2008009 (Refugee)

[2024] AATA 3681

2008009 (Refugee) [2024] AATA 3681 (2 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008009

COUNTRY OF REFERENCE:                   China

MEMBER:Jennifer Ermert

DATE:2 August 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 02 August 2024 at 4:50pm

CATCHWORDS
REFUGEE – protection visa – China – decision on the papers – money lender – demand for additional interest – insufficient information before the Tribunal – decision under review affirmed

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

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of China, applied for the visa on 3 December 2017. The delegate refused to grant the visa on the basis that the applicant does not satisfy the criteria for the grant of a protection visa in s 36(2) of the Act.

3. The applicant was invited to a hearing on 28 June 2024.  On 24 June 2024, the applicant responded to the Tribunal declining the hearing invitation and consenting to a decision to be made on the papers. 

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether or not the applicant is a person in respect of whom Australia has protection obligations because she is either a refugee or a person who meets the complementary protection criterion.  The applicant has not claimed to be a member of the same family unit as such a person who holds a protection visa of the same class as that applied for by the applicant. 

Identity and country of nationality

1. The applicant claims to be a citizen of China.  She provided an uncertified copy of the biodata page of her Chinese passport to the Department in connection with her protection visa application.  In the absence of evidence that the passport a copy of the biodata page of which was provided is a bogus document as defined in s 5(1) of the Act, the delegate has accepted the applicant’s identity and her citizenship of China as claimed.

2. The Tribunal has considered the aforementioned identity document on the applicant’s departmental file.  In the absence of evidence that the applicant is not who she claims to be, the Tribunal also accepts the applicant’s claimed identity and country of citizenship.

3. The Tribunal finds the applicant’s country of nationality for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act is China.

Personal background and protection claims

1. According to the applicant’s protection visa application, the applicant is a [age] year old Chinese woman who was born in Henan province, China.  She does not have any religion, and she was married in 2011.  Before arriving in Australia, the applicant had worked for 17 years as the [Occupation 1] of a [workplace] in Henan. 

2. [In] November 2017, the applicant arrived in Australia as a visitor.  She made an application for the grant of a protection visa on 3 December 2017, and she has not departed Australia since.

3. The protection claims included in her protection visa application, which the applicant declared was completed without any assistance, were that she borrowed money from a financial institution, and that despite paying off the loan, she was told she still needed to pay additional interest which was not indicated in the loan agreement.  When she said she could not afford to pay the additional interest, the financial institution sent gangsters to her house every day to punch and assault her so that she could not even to go to work.  The gangsters also threatened her husband, as a result of which her husband left home and never returned.

4. The applicant claimed she tried to seek assistance from the police, but because the financial institution was owned by the government, the police did not do anything and even told the gangsters about her reporting.  The applicant claimed she cannot return to China because the gangsters would continue to assault her and would kill her as they had threatened to do before. 

REASONS FOR THE DECISION

1. For the reasons discussed below, the Tribunal has concluded that the decision under review should be affirmed because the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations.

Refugee and complementary protection assessment

1. To be eligible for the grant of a protection visa on the basis of satisfying the refugee criterion in s 36(2)(a), the applicant must show that she has a well-founded fear of persecution in China, and owing to that fear, is unable or unwilling to avail herself of the protection of China. This requires an assessment of whether there is a real chance that the applicant would be seriously harmed in the reasonably foreseeable future if she returned to China because of her race, religion, nationality, membership of a particular social group or political opinion.

2. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

1. The applicant was invited by the Tribunal to attend a hearing.  She declined the invitation and opted instead to have a decision on her review application made on the papers.  Without the benefit of the hearing, the Tribunal is unable to be satisfied on the limited information and material currently available that the applicant faces a real chance of serious harm in the reasonably foreseeable future if she returned to China, given her claims with respect to being harmed by gangsters sent by the financial institution for failing to pay additional interest on the loan which she had already paid off are lacking in substance and detail as well as being lacking in credibility.

2. Had the applicant attended the hearing, the Tribunal would have asked the applicant for details of the loan, including but not limited to when she borrowed the money, how much, why she borrowed the money, which financial institution she borrowed the money from, the terms of the loan, and any documentary evidence of the loan etc.  The Tribunal would have asked the applicant to provide details of the reasons given to her by the financial institution for demanding payment of the additional interest despite her having paid off the loan, as well as the circumstances in which the demand for the additional interest was made, for example whether the financial institution sent her any correspondence, and if so, whether she had a copy of the correspondence.  

3. In addition, the Tribunal would have asked the applicant to provide details of the claimed daily visits and assaults from the gangsters, including questions relating to the presence of any witnesses during the claimed assaults, e.g. husband and/or neighbours; whether the police was ever called (either by her husband or by a neighbour) during the assaults; and whether she has ever sought hospital treatment for any injuries sustained in the assaults.  The Tribunal would have also asked the applicant whether, in addition to her purported unsuccessful attempt to obtain police assistance, she has tried other avenues of redress such as legal assistance and civil litigation against the financial institution (and if so, what happened; and if not, why not). The Tribunal would have also taken the opportunity of the hearing to invite the applicant to comment on country information which may counter her claims of being unable to obtain police assistance despite making a police report because the financial institution is state-owned.

4. As the Tribunal is unable to be satisfied on the limited and implausible information available that the applicant faces a real chance of serious harm in the reasonably foreseeable future if she returned to China, the Tribunal finds the applicant does not meet the refugee criterion in s 36(2)(a). 

5. For the same reasons, the Tribunal finds there are no substantial grounds for it to believe that, if the applicant was removed from Australia to China, there is a real risk she would suffer significant harm as a necessary and foreseeable consequence of that removal.  Accordingly, the Tribunal finds the applicant does not satisfy the complementary protection criterion in s 36(2)(aa). 

6. Finally, as the applicant has not claimed to be a member of the same family unit as another person who engages Australia’s protection obligations and who holds a protection visa of the same class as that applied for by the applicant, and as there is no evidence before the Tribunal to suggest the contrary, the Tribunal finds that the applicant does not satisfy s 36(2)(b) or s 36(2)(c) of the Act.  

DECISION

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

Jennifer Ermert
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

1. For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

1. For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

2. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

3. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

4. If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

5. Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

6. In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

1. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

2. A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…