1920035 (Refugee)

1920035 (Refugee) [2024] AATA 3824 (14 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1920035
COUNTRY OF REFERENCE:                   China
MEMBER:Ben Lumsdaine
DATE:14 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 August 2024 at 10:50am

CATCHWORDS
REFUGEE – protection visa – China – particular social group – victim of loan sharks – threats from debt collectors – physical assault – detention – fear of killing – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 May 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 6 January 2019. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant sought review of this decision on 2 June 2019.
CLAIMS AND EVIDENCE
Background
The applicant is [an age]-year-old man from China. The applicant arrived in Australia [in] November 2018, travelling on a valid Chinese passport issued [in] 2017.
Evidence before the Department of Home Affairs
The applicant applied for a protection visa on 6 January 2019. In his application for a protection visa, the applicant made the following claims:
·     He borrowed money from a loan shark.
·     He is afraid of being taken away by ‘usury people’ who are threatening his life. He fears people will come to his house to beat him, swear at him and threaten to kill him and send him pictures.
·     He was locked up and beaten and intimidated, receiving death threats.
·     He did not believe police or the authorities in China could protect him.
·     He did not believe he could relocate within China.
On 9 January 2019, the applicant was sent a letter from the Department of Home Affairs (the Department) acknowledging they had received a valid protection visa application and informing the applicant that an appointment had been made for him to provide biometrics information on 15January 2019. The applicant attended the biometrics appointment at the Department of Home Affairs.
On 10 May 2019, a delegate of the Minister for Home Affairs refused the applicant’s protection visa application. The delegate found that effective protection was available to the applicant in China such that he would not face a real chance of serious harm in China and there was not a real risk he would suffer significant harm in China. Consequently, the delegate found that the applicant was not a person in respect of whom Australia had protection obligations and did not meet the criteria for a protection visa.
The applicant was notified by email sent to the email address provided in the applicant’s protection visa application.
Evidence before the Tribunal
On 2 June 2019, the applicant applied for review of the delegate’s decision to refuse his protection visa application. On 26 March 2024, the Tribunal sent the applicant an email with a pre-hearing information form to inquire about his availability to attend a hearing. The Tribunal did not receive a response to this email.
On 18 July 2024, the applicant was sent an invitation to attend a hearing before the Tribunal on 29 August 2024.
On 22 July 2024, the applicant returned by email a ‘Response to hearing invitation’ form indicating that he did not want to attend a hearing and consented to having a decision on his application for review made on the papers.
On 23 July 2024, at the direction of the member, a Tribunal officer contacted the applicant by telephone with the assistance of an interpreter to confirm the applicant consented that the Tribunal make a decision without the applicant attending a hearing. The applicant confirmed that he did not wish to attend a hearing before the Tribunal.
The Tribunal is satisfied that the applicant has consented to the Tribunal making a decision on his application for review without appearing before it.
No further information or evidence has been provided to the Tribunal in relation to the applicant’s claims.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Analysis – assessment, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. The Tribunal has considered the applicant’s claims and the independent information described above and makes the following findings. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and receiving country
The applicant claims to be a citizen of China and no other country. The applicant provided the Department with a copy of his Chinese passport. The delegate was satisfied with the applicant’s identity and the authenticity of his passport. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of China and considers China is the receiving country for the purpose of assessing his/her claims against the refugee and complementary protection criteria respectively.
Consideration of applicant’s claims to be a refugee
It is the responsibility of an applicant for a protection visa to specify all particulars of his or her claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA(2) of the Act. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the applicant’s claim, or to establish or assist in establishing the claim: s 5AAA(4). Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal formed the preliminary view that there was insufficient material before it to be satisfied that the applicant’s claims to be owed protection were established, and that he faces a real chance or real risk of serious or significant harm on return to China. As the Tribunal was unable to make a favourable decision it invited the applicant to a hearing in accordance with s 425 of the Act. The Tribunal’s invitation to the hearing advised the applicant that it was unable to make a favourable decision on the information before it. Despite this, the applicant has elected not to attend the hearing and consented to a decision on the papers.
The Tribunal has reviewed both the Department and Tribunal files. In particular, the Tribunal has reviewed the applicant’s protection visa application, and read the delegate’s decision.
The delegate’s decision made it clear that the written information provided by the applicant was not a sufficient basis to be satisfied that the applicant was owed protection obligations by Australia.
Since lodging his review application, the applicant has not provided any further material or written arguments in support of his claims for protection.
In choosing not to attend a hearing before the Tribunal, the applicant has chosen not to provide more detailed oral evidence about his claims.
Having considered, the information before it, there is insufficient evidence to satisfy the Tribunal about central aspects of the applicant’s claims. The application form contained no details about when the applicant borrowed money, who he borrowed money from other than references to ‘a loan shark’ or ‘usury people’. The Tribunal has no detail before it regarding what the applicant borrowed from the loan shark, the terms of the loan or the agreed consequence of not repaying the loan. The Tribunal also has very little detail regarding the harm the applicant claims he was subjected to from the loan shark or the harm he claims to fear from the loan shark. In the application, the applicant indicated he had not been harmed by the loan shark. The applicant also claimed to fear harm including, ‘being taken away’, having his life threatened, having people come to his house and beat him, and swear at him, being locked up and beaten and being intimidated and harassed. The information provided by the applicant is so sparse that the Tribunal is unable to make an assessment as to what happened to the applicant or what the applicant fears may happen to him in the future.
Further, there is no updated information before the Tribunal whether the applicant continues to fear harm from loan sharks, and if so, the nature of the harm he fears or the reasons he fears it. There is no updated information who he fears harm from or in which circumstances, whether he believes he could seek protection from police or other authorities or reasonably relocate to another part of China.
On the evidence before it, there is insufficient information for the Tribunal to make an assessment whether the applicant has been harmed in the past as claimed and continues to fear harm in the future in China. Further there is insufficient information and evidence before the Tribunal for it to determine whether the harm the applicant fears, if any, would amount to serious harm or is directed to him for a reason set out in s 5J(1)(a) or whether there is a real chance the applicant would face that harm or whether it extends throughout China or whether effective protection from the harm is available to the applicant.
Findings on refugee criterion
For the reasons above on the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of serious harm on return to China for any reason in s 5J(1)(a), now or in the reasonably foreseeable future. The Tribunal is therefore not satisfied the applicant has a well-founded fear of persecution in China. Accordingly, the applicant does not satisfy s 5H(1).
Consideration of applicant’s claims for complementary protection
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (the complementary protection criterion).
The Tribunal is not satisfied that the applicant would face a real chance of serious harm in China and has considered whether the applicant meets the complementary protection criterion.
The Tribunal is similarly not satisfied that the applicant would face a real risk of significant harm in China. As set out above, the applicant has provided insufficient information and evidence for the Tribunal to make an assessment whether he would be harmed on return to China. The Tribunal is unable to assess whether the applicant fears significant harm in China or whether there is a real risk the applicant would face such harm. There is also insufficient evidence for the Tribunal to assess whether protection is available to the applicant to mitigate this risk or whether the applicant could reasonably relocate within China.
On the basis of the evidence before it, the Tribunal is not satisfied there is a real risk the applicant will face significant harm on return to China.
Findings on complementary protection
The Tribunal is not satisfied that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk he will suffer significant harm.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Ben Lumsdaine
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 3824

14 August 2024

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