2006557 (Refugee)

[2022] AATA 1273

2006557 (Refugee) [2022] AATA 1273 (22 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2006557

COUNTRY OF REFERENCE:                   China

MEMBER:Nora Lamont

DATE:22 March 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 March 2022 at 1:03pm

CATCHWORDS
REFUGEE – protection visa – China – money lenders – real-estate developer – state protection – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 April 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 17 August 2017. The delegate refused to grant the visa on the basis that are effective protection measures available to the applicant in the receiving country and that they do not have a well-founded fear of persecution. Therefore, the applicant is not a refugee as defined in s5H of the Act and does not satisfy the criterion in s36(2)(a) of the Act.

3. The applicant appeared before the Tribunal on 18 March 2022 at 10:30 am via telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   Background

4. The applicant was born on [date] in [City 1] Shandong Province China. He is married and during the hearing he said he also has a child. He provided a written statement with his Protection Visa application detailing his claims for protection as follows:[1]

   In March 2015, I contracted a local real estate developer to build a [specified] project. The total amount of the project was 300,000RMB. I organized a medium-sized However, the developers refused to pay the rest of 200,000 RMB. Therefore, I cannot pay the project team the salary and had to borrow money from usurer and friends. I contacted with the developer for so many times but they refused to pay me for the reason that the houses that I built could not be sold and they did not have money to pay me.

   I wrote letters to the Industrial and Commercial Bureau and Complaints Office of [City 1] and other relevant departments, no one wanted to help me. I was beaten by a group of gangsters employed by the developer. My head Was broken bleedingly and slight concussion. I even loss my hearing for half a year. I was the victim of vituperative remarks and other personal attacks.

   My family has also been threatened by the gangsters. They came to my home to smash the windows and frighten my parents and his wife. We were not allowed to go to the Council to report it and the whole family lived in fear. I went to the local police to appeal for the help and nobody wanted to help us. They told me that the developer was supported by some government officers. And they also made some investment in this project. They deliberately delayed the project payment in order to develop the second real estate projects, and to obtain profits.

   As for some small companies like my company, they took the method of fraud to obtain approximately free installation. I borrowed money from usurer and they wanted to possess my home illegally. If I did not agree with them, they would do something worse to me. I felt that my life would live in fear, thus I had to escape from China and seek protection from Australian government.

   [1] [Source deleted]

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. 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

11. At the hearing I asked the applicant where he lived, and he said he lived at [Address 1 in] NSW and he has been living there for four years. He said he lives with one friend. He said he has his own [specified] business, and he does [specified work]. He said he learnt [the trade] in China.

12. I asked him about his family in China and he said he has an older brother and his parents who remain in [City 1]. He said his parents are peasants and do farm work. He said his wife lives in [City 1] and is a [Occupation 1].

13. I asked him why he came to Australia in 2017? He said because of a project I didn’t get paid and so I ran away. He said he had a [specified] project, and he was supposed to be paid 300,000 RMB but he only got 200,000 RBM. He demanded the money, but it was rejected. He had to borrow money to pay wages. I asked him why he said in his application he was employed by [Company 1]and how did he have time to do this project if he was an employee? He said he was working as a [Occupation 2] and did the project. He said he was [completing specified work] to the building and complying with the standards and they did not point out that it wasn’t compliant with standards.

14. He said he wasn’t building the building he was just contracting for [a specified aspect]. He said there was two big buildings they were building [number] stories high in [City 1]. I asked how he came to be the contractor and he said he was like a friend referring on social networking, he learnt the skill and invited people to dinner. He said he had 6-7 people working with him.

15. I asked if he signed a contract with the real-estate developer and he said he did. I asked him why he didn’t provide any documents to the Department or the Tribunal? He said he didn’t think it was important. I asked what the name of the real estate developer was, and he said [Name 1]. I asked why a real-estate developer would have a name with refrigeration in it for? He said he got the job through the refrigeration person. He said they gave him 10,000 to 20,000 up front. They only paid him 10,000-15,000 per week or close to 100,000 and he had to use his own money.

16. He said he borrowed money for a month. The interest was high. I asked him why he said he put his own money into it but now he was saying he borrowed money? He said he initially borrowed money from friends, and he needed to borrow money from money lenders. I asked how much he borrowed from his friends and he said around 40,000. He said he has paid it back when he borrowed from the money lender. He said he used 40,000-50,000 of his own money he saved.

17. I asked him how he found the money lenders? He said everyone knows them and they don’t have a name. His brother found someone and referred him to them. He said they arranged a location, and they gave him the money in cash. I asked if he signed a contract and he said no. He said it was because they knew him. He said he borrowed 100,000 and only got 80,000. They took the commission and said he had to pay them back the 100,000 in 10 days. He said he couldn’t afford to pay them back as with interest it would be 300,000. Then people started following him and beat him up.

18. He said 4-5 people beat him on the street. The other time he was at home and the whole family was disturbed. There was always 4-5 men and they would say pay us back the money. He said he went to the police they inspected around then left. They said they don’t get involved with money lenders and the police had a relationship with the money lenders. I read the applicant what DFAT states about police investigating crimes:

    5.3 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.[2]

    The applicant responded that he was from a small area, so the police just ignore him. I then went on to read the applicant more of the DFAT report that states there is effective protection from the government for people who have borrowed money from money lenders:[3]

    3.122 Usury has a long history in China. According to the South China Morning Post, ‘demand for private loans’ is strong today. This is due to small businesses in particular being unable to access enough credit from large banks. In modern times, loan sharks might be known by different names such as ‘private finance companies’ and are more likely to be active in poorer, rural areas.

    3.123 Some protection is available to debtors. ‘Usurious loans’ are prohibited under China’s Civil Code, which came into force 1 January 2021, but the interest rate considered usurious is not defined in that legislation. The courts have capped interest rates at four times the official rate. A number of highly publicised violent crimes related to debt collection were discussed in the media in 2017 with police making arrests and people being convicted for serious crimes such as assault and sexual assault related to debt collection. DFAT is also aware of a 2018-20 crackdown by authorities on usury, which was highly public, and which saw the prosecution of a large number of people.

    3.124 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. 3.125 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.

    [2] DFAT Country Information Report People’s Republic of China December 2021 page 36.

    [3] DFAT Country Information Report People’s Republic of China December 2021 page 30-31.

19. The applicant said that what happened to him was quite common a few years ago and he is from a distant area far from the government. I asked him what he did, and he said he had to run away. I asked why he ran to Australia and not some other part of China? He said if he ran to other cities, they would find him and his family. But I said you left your family in China and have they been harassed? It was at this point the applicant said he returned the money to the money lenders. He paid them back the 300,000. He said his wife gave them the money. He said his brother helped pay them back, but he still owes them a million.

20. I asked what happened with the developer and he said he never got the money, and his wife carried their baby there and demanded the money, but they still wouldn’t pay.

    424AA

21. I put adverse information to the applicant during the hearing formally under 424AA and explained that I was raising it not because I had made up my mind but to be fair to him and give him an opportunity to comment on it.

22. I put to the applicant under 424AA that there were 7 related cases to his that had been identified all with the same address as his: [Address 1] yet he had told me that he lived there with one friend. He said that initially there was a lot of people living in the house, but they moved. I accept that the people in the house may have moved, however I have considered that there was a large group of people living in the house all putting in protection visa applications.

23. I also put to the applicant that in his statement he said that he was beaten by a group of gangsters hired by the developer but during the hearing he was telling me it was the money lenders who beat him. He said it was a slop of the tongue and a mistake. I find this to be implausible as there is a big difference between one group and the other. It also was not in his written claims where he said I borrowed money from usurer and they wanted to possess my home illegally. If I did not agree with them, they would do something worse to me.

24. I also told him that he said in his written statement that he made complaints to the Industrial and Commercial Bureau and complaints to the city of [City 1], yet he made no mention of this during the hearing. He said I never asked him about it. I said we did discuss what was happening with the developer and you did not mention it. He then said that the developer had people beat him. I asked why he would do that if he owes you money? He said he found a person to demand the money, so they beat him. He then said that the developers were the first to beat him and that the money lenders were the group that beat him later.

25. I asked him why he said he borrowed money to start the business and now he was saying you borrowed it later? He said that he borrowed it to pay the wages. He said the developer and the money lender belong to the same group of people. He said other contractors had problems as well.

26. I asked him what would happen if he returned to China and he said he will be harmed by the money lenders. If he went back, he would continue to demand the money from the developer. He said he will be physically harmed and suffer if he was returned.

    Findings

27. For the reasons that follow I have a number of concerns with the applicant’s claims to owe money to money lenders and being owed money by a developer who sent gangsters to beat the applicant up.  

28. First there are inconsistencies between the applicant’s written claims to the Department and oral evidence to the Tribunal in some respects. For example, his written claims are that the developer hired gangsters to beat him up, yet at the hearing it was the loan sharks who beat him, then towards the end of the hearing he said that both groups had beat him.

29. Second, he did not mention at any time during the hearing that he sought recourse from the government agencies yet that was in his written claims. When I asked him about this, he said I didn’t ask him about it. I did ask him to explain his claims and it was up to the applicant to give the Tribunal his claims in full. I do not accept that he expected the Tribunal to put forth his claims for protection.

30. Third, the applicant said he ran away because he owed the money lenders yet later in the hearing, he said that he paid them back the 300,000. The applicant was also vague about when he borrowed the money, originally it was at the beginning of the project then it was later on after the project started.

31. Fourth the applicant was given adverse information I put to him under 424AA, and he was inconsistent. He claimed he lived with one person yet there are 7 applicants from the same address. I also put to him the above information that he put down the developers beat him yet then during the hearing it was the money lenders then both.

32. Given these concerns, I do not accept that the applicant was a credible witness. For the reasons set out above I do not accept that the applicant borrowed money from money lenders, that they beat him several times and forced him to flee to Australia. I accept that the applicant had some dealings with a refrigerator company, and they may not have paid him, but I do not accept the developers had gangsters beat him because they owed him money.

33. Given these findings, the Tribunal does not accept that if the applicant returns to China, he will face a real chance of persecution from money lenders, the developer or anyone associated with them. The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).

34. Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to China, there is a real risk that the applicant will suffer significant harm from the money lenders, the developers or their associates, The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

35. 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).

    DECISION

36. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Nora Lamont
    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.

    …