1935570 (Refugee)

1935570 (Refugee) [2021] AATA 804 (18 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1935570

COUNTRY OF REFERENCE: China
MEMBER:Peter Haag
DATE:18 March 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 March 2021 at 3:57pm
CATCHWORDS
REFUGEE – protection visa – China – particular social group – victims of loan sharks – physical assault – fear of torture – state protection – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
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 4 December 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 16 August 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a genuine refugee, or of the existence of a real risk of the applicant suffering significant harm if he is returned to China.
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 (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 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 of 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) of the Act, 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.
The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b) and (c).
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a genuine refugee, or a person entitled to complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In this review, the applicant provided to the Tribunal a copy of the record of the delegate’s decision made on 4 December 2019. The Tribunal has read that decision.
The applicant claims and the Tribunal accepts the applicant is a citizen of the People’s Republic of China. The applicant was born on [date] in Yantai City, Shandong Sheng, People’s Republic of China (PRC). These facts are well established by the documentation the applicant provided to the Department, including his passport. There is no evidence before the Tribunal that indicates the applicant’s passport is a bogus document. The Tribunal is satisfied the applicant is a national of the PRC, and the PRC is the applicant’s ‘receiving country’ for the purposes of s.36(2)(aa) of the Act.
The evidence does not demonstrate the applicant has a right to enter and reside in a country other than the PRC, accordingly, the Tribunal is satisfied the applicant is not excluded from protection under the laws of Australia by s.36(3) of the Act.
On 17 February 2021 the Tribunal invited the applicant to attend a review hearing listed to take place at 1.00 pm (Victorian time) on 9 March 2021. On 5 March 2021 the applicant’s representative informed the Tribunal in writing they had been instructed by the applicant that the applicant would not attend the hearing. The representative’s correspondence was accompanied by a ‘Response to hearing invitation’ document evidently signed by the applicant and dated 5 March 2021. In that document the applicant informed the Tribunal he would not participate in the hearing and that he consented to the Tribunal deciding the review on the papers without taking further steps to allow him to appear before the Tribunal. Based on the applicant’s consent, the Tribunal has decided to proceed to a decision on the available information, that is to decide the review on the papers.
The applicant departed the PRC [in] May 2019 and arrived in Australia [later in] May 2019 as a visitor.[1]
[1] Application for a protection visa, Department of Home Affairs file
According to the applicant’s application for a protection visa lodged with the Department on 16 August 2019 the applicant claimed:
·‘Not long ago’ that he and his wife opened a [business] in the PRC.
·The [business] failed for financial reasons.
·The applicant used borrowed funds from a ‘loan shark’ to ‘rejuvenate’ the business.
·The borrowed funds successfully ‘rejuvenated’ the business.
·After a few months the borrowed money was ‘completely gone’.
·The business went into debt.
·The borrowed money could not be repaid in accordance with the agreed repayment schedule.
·The ‘loan shark’/unlicensed money lender ‘maliciously’ threatened the applicant on every occasion he was unable to make the required repayments.
·Additionally, he was kicked and punched because he failed to repay the debt.
·He did not seek help from any ‘governing body because I loaned the money from an unlicensed moneylender’.
·Borrowing from an unlicensed moneylender is illegal, and for that reason the authorities would not protect him from the threatened harm, including assault, torture and being killed.
·He did not relocate or attempt to relocate to another part of the PRC because he believed if he attempted to relocate, he would be found and killed.
·If he returned to the PRC unable to repay the debt, he believes he would be ‘tortured and mistreated’ and if the debt remained unpaid, he would be killed.
·The reason he is in Australia is to work and earn enough money to repay the loan.
Refugee considerations
According to the delegate’s decision, and the Department file, on 19 August 2019 the applicant was invited in writing to provide additional information about his claims. He did not do so. The applicant declined to appear before the Tribunal to give evidence and make submissions in support of his claims. Consequently, the applicant’s claims stand unverified by supporting evidence, and unconfirmed and untested in a review hearing.
A refugee is a person who has, as defined in s.5J(1)(a), a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.
The applicant has claimed he fears being harassed, assaulted, tortured, or killed by a loan shark if he returned to China. The Tribunal finds that the applicant’s claimed fear of harm arises from his failure to repay money owed pursuant to a loan agreement with a loan shark/unlicensed money lender. Therefore, the Tribunal is not satisfied that the applicant’s claimed fear of harm is essentially and significantly for any of the refugee reasons provided in s.5J(1)(a) of the Act. Accordingly, the Tribunal is not satisfied that [the applicant] is a refugee as defined by s.5H(1) of the Act. Therefore, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act.
As the Tribunal is not satisfied [the applicant] is a refugee, as defined by s.5H(1) of the Act, an assessment in relation to s.5H(2) of the Act has not been made.
Complementary protection
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). In MIAC v SZQRB[2], the Full Federal Court held that the ‘real risk’ test, which is material to the disposition of the s.36(2)(aa) ground, imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition. In accordance with Ministerial Direction No.84, the Tribunal has had regard to policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian – Complementary Protection Guidelines. However, to the extent that these conflict with the findings in SZQRB, the Tribunal has relied on the relevant case law. The Tribunal accepts the ‘real chance’ test is the same as the ‘real risk’ test.
[2] (2013) 210 FCR 505, Lander and Gordon JJ [246], Besanko and Jagot [297], Flick J [342]
For the reasons set out below, the Tribunal finds the applicant has not established the existence of a real chance he would be persecuted, or a real risk he would be harmed because he is indebted to a loan shark/unlicensed money lender, if he returned to the PRC now or in the reasonably foreseeable future.
The applicant claims he opened the [business] business with his wife. It stands to reason the applicant’s wife would be aware of the operation of the business; the financial needs of the business; any financial distress suffered by the business; and, whether the business received a capital injection that successfully ‘rejuvenated’ the business. Evidence of this sort may serve to verify the applicant’s claim that he invested borrowed money in successfully ‘rejuvenating’ the business.
It is reasonable to expect the applicant’s wife would be well placed to give evidence, or provide a statement about the location and name of the [business], the start date of the business, the operating history of the [business] and other details that may serve to verify the existence of the [business], and to support the applicant’s claim that he and his wife established and operated a [business] in the PRC.
Common sense suggests, and it is reasonable to take the view that, if the applicant was threatened and assaulted and he was in fear for his life before he departed the PRC, his wife is likely to be aware of those circumstances if they existed, and be able to give some evidence in support of the applicant’s claims, if he was in fact threatened, assaulted and lived in fear of being murdered by a loan shark.
The applicant did not support his claims with detailed information about the name and address, or other relevant particulars about the existence and operation of the [business] business, that may lend credibility to his claim the he and his wife established and operated a [business] business in the PRC at some time proximate to his arrival in Australia.
The applicant has not provided any documentation such as any official authorisations from the local authorities relevant to the establishment and operation of the [business]. The applicant has not provided any documentation such as accounting records or other documents that verify the existence of the [business] and that it was established and operated by the applicant and his wife.
The applicant has not provided evidence about the severity of any injuries he may have suffered at the hands of the loan shark or their agents. There are no photographs or other concrete evidence before the Tribunal that verifies the existence of the applicant’s claimed injuries, or when and where those injuries were inflicted. The applicant has not identified whether the unlicensed money lender assaulted and threatened him or whether that was done by people acting for the money lender (loan shark).
The applicant has not named the person or entity from whom he claims he borrowed the money; or any other identifying details such as the address or contact details of that person or entity. The applicant has not provided any details of the loan such as the date on which it was taken out; the sum of money borrowed; and, when the scheduled loan repayments were due.
The applicant’s claims summarised above at [18] are vague; they are unverified by supporting evidence, and the Tribunal finds them unpersuasive. More particularly, the Tribunal is not satisfied that:
·the applicant opened and operated a [business] with his wife in the PRC;
·the applicant borrowed money from an unlicensed money lender during the running of the [business] and invested that money in the business;
·the applicant entered into a loan agreement with an unlicensed money lender and that he is in fact indebted to the unlicensed money lender;
·the applicant was threatened and assaulted by an unlicensed money lender or their agents; or
·the applicant genuinely believes he will be threatened, assaulted, tortured or murdered by an unlicensed money lender or their agents if he returns to the PRC.
Based on the foregoing findings at [32], the question of whether the applicant would or would not be protected by the authorities from being harmed by the unidentified loan shark does not arise for consideration because: the Tribunal is not satisfied the applicant borrowed money from a loan shark, or that he was harmed or that he is at risk of harm or persecution from a loan shark if he were removed to the PRC now or in the foreseeable future.
Based on the evidence before it, the Tribunal is not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed to the PRC now or in the foreseeable future, there is a real chance of serious harm or a real risk of significant harm that would be suffered by the applicant because he is indebted to a loan shark/unlicensed money lender in the PRC.
FINDINGS
Having considered the applicant’s claims individually and cumulatively, and for the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations because the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.
Furthermore, having considered the applicant’s claims individually and cumulatively, 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) based on 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 the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Haag
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.
…

[2021] AATA 804

18 March 2021

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