1922263 (Refugee)

1922263 (Refugee) [2023] AATA 1032 (17 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Rongwu Liu (MARN: 0321108)
CASE NUMBER:  1922263
COUNTRY OF REFERENCE:                   China
MEMBER:David James
DATE:17 January 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 January 2023 at 11:10am
CATCHWORDS
REFUGEE – Protection visa – China – debts to loan sharks – fear harm from loan sharks/illegal money lenders – applicant has not provided any information to support her claim – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 411, 499
Migration Regulations 1994, Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo & Anor (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 dependant.
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 23 July 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 27 June 2019. The delegate refused to grant the visa on the basis that the applicant was not found to be a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act, and was not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant: s36(2)(b) and s 36(2)(c) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 12 August 2019. The applicant provided a copy of the department’s notification letter with the application for review. On 16 January 2023 the applicant also provided a copy of the delegate’s decision to the Tribunal.
As noted above, the applicant provided a copy of the department’s notification letter with the application for review and later a copy of the delegate’s decision. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the 5 reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to China she would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of 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 Act.
Applicant’s claims for protection
The applicant in her visa application stated that she is low educated and has no skills and as such it was difficult for her to earn a living in China. She indicated that since she had returned from [named country] in 2016 life had become harder for her. She made the following claims for protection:
·She has debts and has been persecuted by Chinese officials.
·She was physically abused and tortured in China and the local government never protects a weak woman like her.
·She claims her situation in China was terrible as she had no job, no health care and protection, no husband and debts to loan sharks.
·She was chased by loan shark companies and the local government officials.
·That people are not allowed to take the train, flights to other cities and that she was in home custody for along time and that she had no way to move freely in her own country. The Tribunal has interpreted this claim in terms that her restrictions of movement arise from her debts.
·She claims that if she was to return to China the local government and loan companies will torture her, and her daughter will also be harmed.
·She claims she owed a lot of money to loan companies and the authorities will also try to find her, as she is a troublemaker to all.
The applicant also stated in her application that:
I will meet my agent tomorrow and then I will submit a detailed statement about my suffering in China. I can’t prepare my explanation in this form because I don’t feel very suitable and my mental conditions don’t allow, me to state logically.
As of the date of this decision no ‘detailed’ statement has been provided to the department and/or the Tribunal.
Department interview
The applicant was not offered an interview by the Department.
Delegate’s decision
The delegate’s decision to refuse the applicant’s application for a protection visa was made on the information before the delegate. The delegate found that the applicant’s claimed to fear harm from loan sharks/illegal money lenders. The delegate found that the claimed fear by the applicant was based on the basis of repaying a debt and not for any of the reasons provided in s 5J(1)(a) of the Act. The delegate refused to grant the visa as they were not satisfied that the applicant was a refugee as defined by s 5H of the Act and was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. Additionally, the delegate after considering country information found that the applicant could obtain from an authority of the country protection such that there would not be a real risk that the applicant would suffer significant harm as outlined in s 36(2B)(b) of the Act. Therefore, the delegate found that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Invitation to attend hearing
On 13 December 2022 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on Tuesday 17 January 2023. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice
On Friday 13 January 2023 the Tribunal received an email from the applicant’s representative in which they stated (in part) that:
About the hearing invitation, I have advised my client about it and she replied to me that she could not provide any further documentation as per your request. I also advised her procedures about the AAT hearing and she asked me to reply you to assess her review application with information submitted. Please proceed with her review application accordingly.
On Monday 16 January 2023 the applicant’s representative forwarded the applicant’s Response to hearing form to the Tribunal which was signed by the applicant’s representative. The form indicated that the applicant would not be participating in the hearing and consents to the Tribunal making a decision on the papers. In reply to the Tribunal’s query as to when the applicant had provided her recent instructions to her representative, her representative in an email on that date that also enclosed the department’s Decision Record stated that:
I have contacted my client a number of times since receiving your hearing response request, initially she said she would think about it and would reply me later, but the client hadn’t replied me. The client also told me that she has no way to print and scan the response letter and asked me to complete the response letter and send it to the members.
This matter has therefore been determined on the evidence before the Tribunal.
Country information
The Tribunal has taken into account the Country Information Report – People’s Republic of China[1] as relevant, including the information under the headings of: ‘Unemployment’ at 2.9 to 2.10 where it states that:
[1] Australian Government, Department of Foreign Affairs and Trade, DFAT Country Information Report People’s Republic of China, 22 December 2021.
According to International Labour Organization (ILO) data, China’s reported urban unemployment rate was consistently around 4.5 per cent between 2011 and 2018 but rose to 5 per cent in 2020 with the impact of COVID-19. The real rate of unemployment is probably higher than official statistics. The official unemployment rate does not fully capture underemployment or unemployment of migrant workers, a 290 million strong workforce.
The changing nature of work has made it difficult for some low-skilled workers to find employment. Before the COVID-19 pandemic the government focussed on the creation of new urban jobs. Some laid-off factory workers have taken up employment as delivery drivers and shop workers, but these too have been disrupted by the pandemic.
‘People affected by social credit systems’ at 3.96 to 3.99 which provides that:
Social credit systems are databases that keep a tally of points that are earned for socially responsible behaviour or lost for anti-social behaviour. There is no unified, social credit system in China; the term ‘social credit system’ is an umbrella term capturing a wide range of different programs at different levels of government across China. Different systems apply to individuals, businesses and government entities. The different programs operate in very different ways, but they generally seek to improve the enforcement of existing laws and regulations. The phased rollouts are managed by the National Development and Reform Commission, People’s Bank of China and the court system. According to The Diplomat in March 2021, the roll out of social credit systems is ‘disjointed’ with ‘large gaps’ in ‘inter-agency transfer’, and the roll out is at different stages in different provinces.
Some cities have implemented social credit systems under localised programs, but generally these function as an incentive mechanism with nominal benefits such as cheaper bus tickets or deposit-free library loans. Many programs do not allocate individuals or companies a ‘score’, and many entities and individuals in China do not have any credit score.
Prior to the development of these systems, Chinese authorities had the ability to add individuals who had defaulted on court-ordered payments, and who were able to pay, to a Supreme People’s Court (SPC) ‘blacklist’. Being listed on the SPC blacklist could restrict an individual’s ability to travel by first-class air and rail, access loans, spend on ‘luxury’ items and access private education opportunities for children. DFAT understands that the social credit system mostly affects domestic travel and the government has other mechanisms to determine whether or not a person can leave the country. However, the ABC reported in 2019 that 128 people had been prevented from leaving China because of a bad social credit score.
As part of authorities’ efforts to develop a more uniformed application of the social credit system, authorities are developing processes to ‘remedy’ social credit scores, however how these would operate in practice is unclear and remains under development.
At 3.109 to 3.116 in relation to ‘Women’, it states at 3.116 that:
Overall, DFAT assesses that in general women China face a low risk of official discrimination, except for women experiencing domestic violence, as noted above. Women may be able to relocate elsewhere to escape from domestic violence (see Internal Relocation) but in doing so would lose their social and family support networks. State protection may be available to women experiencing domestic violence, but it is not guaranteed.
‘People who owe money to loan sharks’ at 3.122 to 3.125; and notes that at 3.124 and 3.125 the Report states:
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 in Lanzhou. The gang had over 1,300 mobile phone applications and websites to facilitate usurious moneylending. The Chinese Government claims that 41,000 suspects have been detained in 2021, but it is not clear if this is only during the recent crackdown, or if it includes previous arrests.
DFAT assesses that loan sharks are active in China, but assesses that state protection is available. DFAT considers that victims of loan sharks have a plausible fear of violence but that overall the risk is low.
‘State Protection’ as it related to ‘Police’ at 5.1 to 5.6, where at 5.2 and 5.3 it is states:
Police maintain public order and social stability, which are overriding priorities for the CCP. Loyalty to the Party is important among police ranks, as it is in all government positions. Police, including at lower levels, can be investigated for corruption (which is a threat to stability and Party legitimacy) and loyalty offences.
Police carry out day-to-day crime fighting activities and investigate crimes. Day-to-day crime rates are low in China but where crime does occur, DFAT understands that police investigate thoroughly and prosecute alleged criminals.
And ‘Exit and Entry Procedures’ at 5.31 to 5.35, noting that at 5.35 it is reported that:
DFAT assesses it is almost impossible to exit China without authorities’ knowledge. It is difficult or impossible to forge identity documents that would be able to be used in practice and technology and algorithms (rather than a human official who may be liable to bribery) may make decisions. Even if a human does inspect the document an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicants meet the criteria for the grant of protection visas.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of China and provided a copy of her passport to the department. Based on this material the Tribunal finds that the applicant is who she says she is, and a citizen of China. China is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[2] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[3] This is consistent with the established proposition that it is for the applicant to make his or her own case.[4]
[2] Section 5AAA of the Act.
[3] Ibid (with effect from 14 April 2015).
[4] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. 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 remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–70.

The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[5] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[6] and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[5] Fox v Percy (2003) 214 CLR 118.
[6] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[7] A similar approach is taken in the department’s Refugee Law Guidelines[8] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[9] which provides useful guidance for this Tribunal.
[7] SZLVZ v MIAC [2008] FCA 1816 at [25].
[8] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).
[9] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal observes that the applicant has not provided a level of detail necessary to satisfactorily establish the relevant facts of this case. Further, it is noted that, despite having received an unfavourable decision from the delegate, the applicant failed to attend their review hearing of 17 January 2023 and give oral evidence and make submissions.
Debts to loan sharks
The applicant claims she has debts to loan sharks and has been persecuted and chased by local government officials and loan shark companies in China. Further she claims that if she was to return to China the local government and loan companies will torture her and that her daughter will also be harmed. She states that she owes a lot of money to the loan companies and that the Chinese authorities will find her as she is known as a troublemaker.
The applicant’s claims are vague and lack any detail as to the amount of her loans, when and how these loans were secured and with which loan companies she had obtained her funds. Further the Tribunal notes that the applicant has not provided the Department or the Tribunal with any loan documentation, or letters of demand relating to her supposed loans.
In considering these claims the Tribunal has had reference to the relevant country information as outlined above at paragraph 21 and notes that although loan shark operations may be of a large scale in China the police operations that combat these practices are equally large scale. The Tribunal in this regard accepts DFAT’s assessment that loan sharks are active in China, but that state protection is available and that victims of loan sharks have a plausible fear of violence but that the overall risk is low.
Given the lack of detail provided by the applicant and the inconsistency of her claims to the relevant country information, the Tribunal rejects the applicant’s evidence as to her claims of having debts to Chinese loan shark companies in it’s entirely and finds that her fears in this regard are not weel-founded.
Torture, abuse and house detention
As to the applicant’s claims of having been physically abused and tortured in China supposedly as a result of her loans and that the local government never protects a weak woman. The applicant has again not provided any details of her purported torture. She has not identified when, where and how she was so tortured and by who she was supposedly tortured by and for what reason. Equally the applicant has not provided any information to support her claim that the local government never protects a woman like her. In that regard the Tribunal notes that the applicant has not identified what if any complaints she made as to her situation and any purported violence or torture she supposedly suffered to the local authorities or police. Additionally, she has not provided any information as to what action or inaction arose from any complaints she made to the police and/or local authorities such that she would have a basis to make her claim that she cannot receive protection from the local authorities and/or the police.
Given the lack of detail provided by the applicant as to her claims of physical abuse and torture and the failure of the local authorities and/or police to provide her with protection together with the relevant country information as to ‘loan sharks’, ‘women’ and ‘state protection’. The Tribunal rejects the applicant’s claims of being physically tortured and being unable to access protection from the local authorities. Given the Tribunal’s findings as to the applicant’s claims as to having debts to loan sharks the Tribunal rejects all of the applicant’s evidence as to these claims of having been physically abused, tortured and being unable to obtain protection. The tribunal finds that the applicant’s claims and fears as to physical harm and torture are not weel-founded.
Fear of harm to her daughter
In relation to the applicant’s fears that her daughter will be harmed she has again provided no details but for identifying her [age] year old daughter and stating that she resides in Chongqing China in the visa application. Given the applicant has not reported that her daughter has since her (applicant) departure from China been subject to any approaches from the loan sharks and/or any government authorities as to her mother’s debts, nor has she reported that her daughter has been arrested, questioned or harmed in any way. The Tribunal does not accept that her daughter is at risk of harm as a result of the applicant’s debts from the loan sharks and/or the local government. The Tribunal finds that the applicant’s fears in this regard are not well-founded.
Employment
Further the applicant has stated that her situation in China was terrible as she had no job, no health care and protection and no husband. However, again the applicant has provided no details of her employment history and only relies upon her statement that she is low educated and has no skills. With reference to the relevant country information as outlined above at paragraph 21 as to ‘unemployment’ the Tribunal rejects the applicant’s evidence given the vague nature of same and does not accept any of her evidence as to this claim.
The applicant also claims that people are restricted in their ability to travel internally and that she was in home custody for a long time and was unable to move freely. The Tribunal in considering this claim notes that the relevant country information as to ‘social credit systems’ does support the claim that travel restrictions can be applied in a variety of ways to improve the enforcement of existing laws and regulations. However again the applicant has not provided any details as to whether she has been subject to any orders and she has not provided any details or documents relating to this claim. Given the Tribunal has rejected all of her evidence as to her purported debts to loan sharks and that she has provided no details as to her claim of having been in home custody and noting that such custody would be a significant event. The Tribunal finds it implausible that the applicant could not provide specific details of her home detention given its significance to her and as such again rejects all of her evidence to the Tribunal as to this claim and finds that her fears in relation to these claims are not well-founded.
Ability to exit China
Finally, the Tribunal notes that notwithstanding the applicant’s claims of having been chased by the local authorities and that people are not allowed to travel (in circumstances of negative credit orders) and that she spent a period of time in home custody the applicant was able to obtain a Chinese passport in her own name in 2016. It is also noted that later in 2019 the applicant was able to depart China without incident using her passport. Given the relevant country information as to Chinese exit procedures her ability to have departed China without incident is inconsistent with all of her claims.
Therefore, on the basis of the findings above, the Tribunal rejects all the evidence and the claims made by the applicant and finds that the applicant’s fears are not well-founded.
Refugee criterion – s 36(2)(a) of the Act
Based on the information before it, the Tribunal having considered all of the applicant’s claims both individually and cumulatively, and considering the cumulative effect of the applicant’s claims finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
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) of the Act.
Complementary protection – s 36(2)(aa)
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk that she will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2) of the Act.
As the Tribunal has found that the applicant does not meet the refugee criterion or the complementary criterion and does not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than China.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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.
…

[2023] AATA 1032

17 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Jurisdiction

Statutory Construction

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