2007497 (Refugee) - [2024] ARTA 631

2007497 (Refugee) [2024] ARTA 631 (18 November 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Home Affairs

Tribunal Number: 2007497
Tribunal:General Member A. McMurran
Date:18 November 2024

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

Statement made on 18 November 2024 at 11:11am

CATCHWORDS
REFUGEE – protection visa – China – fear of harm from loan sharks – invested in work project which went bankrupt – borrowed to pay workers – damage to work project, threats and beating – inconsistent claims and evidence – long history of low-level debts – wife arranged loans and is slowly repaying – no evidence from wife or documentary evidence of work projects provided – no harm to applicant, wife or family – applicant’s long residence in another country not declared in application – country information – police actions against loan sharks – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), (a), (2), 5J(1), 36(2)(a), (aa), (2A), 65, 359A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA [1989] HCA 169; (1989) CLR 379
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
The review

This is an application lodged 26 April 2020 for review of a decision made by a delegate of the Minister for Home Affairs on 24 April 2020 to refuse to grant [the applicant] a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The delegate refused to grant the visa on the basis that there were no impediments to the applicant accessing State protection against possible criminal activity by underground banks and illegal moneylenders. Because of available effective protection measures, the delegate found the applicant did not have a well-founded fear of persecution and was not a refugee as defined in s 5H(2) of the Act and therefore did not meet the s36(2)(a) criterion for protection.
The delegate further found that there were no substantial grounds for believing that there is a real risk on returning to China that the applicant will suffer significant harm. Accordingly, s36(2)(aa) of the Act was not met and the delegate found that Australia does not have protection obligations towards him.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant claims to be a [Age] year-old national of China from the southeastern province of Fujian. He arrived in Australia on a visitor visa [in] May 2017 which ceased on 15 August 2017. He applied for the visa on 29 June 2017. The applicant has remained in Australia since arrival and currently holds a Bridging visa A.
The applicant has no other relatives in Australia. His parents are deceased. He is married with [children], aged respectively [Age].His family live in Pingtan City Fujian Province, China. The applicant was assisted in completing his application form by his lawyer in Sydney. He speaks, reads and writes Mandarin and claims to have only Chinese ethnicity.
His passport expired on [in] 2023. He claims to have obtained that passport from the Chinese embassy in [City 1, Country 1] [in] 2013 . He states in the application form however that he has not travelled before to any other country, other than to Australia. He describes his work history simply as ‘manager’ for [Company] in Pingtan City, Fujian province. His highest level of education was attending High school in Pingtan, completed in [Year].
In Australia, he has an income from doing casual work [doing job tasks] as referred by friends for 2 to 3 days per week on average. He sends money home from what he has left over after living expenses. His wife in China does not work.
Tribunal process
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. This application falls into that category.
The applicant was represented from the outset by a lawyer. The Tribunal has not received any formal verified notification of withdrawal by the representative or change of contact details for the applicant.
On 23 April 2023, the AAT reached out to the applicant with a standard request for pre-hearing information to update the applicant’s claims and relevant circumstances. The same day, the AAT emailed the applicant with information about available legal help for refugee applicants and contact information. The applicant did not respond.
On 25 September 2024, the AAT sent the applicant an invitation for hearing. The invitation informed the applicant that the AAT had considered the available material, but was unable to make a favourable decision on this information alone. The invitation informs the applicant how to respond, and directs the applicant to relevant practice directions and preparation tips for hearing, including the opportunity to provide further information.
On 21 October 2024, the hearing date was re-scheduled and the applicant notified by the Tribunal. The applicant responded, accepting the invitation, but no additional information was submitted.
The applicant appeared on his own before the Tribunal on 11 November 2024 at Sydney for an in-person hearing to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. No issues were detected concerning the interpretation and communication with the interpreter and none were raised.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal in place of the AAT in order to finalise the review.
Applicant’s claims – the application form
The applicant claims to have left China to “avoid being hurt and persecuted by debt collectors”.[1]
[1] At Q 89 on p36
The applicant’s claims as they appear from the lodged application form[2] state:
“When I came back to China from [Country 1], I was a contractor for [work projects] in [Location]. My project went well in the first place. However, because I refused to bribe local government officials, they started looking trouble. I failed to deliver my project on time. Without completing my project, I couldn't get money to pay salaries to workers and repay debts to loan sharks. The interest of my debts grew higher and higher and it was far beyond my repaying capacity. Loan sharks started damaging our [project] and my home. They threatened and even beat me. I had no choice but to flee back to my hometown. However, I didn't expect that loan sharks came to my hometown and came after me. They threatened to hurt my family and I if I didn't pay money back to them. I had to come to Australia to avoid those loan sharks.”
[2] At Q 91 on p 37
In summary, he states he is afraid to return to China for fear of being harmed by loan sharks whom he cannot repay. He believes police will not protect him and he will have no help. He claims debt collectors will pursue him regardless if he relocates in China.
Evidence before the Department
The applicant was not invited to an interview at the Department. He submitted his application form with a copy of his passport and attended an identification test on 20 September 2017. No issues were raised concerning his identity and nationality.
No other information or documentation was submitted with the application. There were no witness statements, photographs or corroborating documents produced. The Department delegate made the decision under review based on the application form alone, and by reference to relevant country information. Relevant provisions in the Act and country information were cited.
Evidence before the Tribunal
The applicant made no pre-hearing submissions. Nothing was submitted by his representative beforehand. The applicant appeared alone and relied entirely upon his oral statements and argument.
Other than the oral evidence, the Tribunal had the same material for consideration as was before the delegate, together with updated country information since 2020 about China involving current activity around illegal lending and debt collection.
The Tribunal has also had access to the Department file and the Tribunal file, the Act and Regulations, Department Policy, and the written claims as set out in the application form. The Tribunal is also required to have regard to published DFAT country information, together with the applicant’s oral evidence from the hearing and relevant court authorities. The Tribunal may also consider and reference any other relevant research it conducts on the Internet.
The hearing
The Tribunal explained the process and legal requirements for being a refugee under the Act The applicant was asked if he was ready to proceed or required any professional assistance.
The applicant said he was read to proceed and did not require further time to prepare submissions or to seek assistance, and no application was made to either defer or adjourn the review. At the end of the hearing, the applicant was given an additional short period to produce a document he wanted the Tribunal to see. On 13 November 2024, as directed, the applicant produced a copy of that document, being a mortgage extract from a Chinese bank.
The Tribunal asked if he wanted his representative to be available. He explained his representative had informed him he was unable to attend and he could conduct the hearing himself. The applicant wanted to continue.
The Tribunal explained to him that he must establish a well-founded fear of persecution if returned to China, in accordance with the definition of a refugee under Australian law. The applicant agreed his claim to be a refugee arose from his fear of reprisal from a debt collector in China, and his membership of that broader group in the Chinese population who were being extorted by unscrupulous and illegal loan activity. He submitted that he makes no claim based on any race, religion, nationality, or personal political opinion issue.
He was asked if he understood the delegate’s decision. He said he had only been told about it “last month” when his agent told him about the hearing date. He explained he had not been in touch with his agent and was unaware the Department had refused his application. The Tribunal put to him he had initiated this review application more than four years ago and must have known of the decision. He said he could not remember. He said his agent had not told him and he was unaware of the reasons for the decision until “about a month ago”.
The Tribunal explained to him in summary that the Department had found that he did not have a well-founded fear because there were no substantial grounds for believing that he would be seriously harmed on returning to China. This was because protection was available to him from State authorities in China where the activity in which he was involved was illegal and was the subject of a crackdown by Chinese authorities.
The applicant was reminded of what he had stated in his application to the Department. He thought the statements were true and did not need to be corrected. He did not wish to amend or add anything to his statement.
He was asked about his personal history. He explained that he had been living in [Country 1], on his own, since 2002, in [City 2]. He had returned to China in 2013. He said he had worked in [Country 1] in a [workplace] as [an occupation], and that he had obtained a relevant [Country 1] accreditation for the role. He provided the name of the [workplace]. He said he had obtained [Country 1] residency. He produced for the Tribunal his original [Country 1] driver’s license and residency permit. His residency card had expired [in] May 2020.
The loan history
He was asked whether he could return to live in [Country 1]. He explained this was no longer possible because he had borrowed money from a friend in [Country 1] which he could not repay. He explained he had undertaken a “[work] project with my friend” and had been “defrauded”. He said he had to pay money “to pay my workers”. He explained the [work] project was in China “in [Location]”, and because he had not been paid for the project, he still had to pay his workers and had to “source funds” to borrow for that purpose.
He used his family savings, which “was not enough”, so “we mortgaged our family property in China”, and that was still “not enough”. The applicant called upon his friend in [Country 1] to lend him money, but he still needed more to pay the workers. He then resorted to illegal loan sharks in China. He said it was difficult in China to get loans approved from the bank. He already had a mortgage from the bank which he could not increase. He thought the total he owed was about 2 or 3 million yuan.
He explained that he had returned to China in 2013 and the [work] project had commenced in 2014. He said initially he had invested about 1.2 million yuan. This included about 280,000 yuan in personal savings. The rest came from his [Country 1] friend. He said he loaned him “around 650,000 yuan”. He said he also borrowed “around 1.2 million” from the loan shark. He could not remember exactly. He said the bank loan was for 500,000 yuan secured by mortgage.
It was put to him that on his figures, he had borrowed from 4 sources (his savings, the bank, his [Country 1] friend, and the loan shark) a total of 1.9 million yuan. He thought the total was actually 2.2 million yuan. He said he could not remember exactly because his mind was “chaotic” but that he thought he borrowed about 2 to 3 million yuan. But he was not sure. He said the borrowing all took place in 2015 and 2016.
He was asked what he owes now and he thought “about 200,000” yuan. This figure made no sense on the evidence just given. When asked, he could not say exactly what the amounts were any more and when he had called his wife before the hearing, he said she would not tell him. This was because she told him she did not want to put pressure on him. He said for his part he was just “guessing” and did not really know. He said his wife, [Ms A], had “obtained all the loans, she was the one facing the lenders”. He said he had not been involved “directly” in the loan transactions, except for the loan from [Country 1]. He said he did not want to return to [Country 1] as he had not paid his friend back. He said he was not sure he could return to [Country 1] even if he wanted to because his residency had expired and he would have to reapply. He said he had approached his former employer in [Country 1] about returning, but the former employer “did not have the time” to make an application for him.
The applicant was asked why he had remained in [Country 1] for so long without his family. He initially said because he did not have residency and they could not accompany him. When prompted, he responded that the reason he went to [Country 1] in the first place in 2002 was because he had debts in China which he could not repay. He said at that time he agreed that in 2002 he was “running away from debt collectors” in China. He said at that time in 2002 he owed about 100,000 yuan, which he thought was “not that much”, but he needed to escape from the debt collectors. He said he had paid off those debts while he was working in [Country 1]. He was asked why he had not included this information in his application before. He said he had not told his representative.
The applicant was asked about his wife’s circumstances in China, as she had done all the borrowing. He said she was safe, and still living in the village in Pingtan. He said it was where they had been living when the loans were arranged. He said the debt collectors were pursuing her. He was asked if his wife had been harmed. He said they were threatening “us”.
The loan sharks
He was asked for any history with the debt collectors, whom he did not identify. He said once in 2016 “a group of people” came to our house. He was not home. His wife reported that they had threatened her and told her if she did not pay they would harm her children. At the time, his eldest [child] aged [Age] had left home while his [younger] children aged [Ages] were still there. He was not sure if the children were at home at the time. His wife told him that the debt collectors were asking for money and that if “we don’t pay them, they will harm our children”.
The applicant said he had only met the debt collectors himself once, “in the lunar New Year”. It was in 2016. He said they had come to his home when they knew he was there. He told them that he would be repaying them, so they left them alone and did not harm them.
When pressed about that one occasion when he met them, he said there had been some “pushing and shoving”, but there was no beating, and they did not damage any property. It was put to him that was not what he had said in his application, which was read back to him. He said his representative “must have misunderstood me”. He said where the application was inconsistent with what he was now telling the Tribunal, it was because his representative had not understood him and must have “made a mistake”.
Other information and threats – has he or his family been harmed?
He was asked if there was any other information about why he was afraid. He repeated that because he had promised to repay, the loan shark had not harmed him.
After the people had come to his home, he said he had left the country and does not know what is happening since, because his wife will not tell him. He agreed the conversation with debt collectors at his home took place sometime in 2016, but he did not depart until May 2017. He did not explain the delay.
He said his wife has remained living in Pingtan and has not been harmed because she has been slowly making payments. He said, “we keep paying by borrowing money from other friends to use one debt to pay another.”
It was put to him that while his wife was making payments, they were not being threatened by the loan sharks. He agreed, but said that they would still demand we repay more money, as the interest keeps accruing and they threaten us if we miss a payment. He agreed that other than being threatened from time to time, no one in their family has been harmed. He does not think the children know, and his wife is dealing with it.
He was asked why he has not returned to help her. He responded that “I couldn’t go back because I am afraid of those debt collectors coming to me”.
Concerns raised in summary- Section 359A
The Tribunal explained that it must put to him things that it found difficult to accept and which might be the reasons for affirming the decision and to give him an opportunity to respond to those concerns.
Firstly, the Tribunal put to him a summary of what it understood from his evidence. The Tribunal explained that he had told the Tribunal of a long history of owing people money, since before 2002. He had managed to repay some smaller debts. A friend had convinced him to become an investor in a [work] project in China and put in some money for a [work] project. He was not a contractor for the project himself. He agreed to put in money most of which his wife had borrowed. He had borrowed some from a friend in [Country 1]. His wife had arranged a loan from a bank and from loan sharks. He had not explained how all the money was used, except to pay “the workers”, and to put more money into the project. The project went bankrupt in 2016, his friend defrauded him, and he had received nothing back. The project was real as he had inspected it 4 or 5 times over two years. He agreed this short summary was correct.

Secondly, the Tribunal was concerned that his story was ‘confused’ and the figures he referred to as current debts were ‘unreliable’ and not accurate. His hearing narrative was quite different to what had been set out in his application. For example, he was not a contractor, but an investor. He had not been harmed by anyone at all because he had promised to make repayments. His wife had arranged the loans, not him as claimed, and she has been repaying the money back slowly. It was put to him that his personal fear of the debt collectors was not ‘well-founded’.
He conceded in response that he did not know what was happening in China “in my home” now. He did not want to say anything or respond further.
Thirdly, the Tribunal put to him that he could go to Police in China, because the private lending activity by loan sharks is illegal and there is a current crackdown which is on-going. He responded that he did not want “to put my family in danger” because the illegal lenders will then “harm my family”. He thinks police officers will not protect him from private lending.
Fourthly, the Tribunal then put to him country information about China[3] and its government campaigning against organised crime since 2017. In particular for gambling, extortion and illegal lending. Police were prosecuting a large number of individuals. The Tribunal read to him from country reports from DFAT and relevant criminal prosecution details and that the Australian government understood that in 2024, the Chinese government was intensifying its crackdown on organised crime, which included extortion and illegal lending activity which involved significant unfair interest repayments. It was put to him on the basis of the available country information that the relevant State authorities in China would assist him.[4] The applicant responded that he accepted that information but that they “couldn’t obtain loans from elsewhere” except the loan sharks, and they would not help him because his loans were “private”.
[3] DFAT report on China from 22 December 2021
[4] Department of Home Affairs ‘Common Claims’ Country of Origin Information Service 23 July 2024
He believes law enforcement would not help him because the lending he was involved with was illegal. He said also he would rather not take the risk of being harmed by the loan sharks because he was reporting to police. That was so, even though he had not been harmed, or his family, and notwithstanding the police are available to intervene and take action against the loan sharks and could offer protection. The Tribunal explained that it was difficult to accept his explanation for his fear when there was available State protection.
The applicant was asked to comment and did not disagree. He maintained however that he is still in fear of returning.
Fifthly, it was put to him that he did not need to relocate anywhere else in China because his family had remained safely living in Pingtan City and he could continue to do so.
He agreed that was the case.
Anything else submitted?
He was asked for any further information he might have for consideration, which he declined to offer. He said this was because he could not remember all the details himself from his history. His wife had conducted all the negotiations with the loan sharks and he was “not involved”. He believed there was no other documentation, and that his wife had obtained only an IOU note at the time she obtained a loan from them in 2015. He said she may have borrowed more money from somebody else but “I don’t know”. As his wife does not work, he said she has to keep borrowing money to repay money already borrowed.
It was put to him that this situation could not continue indefinitely and he agreed at some point they would have to go to the police. He agreed they have not attempted to do so as yet and is not aware his wife has done so.
The Tribunal repeated in summary those inconsistencies referred to above in his oral evidence from the application form, which had been explained to him. The Tribunal had highlighted that it could not be satisfied as to the facts concerning the loan sharks where the applicant himself was not involved in the transaction. His lack of involvement and his wife’s refusal to give him current details explained why he did not remember or know relevant loan details. The Tribunal also highlighted that the applicant had not produced documentary evidence to support his claims for the amounts borrowed or paid back to the loan sharks, or the facts surrounding the loan transactions generally.
He was asked if he wished to respond and he indicated he would discuss those matters with his representative particularly about producing a copy of the mortgage document which he had in his possession, but had not yet given to his representative. He said he would tell his lawyer about the hearing and seek his advice, and whether there was anything else that he wished to provide for consideration.
The applicant was directed to address the concerns raised by the Tribunal at the hearing with his lawyer for response.
The applicant was asked if he needed the Tribunal to provide more explanation or for the Tribunal to repeat those issues of concern as had been discussed, but he indicated he understood what they were and a further explanation was not necessary.
He was invited to seek additional time to respond if that became necessary. The Tribunal otherwise provided a short time frame for his response. He said he thought he would be able to reply within the period suggested. If not, he would ask for more time. The Tribunal informed him that if no further information was received by the due date, and no extension requested, then the Tribunal would proceed with its decision.
A copy of a mortgage to the [Bank] was produced after the hearing, evidencing a loan advance from the bank for 550,000 yuan and in the name of the applicant’s wife, “[Ms A]”, as borrower, and which loan commenced on 13 April 2015 to expire on 12 April 2018. He said they had married about [Number] years ago. He said in evidence that he had last spoken to his wife the evening before the hearing and that they communicate regularly.
No further information was submitted after the hearing concluded except for the mortgage document and no request received for any extension of time for further submissions or to provide further information or documents.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa and manner of proceeding
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.
A decision-maker is not required to make the applicant's case for him. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. It is for the applicant to decide what he wants to rely upon and say for consideration in the review.
The Tribunal 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: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
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
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 Tribunal has had regard to relevant country information as referenced below.
Identity
The Tribunal accepts the available information from the Department as to the applicant’s identity, which was confirmed upon an interview on 20 September 2017 as to his information, and from the biometric data from his passport.
No issue has arisen concerning the applicant’s identity and the Tribunal accepts he is a citizen of the People’s Republic of China, and which is his country of origin and nationality, and the country to which he would relocate.
Country information
The applicant did not seek to contradict the following country information relied upon by the Tribunal. The applicant has not returned to China since arriving in Australia in May 2017. He has indicated orally that he is not sufficiently aware of essential details for his claim, such as the extent of any claimed debts he owes, or of any more recent threats against his family. He was not aware of, nor has he investigated, any available State protection from loan sharks of the anticipated harm. In those circumstances, the tribunal places significant weight on the available country information.
The Tribunal has had regard to the latest DFAT report on China from 22 December 2021, and also a Department of Home Affairs ‘Common Claims’ paper from the Country of Origin Information Service (COIS paper effective 23 July 2024).
In summary, concerning State protection for citizenry, DFAT notes that:
·     China is high on the Corruption Perception Index maintained by Transparency International;
·     China takes corruption seriously as a threat to its legitimacy;
·     Public officials including police can be bribed [28% of public officials accepted a bribe in 2020];
·     COIS reports that: “in February 2023, state media reported Chinese police dismantled more than 160 organised crime groups and 1520 criminal gangs in 2022. In the same month state media reported 14,000 people were prosecuted for organised crime in 2022 as guided by the newly implemented anti—organised crime law”.
·     In 2024, Chinese police continue to crackdown on loan sharks and organised crime groups. Its campaign is now in its 7^th year. Overall, 20,000 organised crime cases have been resolved in the country. In January 2024, state media reported that the PSB had dismantled over 1900 criminal organisations. 27,000 suspects were arrested in 2023. The report notes that in 2024, Chinese authorities pledged to intensify the crackdown on organised crime including financial lending that involves illegal usury. The report notes that “police generally have the capacity to deter and investigate crimes although may rely somewhat on technology and surveillance tools and urban law enforcement forces are better resourced and trained than rural forces”. [5]
·     DFAT notes[6] “police maintain public order and social stability, which are overriding priorities for the CCP. Loyalty to the Party is important among police ranks”, although police themselves are subject to little oversight and where “police impunity as the ‘norm’ “. Further, “police have access to enormous amounts of data and other evidence” including sophisticated technical surveillance and informers, and are well-placed to enforce action against organised crime groups, including illegal lenders, for usury.
[5] report at page 42
[6] report at 5.2
The applicant did not ask for time to contradict relevant country information nor introduce any information of his own relating to the role played by the State in enforcing criminal law against illegal lenders and for providing protection.
He did not disagree with the information that State protection was available and effective .
REASONS AND FINDINGS
The issue in this case is whether the applicant, who is outside his country of nationality is a person who requires protection under Australian law as a “refugee”. If not, whether the applicant faces a real risk of significant harm if removed from Australia and returned to China as his country of origin.
Material questions of fact
In summary, the critical facts upon which the applicant relies are as follows:
·he has borrowed large sums in Chinese yuan currency which he is unable to repay
·some of the borrowing has arisen from illegal lending activity
·he and his family have been threatened if the loan to the illegal lenders is not repaid
·he was defrauded by a colleague as an investor in a [work] project in China which went bankrupt and he has no prospect of any return from his investment
·his wife continues to borrow money to repay other lenders and loans remaining outstanding
·that he has not reported anything to police in order to seek State protection
·he claims to have a well-founded fear of persecution and serious harm from debt collectors acting for the loan sharks, if he returns to China
Findings
The applicant had difficulty when giving evidence. He could provide only a generalised summary of his financial history which went back to 2002 and beyond.
His more recent history since 2015 as to the material facts is largely within the knowledge of his wife whom he did not call upon or rely for her evidence. As late as the night before the hearing he had spoken to her and she declined to give him more information about amounts owing.
His wife was the person who had initial dealings with the loan sharks. He had only met debt collectors once when they came to his home in 2016 and he could not identify them. He had not been harmed.
Lack of detail and specifics
His application was notable for the lack of information. He sought to supplement this with his oral evidence and generalised explanations at the hearing, which were not detailed. He has been in Australia since 2017 and has made little or no enquiry himself of the current circumstances in China, or any awareness of available State protection against criminal gangs and activity by loan sharks, whose lending is illegal.
He was unable to provide any documentation of multiple loans obtained, other than for one transaction referenced by a bank mortgage from his wife to a local bank.
There was no produced documentation of his claimed “project” as an investor, what sums of money were involved, who else was involved in the project and what it involved. It transpired on the applicant’s evidence that the investment in this “project” on his behalf was the source of his current debt problems.
Credibility
There were many inconsistencies with his statement to the Department. At the hearing when asked to explain, he made no reference in evidence to his project going “well” or about any refusal to “bribe local government officials”. The Tribunal does not discount this may have occurred and the applicant might simply have forgotten those facts in the pressure of giving evidence at the hearing.
He simply informed the Tribunal however that he was defrauded by his colleague and the project he had invested in went bankrupt. He told the Tribunal he had limited involvement and only visited the project 4 or 5 times in 2 years. He explained that he was not in fact a ‘contractor’ as claimed, but an “investor”.
The Tribunal found the applicant at the hearing attempted to be generally responsive and truthful, but was unable to provide much specific detail at all about the material facts. The Tribunal found the applicant’s oral evidence was generally not credible. That is not to say he was deliberately untruthful but rather, his statements could not be relied upon because of the vagueness of the responses.
He denied in the hearing that he had been beaten by anyone, or that debt collectors had damaged “our [project] and my home”. He did not claim at hearing that he had been forced to “flee back to my home town”, but rather that he had remained living there the whole time and had delayed leaving for some months after a conversation with debt collectors who came to his home in 2016, before leaving for Australia in May 2017.
He did not explain his delay in leaving which does not evidence a well-founded fear of harm by remaining where he could be easily located and approached.
He maintained at hearing the family was left alone because he promised to make repayments, which his wife has attempted to continue in his absence.
Overall, the Tribunal places very little weight upon the written statement in the application form where it did not align with the oral evidence from the hearing, for example, where he stated he was a ‘contractor’, that he was beaten at one point and his home damaged, that he had failed to pay bribes when in fact he was ‘defrauded’, and that he had ‘fled’. None of those things happened in fact, and which discrepancies the applicant freely admitted and explained as a “misunderstanding” by his representative.
Threats and harm
The applicant’s concern for a ‘well-founded fear’ of harm arises from a verbal threat, evidenced by him on one occasion in 2016, but which he claims has been regularly repeated to his wife. He could not say when and in what circumstances any further threats arose to his wife, because he was not present and his wife has not revealed the details.
The applicant had no involvement in any transactions with the loan sharks. Given the limited nature of the applicant’s recall of detail and his concessions that there had been no physical harm, and apparently no significant events giving rise to serious harm to his family since his departure in 2017, and who have remained living in the same location and have not themselves been forced to flee, the Tribunal places little weight on his evidence as to the question of any serious harm arising in the foreseeable future.

The Tribunal furthermore does not find that there have been repeated threats on specified occasions by debt collectors or over what period, as there is simply no evidence to that effect.
What is accepted?

100. On the evidence as recalled by the applicant, the Tribunal accepts that:
a)      In about 2002, the applicant left China to live in [Country 1] where he remained for 13 years until 2013; he left China in 2002 because he had debts he could not repay.
b)      He is unable to return to [Country 1] as he does not have available work in his previous employment or a residence permit to re-enter the country and cannot repay money he has borrowed in about 2014 or 2015 from a [Country 1] colleague.
c)      When he returned to China in 2013, the applicant had repaid his earlier debts. He was approached to become an investor in a [work] project in China which he accepted and to which he initially contributed a sum of approximately 1.2 million yuan.
d)      It was the applicant’s wife who arranged part of the loan by way of mortgage of the family property to a commercial bank. The applicant then raised further funds from a colleague in [Country 1], from the family’s own savings.
e)      At some later point, perhaps 2015, his wife approached a loan shark who was prepared to advance further funds without security or documentation, other than an IOU. Those funds were to enable the applicant to meet on-going investor contributions for the project and to pay [workers]. The totality of what was borrowed and in what circumstances is not specified. For example, there is no loan documentation, or IOU, or bank statements, or investment documents in the project (including expenses incurred) which the applicant has produced.
f)       The project went into bankruptcy and the applicant has no prospect of any return or recoupment of his investment. He fled to Australia to avoid creditors and in particular the debt collectors who were pursuing him to ensure repayment.
g)      The applicant’s wife has maintained all dealings with the loan sharks and arrangements for repayments. She has also raised additional funds, not specified.
h)      The loan sharks have engaged debt collectors to enforce repayments. Debt collectors make threats if repayments are not made on time. No threats have been carried out and no physical harm to family members has arisen since 2015.
i)     The applicant has not sought any assistance from police or authorities because he fears retribution for himself and his family. He prefers to remain in Australia rather than return home and seek protection for himself and his family.

Application of those facts to the claim to have a ‘well-founded fear’
101. The Tribunal finds it cannot be satisfied as to the exact amounts claimed to be owing, other than by reference to the bank mortgage where his wife borrowed 550,000 yuan.
102. The applicant’s oral claim that the debt is currently around 200,000 yuan seems implausible and would not give rise to the extent of his claimed fear from a much larger total debt referred to in his oral evidence, and which he believed was around 2-3 million yuan. There was no explanation as to what amounts, if any, had been repaid because he simply does not know. He does not claim that his wife holds any fears similar to his own, or that he has any fears for her, as he has left her to manage the situation.
103. The Tribunal makes no findings of any amounts owing. The bank loan expired in 2018. The applicant’s only claimed fear is what he claims still to be owing to the loan sharks and which amount is not established. He fears no other creditors. His wife does not work and borrows money to make repayments. Those amounts are not known, nor details of when and how his wife makes any repayments or what the future may hold. The Tribunal cannot engage in speculation about the applicant’s and his family’s financial circumstances.
104. The Tribunal can accept the applicant has lost his own investment from the family savings. The applicant however did not provide any evidence of his own personal financial circumstances, such as any residual savings in Australia, bank statements, or the value of the family home, or income from any other sources or potential assets or a personal balance sheet. He gave no evidence of any other family liabilities than the loan by his wife from the loan sharks.
105. The Tribunal accepts that on the available country information, there is currently ongoing State action being taken in China to reduce criminal gangs and to prosecute those involved as loan sharks or as illegal lenders. The information in Australia is that such action taken in China has been ongoing for at least 7 years and is effective, and that the police are proactive against criminal gangs and loan sharks.
106. The Tribunal finds on the available country information that there is available in China protection by State authorities from loan sharks and private debt collectors seeking to enforce unfair and illegitimate debts.
Summary
107. In summary, having considered all the available information, principally the oral evidence available from the hearing, the Tribunal finds:
·the applicant has unquantified debts in China which he is unable to repay, some of which is owed to loan sharks, who routinely make threats through debt collectors if repayments are not made
·debt collectors have not harmed the applicant or any of his family members since 2015, despite regular threats over repayments over many years
·the Chinese authorities are capable and effective in protecting citizens from unlawful activity by private agents and debt collection for usury, and could protect the applicant and his family if called upon
·Chinese police will take steps to investigate any claims reported by the applicant
·protection is available to the applicant and his family from relevant State authorities and which protection the applicant has not yet sought or contemplated
·the applicant’s claimed fear of serious harm to him on his return to China based upon likely retribution is not well-founded and where probable protection from relevant authorities is available
·there is a low risk of any harm arising, given the length of time that has passed (since 2015) when the loan(s) activity commenced, and because in the applicant’s circumstances as recited, the harm he apprehends does not rise to the level of “serious harm” because his worst experience was some “pushing and shoving” and his family’s experience of no harm at all to any of them since that time, despite continuing threats
·threats themselves may constitute potential harm, but not where they have not been acted upon over many years, and where likely protection is available to intervene against the debt collectors and loan sharks from causing harm, and before any threatened harm occurs.

108. The criterion in s 5J(1)(a) of the Act contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion while s 5J(1)(b) imposes an objective standard that there be a ‘real chance’ the person would be persecuted and suffer serious harm.
109. 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.
110. The court found in Chan’s case[7] that if there is a real chance an applicant will be persecuted, the applicant’s fear should be characterised as ‘well-founded’. [8]
[7] (Chan’s case) Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 169 CLR 379 (per McHugh J)
[8] Extracted from Tribunal decision case 2014313 at pars 58- 59, and 61-62 and 64, considering the ‘real chance’ test;
111. The applicant himself saw no need to relocate in 2016, after confronted by debt collectors and delayed for several months before deciding to migrate to Australia, leaving behind his wife and family to deal with the debt collectors.
112. It is possible that if the applicant were to consider it, both he and his family could relocate elsewhere in China if it became necessary to avoid persistent debt collectors and in circumstances where they can also seek available protection from State authorities universally throughout China.
113. For these reasons, the Tribunal finds that based on the history recited, there is only a very low risk and small chance of harm arising to the applicant in the foreseeable future were he to return to China.
114. Such perceived “harm” does not rise to the level of serious or significant harm as defined in the Act and where the Tribunal finds there is no ‘real chance’ of the feared persecution arising in any event.
Does the applicant satisfy the refugee criterion for protection?
115. The Tribunal finds that overall, the written statement and oral evidence presented by the applicant does not lead to the conclusion that the applicant faces a ‘real chance’ of persecution and has a well-founded fear serious harm in China, by an identified perpetrator.
116. The Tribunal finds on the available information that there is no real chance of significant harm arising were the applicant returned to his receiving country. The Tribunal agrees with the findings by the delegate in this regard.
117. For the reasons given, the Tribunal finds the applicant is not a refugee as defined in the Act and does not satisfy s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
118. 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).
119. The Tribunal finds on the available information and for the reasons given that there is no real risk (as in “real chance”), that the applicant will suffer serious or significant harm in the reasonably foreseeable future, were he to return to his receiving country.
Conclusion
120. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

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). 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) 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

123. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing: 11 November 2024
Representative
: Chang Hong Liu MARN 1281423 ( Legal Practitioner)

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.
…