2005393 (Refugee) - [2025] ARTA 1061

2005393 (REFUGEE) [2025] ARTA 1061 (2 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2005393
Tribunal:General Member K. Gillingham
Date:2 January 2025

Place:Sydney
Decision:The Tribunal affirms the decision under review.

General Member K. Gillingham
Statement made on 2 January 2025 at 3.22pm
CATCHWORDS
REFUGEE – protection visa – China – fear of harm from private lenders for own and parents’ debts – borrowed for business investment – threats and violence – inconsistent claims and evidence – repayment agreement and no harm – some repayments made while working in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 March 2020 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 national of China, arrived in Sydney [in] July 2018 on a student visa and applied for a protection visa on 23 September 2019. In his protection visa application he made the following claims.
a.In order to prevent his parents being harmed, he promised to pay the debts and interest that his parents borrowed from private lenders in China and which his parents had no ability to pay.
b.He has not been able to pay those debts.
c.In China he witnessed his parents continuously being harmed by the private lenders and debt collectors who used violence against him and his family. His wife and child lived in fear.
d.He did not seek help in China as private lenders bribe officials and police and he could not be protected by the police.
e.He did not try to move to another part of China to seek safety because due to the Hukou system, he could not move permanently to another part of China without seeking the authority’s grant. When seeking the grant, the corrupt officials would pass on his whereabouts to the private lenders and their associates who would inflict violence against him and his family.
f.As he was not able to make sufficient money in China to repay the debts and interest accrued, he came to Australia to earn money to repay the debts.
g.If he returns to China, he and his family would sustain serious harm or mistreatment inflicted by the private lenders and their debt collectors because he has not repaid the debts and interest. The authorities would not protect them. The applicant and his family could not relocate permanently to another part of China for the reasons set out above.
On 5 March 2020 the delegate refused to grant the visa on the basis that they were not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2) of the Act.
On 18 March 2020 the applicant lodged an application for review of the delegate’s decision (the Application) with the Administrative Appeals Tribunal (AAT).
The proceeding was not finalised before the AAT ceased to operate on 11 October 2024. The AAT was replaced by this Tribunal which commenced operation on 14 October 2024. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transition Act) provides for the transition of AAT matters to this Tribunal. Proceedings before the AAT which were not finalised before it ceased to operate, must be continued and finalised by this Tribunal in a manner that this Tribunal considers is efficient and fair.[1]
[1] Item 24(2) of Part 5 of Schedule 16 to the Transition Act.
The applicant appeared before the Tribunal on 4 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR 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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are 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 of the Act.
If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they 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) of the Act.
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 (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
The Tribunal has before it the Department’s file relating to the applicant’s application for a protection visa; the Tribunal’s file relating to the Application; and other material available to it from a range of sources. This includes but is not limited to:
a.The applicant’s protection visa application dated 21 September 2019.
b.The applicant’s oral evidence provided at the Tribunal hearing on 4 December 2024.
c.A copy of the applicant’s passport issued in China [in] 2017.
d.The delegate’s decision dated 5 March 2020.
e.The applicant’s movements records provided by the Department.
Consideration
I accept the applicant’s evidence at the Tribunal hearing about his family and employment history. He grew up in a village with his parents and [brother]. He commenced, but did not complete, senior high school. He was employed in numerous jobs in China including working in [a product 1] factory, [a product 2] factory and a factory that manufactured [product 3]. For a short period he and his cousin owned a [business 1] in [Country]. I also accept the applicant’s evidence that his mother-in-law gave him 200,000 renmimbi to travel to Australia and study in 2018.
I accept the applicant’s evidence that he and his parents, brother and mother-in-law borrowed money from unlicensed private individuals who lived in their village. For the purpose of this determination, the Tribunal is focused on the loans to the applicant and his parents only. The applicant has not made any protection claims relating to the loans to his brother or mother-in-law.
I also accept the applicant borrowed some money from his mother-in-law but she does not require repayment. The applicant has not made any protection claims relating to loans from his mother-in-law
I accept the applicant’s evidence that:
a.In 2013 or 2014 he borrowed about 300,000 renmimbi from the lenders and his parents borrowed about 500,000 to 600,000 renmimbi to invest in a [business 2] in China. The loans were recorded in written contracts. The interest rate was 1.2% per month and each year he and his parents were required to pay interest only.
b.He and his parents experienced difficulty making payments under their loans when the [business 2] failed.
c.In about February 2017 the applicant agreed to have his parents’ debts transferred to him. His original debt and his parents’ debt were consolidated into one loan (the Consolidated Loan). The lenders acknowledged that the applicant may have difficulty repaying the Consolidated Loan. By way of verbal agreement made at his parents’ home, the lenders agreed to waive the interest on the Consolidated Loan and required repayment of the principal amount only (about 800,000 to 900,000 renmimbi). The lenders also agreed that there was no fixed date for repayment and that the applicant would make repayments when he had the money to do so.
d.By the time the applicant departed China to come to Australia in early July 2018, he had not made any payments under the Consolidated Loan. At the Tribunal hearing I asked whether the lenders had an issue with this and the applicant replied ‘No’ because they had a verbal agreement that the applicant would pay when he could.
e.The applicant’s wife joined him in Australia about a year after he arrived here. The applicant gave evidence that if he goes back to China, his wife will go back with him. Their daughter (now aged [Age] years) has always remained in China and attends boarding school. She stays with the applicant’s parents or his mother-in-law on weekends.
f.The lenders have never been violent towards the applicant, his wife or daughter.
g.His parents are well and still living at their house in the village. The lenders have not caused trouble for his parents since he took over their loan in early 2017.
h.The lenders never engaged debt collectors in respect of his parents’ loan. The applicant has not alleged that the lenders ever engaged debt collectors in respect of his original loan or the Consolidated Loan.
i.Since he has been in Australia, more than 200,000 renmimbi has been paid towards the Consolidated Loan so that the debt has been reduced to about 700,000 renmimibi. The money for the repayments comes from a couple of sources - his wife’s earnings from her employment in Australia and dividends which the applicant receives from an investment in his uncle’s [business 3] in China.
j.Since he has been in Australia, the lenders have contacted the applicant by WeeChat and asked him for payments. He told them he does not have the money and will pay as soon as he does. They last contacted him at the beginning of this year to ask for repayment.
Whilst I accept these aspects of the applicant’s evidence I do have concerns about some of his other evidence and claims.
Notably, the applicant’s evidence differed in a number of significant respects from the protection claims set out in his visa application. In his application he claims that he is required to pay the loan amount and interest but at the hearing he gave evidence that the lenders agreed to waive the interest and he is only required to repay the principal amount. In his application he claimed that the lenders had used violence against him and that his child and wife lived in fear. At the Tribunal hearing he gave evidence that the lenders had never been violent towards him, his wife or their daughter. When I raised these inconsistencies with the applicant at the Tribunal hearing, he indicated that he did not wish to comment.
The applicant’s claims and evidence relating to the interactions between his parents and debt collectors also varied. In his protection visa application the applicant claimed he witnessed his parents continuously being harmed by the private lenders and debt collectors. In contrast, in his evidence at the Tribunal hearing the applicant said that the lenders never engaged debt collectors in respect of his parents’ loan. The applicant’s evidence regarding the interactions between his parents and the lenders changed during the hearing.
a.Initially the applicant said that the lenders went to his parents every day and asked them to repay the loan. They almost had a fight.
b.Later in the hearing the applicant said that before he took over his parents’ debt the lenders went to his parents’ place every two to three days. They got physical. They had a fight and someone was almost killed.
c.He then said that there were two or three fights.
When I raised these inconsistencies with the applicant he said he had told his lawyer what happened but he does not know how the lawyer put together his claim. I do not accept this explanation. It does not explain the inconsistencies in the applicant’s evidence at the Tribunal hearing (as distinct from the inconsistencies between the claims in his protection visa application and evidence at the hearing). Moreover, as I put to the applicant at the Tribunal hearing, his explanation is inconsistent with the applicant’s earlier evidence to the Tribunal that everything in his protection visa application was true and that he had provided information to his solicitor who completed the protection visa application in English and then read back the completed form to him in Mandarin.
The applicant also gave evidence that on one occasion one of the lenders hit his mother on the head and she went to a hospital in Fuqing City with minor concussion. According to the applicant, the incident was reported to the police who told them to deal with the matter themselves which they did, by the offending lender agreeing to pay his mother 5,000 renmimbi. Whilst I would not usually expect loan sharks to agree to pay creditors compensation for physical injuries they may cause them, I am prepared to accept that the applicant’s mother was injured by one of the lenders and received minor concussion for which the offending lender compensated her.
At the Tribunal hearing the applicant gave evidence that he fears there is a risk that he would be harmed if he returns to China. He is concerned that the lenders will probably find debt collectors from the underworld who physically hit and attack people and they will find him. When asked, he said that the Chinese authorities can protect him if he returns to China but it will be difficult because ‘you don’t know when they are going to knock on your door’.
I put to the applicant relevant country information available at the time of the Tribunal hearing which indicates that effective protection is available in China from loan sharks[2] and that there are large scale police operations, as well as prosecutions, against loan sharks.[3] When I invited the applicant to comment, he indicated that he did not wish to say anything. I note that since the hearing, the Department of Foreign Affairs and Trade (DFAT) has published an updated Country Information Report People’s Republic of China dated 27 December 2024. As I have not made any findings based on the current or previous DFAT Country Reports, I have not invited the applicant to comment on the current DFAT Country Report.
[2] Department of Foreign Affairs and Trade Country Information Report People’s Republic of China (December 2021) at 3.125
[3] Ibid at 3.124 and 3.123
The applicant also gave evidence that if he is returned to China he would have to go into hiding, ‘probably to stay in another province for a short period of time’. When I asked why he could not relocate somewhere else permanently, he said: ‘If you live somewhere else those [debt collectors] will eventually be able to find you. I don’t know. Through other people they try to locate you. I don’t know’.
I raised with the applicant my concern about inconsistencies between the claims in his protection visa application and his oral evidence regarding reasons why he could not relocate. In his application the applicant claimed he could not move to another part of China to seek safety because due to the Hukou system, he could not move permanently to another part of China without seeking the authority’s grant. When seeking the grant, the corrupt officials would pass on his whereabout to the private lenders and their associates who would inflict violence against him and his family. The applicant made no reference to the Hukou system or the need for ‘the authority’s grant’ in his evidence before the Tribunal. When I asked the applicant whether he wished to comment on this, the applicant indicated that he did not wish to say anything.
REASONS AND FINDINGS
The issue in this case is whether there is a real chance the applicant will suffer persecution if he returns to China or whether there is a real risk he will suffer significant harm if he is removed from Australia to China. For the reasons set out below, the Tribunal has determined that the decision under review should be affirmed.
On the basis of the applicant’s passport and his oral evidence before the Tribunal, I accept that the applicant is a national of China. For the purpose of s 36(2)(a), I accept that China is the country of nationality. For the purpose of s 36(2)(aa), I accept that China is the receiving country.
I have carefully considered the applicant’s protection claims and evidence. I have set out above those aspects of the applicant’s protection claims and evidence that I accept.
Based upon the applicant’s evidence to the Tribunal (set out above), I find that the applicant, his wife and child have not been harmed by the lenders or any debt collectors. They did not and do not live in fear of the lenders or debt collectors. I find that the lenders only require repayment of the principal amount of the Consolidated Loan. They do not require payment of any interest.
I accept the applicant’s evidence that the lenders pressed the applicant’s parents for repayments under their original loan and caused minor injury to the applicant’s mother before he took over their loan. I do not accept that the interactions between the lenders and his parents have been more serious than that. As set out above, the applicant’s claims in his protection visa application and his evidence on this point were inconsistent. I find that the applicant embellished and exaggerated the seriousness of the interactions between his parents and the lenders. I also accept the applicant’s evidence that the lenders never engaged debt collectors in respect of his parents’ loan and that they stopped pressing his parents for payment after the applicant took on their debt.
I find that the applicant can return to China and will be able to make repayments under the loan from time to time when he has the money. It has been more than seven years since the applicant took on his parents’ loan and even longer since he took out his own loan. On the applicant’s own evidence, I find that the lenders (who are local villagers) have been very understanding towards the applicant. Recognising that he has difficulty in repaying the Consolidated Loan the lenders agreed to waive interest and allow the applicant to make repayments on the principal amount when he can. There is no fixed date for repayment of the loan. The lenders have not harmed the applicant, his wife or their daughter. The lenders have not harassed, threatened or hurt the applicant’s parents since he took over their debt more than seven years ago in 2017. Since being in Australia the applicant has been contacted by the lenders but they have made no threats towards him. When I raised these matters with the applicant at the hearing, he indicated that he did not wish to comment.

I find the applicant’s concerns that if he returns to China he may be harmed by debt collectors engaged by the lenders, to be unconvincing. As set out above, the lenders have been very accommodating towards the applicant regarding his debt. The lenders never engaged debt collectors to act against him or his parents in the past. When I raised this with the applicant at the hearing, he indicated that he did not wish to comment. I do not accept that there is a real chance that the lenders would engage debt collectors or that the lenders would seriously harm the applicant if he returns to China in the reasonably foreseeable future.
Does the applicant satisfy the refugee criterion for protection?
For the reasons outlined above, I find that the applicant has not experienced harm in the past connected with the loan. I find that there is no real chance that he will experience serious harm from the lenders if he returns to China now or in the reasonably foreseeable future.
Does the applicant satisfy the complementary protection criterion for 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). For the same reasoning, I find that there is no real risk that the applicant will suffer significant harm (as defined in s 36(2)(2A) of the Act) if he were to be removed from Australia to China now or in the reasonably foreseeable future.
Conclusions
For the reasons given above, I am 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), I have considered the alternative criterion in s 36(2)(aa). I am 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 the criterion in s 36(2).
The Tribunal affirms the decision not to grant the applicant a protection visa.