2007026 (Refugee) - [2024] ARTA 700

2007026 (REFUGEE) [2024] ARTA 700 (29 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2007026
Tribunal:General Member C Dutkowski
Date:29 November 2024

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

CATCHWORDS
REFUGEE – Protection Visa – China – applicants requested the Tribunal to make a decision without holding a hearing – fears harm and threats from gang members – claims made are vague and lacking in detail – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Administrative Review Tribunal Act 2024, ss 9, 106
Migration Act 1958, ss 5, 499
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73
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 7 April 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who the Tribunal accepts are nationals of China, applied for the visas on 23 August 2017. The delegate refused to grant the visas on the basis that there were effective protection measures available to the applicants.
The applicants were represented by Yan Li (MARN 1798523).
BACKGROUND
The applicants are a married couple from Fujian Province. For the purposes of this decision, the Tribunal refers to the husband as the first applicant, and the wife as the second applicant.
The applicants arrived in Australia on [date] May 2017 as the holders of visitor visas and applied for protection visas on 23 August 2017.
In the protection visa application, the first applicant said that he left China because:
I had invested a project and wanted to borrow money from bank. But the process of loan was slow. So I asked friends for help. A friend introduced his friends to me. They lent money quickly, the amount was about RMB 1 million. We thought we could return money within 30 days.
However, when we payback money on time, they told us this is far behind the amount we should payback and the interest is 2% daily, which about RMB 20,000 interest per day. It was beyond our imagination and it is impossible for us to payback those money. Several days after, some local gang members went to my home and threatened us. My house already destroyed by them and our lives were threaten by them.
The first applicant also said that the gang members went to his home, hitting the door at midnight; took valuable items and destroyed others; beat him such as putting his head on the floor with their feet and hitting his back with a chair which caused him to lose consciousness; and told him they would sell his wife to a brothel. He claimed his wife went to the police who said they would investigate but instead a day later a gang member went to their home and threatened to kill them if they went to the police again. They tried to move but were found a few days later and threatened again. He feared that if they went back to China, they would close them in a small room and beat them, kill him, and sell his wife to a brothel.
The second applicant made the same claims, in largely the same wording, as the first applicant. The second applicant said she was shocked when her husband was beaten and the gang members told her they would sell her into a brothel to earn money.
The delegate refused to grant the visas on 7 April 2020 and the applicants applied for review on 13 April 2020.
On 5 November 2024, the Tribunal invited the applicants to a hearing. This invitation advised the applicants that if they requested the Tribunal to make a decision without a hearing, and the Tribunal proceeded to make a decision because it considered the issues could be determined in their absence, this did not guarantee they would receive a favourable decision.
On 22 November 2024, the applicants’ representative advised the Tribunal that the applicants had decided not to attend the hearing. On the same day, the Tribunal asked the representative to clarify if they were requesting a decision on the papers, and the representative confirmed that the applicants would like a decision on the papers.
Decision without holding the hearing
Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) allows the Tribunal to make a decision after considering the documents and things given to the Tribunal and without holding the hearing if any of several circumstances apply. Relevantly, s 106(3) applies if:
a.the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding (s 106(3)(a));
b.the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding (s 106(3)(b)(ii)); and
c.it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding (s 106(3)(c)).
In relation to s 106(3)(a) (and s 106(3)(b)(ii)), the Tribunal notes that it refers to the ‘applicant’ in the singular, raising a question as to whether this provision can apply in the circumstances of this case. The Tribunal is of the view that each review applicant is a party to the proceeding, as both have applied for review in respect of the decision to refuse to grant each of them protection visas.
The Tribunal is satisfied that ‘applicant’ can be read as ‘applicants’. Section 23(b) of the Acts Interpretation Act 1901 (Cth) provides that words in the singular number include the plural and words in the plural number include the singular. The Tribunal considers that the ART Act does not evince a contrary intention. Although s 106(3)(a) refers to the ‘only’ parties being the applicant and non-participating party (in this case, the Minister is taken to be a non-participating party under s 348A(1) of the Migration Act), read in context, this power is a discretionary power enabling the Tribunal to determine a matter without holding a hearing where this course of action is agreeable to every party concerned with the proceedings (provided all of the pre-conditions to the exercise of the power are met). The Tribunal also notes that the alternative provision allowing the Tribunal to determine a matter without holding a hearing where this has been consented to (s 106(2)) appears to be directed at cases where all parties consent, rather than cases where the Minister is a non-participating party and has therefore not consented. The Tribunal considers it would be an absurd outcome if the power to reach a decision without a hearing was never available in combined application cases. Indeed, if s 106(3) did not encompass applicants in combined review applications, then the Tribunal would not be able to make wholly favourable decisions in such matters. Such a gross inefficiency would be contrary to the Tribunal’s objectives.
For these reasons, the Tribunal is satisfied that s 106(3)(a) of the ART Act is met.
As the applicants have requested the Tribunal to make a decision without holding the hearing, s 106(3)(b)(ii) of the ART Act is met.
It also appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties, as required by s 106(3)(c) of the ART Act. The Tribunal has made this assessment having regard to the text, context and purpose of this provision, the issues and circumstances of this case, and the legislative framework and jurisprudence concerning the task of the Tribunal when reviewing a decision to refuse to grant a protection visa.
‘Adequately determined’ is not defined in the ART Act. The ordinary meaning of ‘adequate’, according to the online Macquarie Dictionary (accessed 28 November 2024) is ‘equal to the requirement or occasion; fully sufficient, suitable or fit’ and ‘reasonably sufficient for starting legal action’ in the legal sense of ‘adequate grounds’.
Next, the immediate context of the section indicates that ‘adequately determined’ does not necessarily mean an outcome in the applicants’ favour. Section 106(3)(b)(i) provides an alternative basis to an applicant’s request for making a decision without a hearing where the only parties are the applicant and a non-participating party, and Tribunal is satisfied the issues can be adequately determined in the parties’ absence. This is where the decision is wholly in favour of the applicant. If ‘adequately determined’ meant a favourable decision to the applicant, s 106(3)(b)(i) would be superfluous.
The Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 (Cth) at [77] states that the Tribunal cannot exercise the powers in s 106 if there are issues that the Tribunal considers it cannot resolve without seeking further evidence or submissions from the parties, and that the Tribunal should exercise appropriate discretion and consider whether it is appropriate to exercise the power.
The Tribunal is also mindful of the objectives in s 9 of the ART Act, which include pursuing the objective of providing an independent mechanism of review which ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as proper consideration of the matters before the Tribunal permit.
All of this suggests to the Tribunal that ‘adequately determined’ should be read as allowing the Tribunal to make a decision without a hearing, and thus resolving matters quickly, if this can be achieved, in the context of the issues in question, in a suitable manner and based on the available evidence.
The issue in this case is whether the applicants are 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. A visa application must be refused unless the Minister (or Tribunal on review) reaches a positive state of satisfaction that the criteria for the visa are met: see s 65 of the Act and e.g., Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73 at [16]-[19].
The Tribunal’s task in reviewing the decisions subject to this application is also influenced by s 5AAA of the Act, which provides that it is the responsibility of the applicants to specify all particulars of their protection claims and provide sufficient evidence to establish the claims. The Minister (or the Tribunal on review) does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. This is consistent with the well-settled proposition that it is for the applicant to make his or her own case: see, e.g., Abebe v Commonwealth (1999) 197 CLR 510 at [187].
Furthermore, the nature of the claims in this case are, in the Tribunal’s view, not factually or legally complex.
The Tribunal is satisfied it can adequately determine the issues in this case – that is, determine, on the case advanced by the applicants, whether it is satisfied the applicants are persons to whom Australia has protection obligations – in the absence of the parties.
The Tribunal notes that when the applicants requested the Tribunal to make a decision without holding a hearing, they were on notice that the Tribunal may not be able to make a favourable decision. In addition, the applicants have had limited engagement with the Tribunal during the review process and have not given any indication at any stage that they desired to provide further evidence or information to the Tribunal in support of their case. The applicants are also represented.
Having regard to the above, the Tribunal has decided to make a decision after considering the documents and things given to the Tribunal and without holding the hearing.
REASONS AND FINDINGS
Broadly, the criteria for a protection visa require that an applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on other ‘complementary protection’ grounds (s 36(2)(aa)), or is a member of the same family unit as such a person and that person holds a protection visa of the same class. The relevant law is set out in the attachment to this decision.
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.
The applicants claimed in their protection visa application that the first applicant had invested in a project and obtained a fast loan from some friends of a friend for about 1 million RMB. They claimed that while they paid back the money on time, the lenders told them it was far behind the amount they needed to pay back and the interest was 2%, or 20,000 RMB, per day. The applicants could not pay back this money and gang members threatened them at their home, destroyed their house and belongings, beat the first applicant, and threatened to sell the second applicant to a brothel. The applicants claimed that the second applicant went to the local police, who took down the details and said they would investigate, but then a day later a gang member went to their home and threatened them. The applicants said they tried to move to another city but they were found and told that if they tried to run away they would be killed.
The Tribunal accepts, on the basis of country information,[1] that unregulated lenders or loan sharks, charging exorbitant interest rates and utilising a variety of methods to collect debt, exist in China.
[1] DFAT Country Information Report People’s Republic of China, 22 December 2021, at paragraphs [3.122] to [3.125].
However, the Tribunal does not accept any of the claims by the applicants that the first applicant borrowed money from such a lender, nor that the applicants suffered harm and threats from gang members when they could not pay back the interest owed.
The only evidence the applicants have given to the Department and Tribunal are the written claims for protection as stated in their visa application. The applicants have provided limited detail about the harm they faced in China and the circumstances leading to that harm. The claims made are vague and lacking in detail. The evidence is not sufficiently detailed to enable the Tribunal to reach a positive state of satisfaction that the protection visa criteria are met.
The Tribunal is not satisfied, on the evidence before it, that the first applicant invested in a project and borrowed money from an unregulated lender, nor any person, and that the applicants were unable to pay back the interest owing. The Tribunal is not satisfied that the applicants were threatened; that their house and belongings were destroyed; that the first applicant was beaten; or that the second applicant was subject to a threat to be sold to a brothel. The Tribunal is not satisfied, on the evidence before it, that the second applicant told the police; that the applicants were threatened again; or that they moved to a different city but were found and threatened again.
The Tribunal is not satisfied that the applicants were, or are, of adverse interest to anyone in China.
The Tribunal is not satisfied that the applicants face a real chance of serious harm now or in the reasonably foreseeable future, nor or a real risk of significant harm, on return to China.
The Tribunal is not satisfied that the applicants have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor is the Tribunal satisfied that there are 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 the applicants will suffer significant harm.
For these reasons, the Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions under review.
ATTACHMENT
RELVANT LAW
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.
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.
…