that it is ‘well-founded’, or that it is for the reasons claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It is for the applicant to provide evidence that satisfies the Tribunal that all the statutory elements for one or more of the criteria are made out.
DFAT ‘assesses that loan sharks are active in China’ (paragraph 3.124 of the DFAT report). However, in this case, the applicant did not provide enough detail to satisfy the Tribunal that he was subject to harassment or violence, or any other kind of harm, from a creditor before leaving China because he had not paid a debt. He has not updated his claims by providing information such as whether he has made repayments on any debt since arriving in Australia, the outstanding balance of any debt, and whether he claims the creditor would kill him if he returned and could not repay any outstanding debt after approximately five years. In the Tribunal’s view, there is insufficient detail in the applicant’s written evidence to come to any conclusions about the nature of any harm the applicant fears on return to China, whether there is a real chance or risk of harm and whether any harm he fears amounts to serious or significant harm.
In that case, the Tribunal is not satisfied there is a real chance the applicant would experience serious harm in China. It follows it is not satisfied he has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. He is therefore not a person in respect of whom Australia has protection obligations because he is a refugee and he does not meet the refugee criteria in s 36(2)(a).
For the same reasons, the Tribunal is not satisfied 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 would suffer significant harm. It follows he does not meet the complementary protection criterion in s 36(2)(aa).
CONCLUSION
The Tribunal has found that the applicant does not satisfy the refugee or complementary protection criteria in s 36(2)(a) and (aa). It has no evidence that he is a member of a family unit who satisfies the refugee or complementary protection criteria and he therefore does not satisfy the criteria in s 36(2)(b) or (c). The Tribunal will affirm the decision under review for those reasons.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kathleen Timbs
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 3964

4 September 2024

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