2014628 (Refugee)

[2024] AATA 3626

2014628 (Refugee) [2024] AATA 3626 (31 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2014628

COUNTRY OF REFERENCE:                   China

MEMBER:Jason Pennell

DATE:31July 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 31 July 2024 at 10.31am

CATCHWORDS
REFUGEE – protection visa – China – decision on the papers – particular social group – person who fears being seriously harmed by gang members – insufficient information before the Tribunal – effective state protection – decision under review affirmed

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

CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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 29 September 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 28 February 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant, pursuant to ss 36(2)(b) and 36(2)(c).

3. The applicant did not appear before the Tribunal to give evidence and present arguments. On 17 June 2024 the Tribunal sent an email to the applicant advising that her application was being allocated to a member and requested that she complete a pre-hearing information form. The Tribunal did not receive any correspondence from the applicant in response to its email. On 4 July 2024 the Tribunal sent the applicant an invitation to attend a hearing before the Tribunal on 25 July 2024 at 10.30am[1] for the purposes of giving evidence and making submissions in support of her claim for protection.

   [1]   Hearing Invitation dated 4 July 2024; AAT file No 2014628 Doc ID: 12967104

4. On 23 July 2024 the applicant provided the Tribunal with her response to the hearing invitation[2] in which she elected not to participate in the hearing and consented to the Tribunal making a decision in relation to her application for review on the papers without her taking any further steps to appear before the Tribunal.  As a result, in accordance with the applicant’s instruction, the Tribunal has decided not to conduct a hearing in this matter and proceeded to make this decision on the papers.

   [2]    Hearing Response dated 21 July 2024; AAT file No 2014628 Doc ID:13141428

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.

APPLICANT’S CLAIMS AND EVIDENCE

Applicant’s identity and country of reference

1. The applicant claims[3] that she was born in [County 1], Guangxi, China on [date].  The applicant provided a certified copy of her Chinese passport[4] that confirmed her date and place of birth. There is no evidence to suggest this is a bogus document. As such, the Tribunal accepts and finds the applicant was born on [date] in [County 1], Guangxi, China.  

   [3]    Applicant’s Protection Visa application dated 28 February 2018, AAT file No: [number] Doc ID:[number]

   [4]    Applicant’s passport; [number] Doc ID: [number]

2. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the document provided by the applicant, the Tribunal finds that she is a citizen of the People’s Republic of China (China) and as such her protection claim will be assessed against China as the country of reference and ‘receiving country’ respectively.

Applicant’s migration history

1. The applicant arrived in Australia [in] October 2017 on a visitor visa.[5] She applied for a protection visa on 28 February 2018 and has not departed Australia since her application for protection.  

Applicant’s claim for protection

[5]    Movement record, AAT file No 2014628, Doc ID 13159419

1. The applicant’s claims for protection are contained in her application for a protection visa as follows (spelling, grammatical, and syntactical errors included):[6]

   Provide reasons why this applicant left that country or those countries:

   My father ran a small shop in my hometown before i came to

   Australia. The local government officers often went to the shop and asked my father to give them some money for bribery. They became more and more greedy and asked my father to give them more and more money, which became out of control. My father began to refuse to pay them the money. They employed some gangsters to come to smash the windows. They not only kicked my father, but also threatened my father that they would find me and did not allow me to live in peace. They would even kill me if my father still refused to give them the money. They did not allow the customer to buy products from the shop. My father had to close the shop because of these gangsters. However, they kept coming to find my father and threaten him. My father told me that my life would be dangerous if i return to China. Therefore, i want to seek protection from Australian government.

   Did this applicant experience harm in that country or those countries?

   Yes. not only kicked my father, but also threatened my father that they would find me and did not allow me to live in peace. They would even kill me, which made me really scared of them. It was hard for me to fall asleep and i often had a nightmare.

   [6]    Application for Protection Visa dated 21 February 2018, Dept file No [number], Doc ID [number]

   Did this applicant seek help within the country or those countries after the harm?

   Yes. My father tried to call the police to ask for help. They did not go to help him and asked him not to call them again instead.

   Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

   Yes. The gangsters kept go to threatening my father that they would find me to harm me and would even kill me.

   Explain what the applicant thinks will happen to them if they return to that country or those countries:

   The gangsters employed by the officers would find me and harm me.

   Does this applicant think they will be harmed or mistreated if they return to that country or countries?

   Yes. The gangsters have told my father that they will find me and harm me before. I am really scared of them.

   Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

   No. The gangsters sent by local officers have threatened my father before that they would harm me if they find me. Therefore, i do not think that i will be protected.

   Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

   No. The local officers were so powerful, and they would find me no matter where i relocate, because i need to report to the police my new household if i relocate.

2. The delegate summarised the applicant’s claims as follows:[7]

   [7]   Protection Visa Decision Record dated 29 September 2020, Dept file [number] Doc ID: [number]

   ·Her father ran a small shop in China;

   ·The local government officials often demanded bribery money from the applicant’s father;

   ·The applicant’s father began to refuse paying the bribery money;

   ·The local government officials employed gangsters to vandalise the shop;

   ·These gangsters threatened the applicant’s father that they would find the applicant and not allow her to live in peace;

   ·These gangsters said that they would kill the applicant if her father refused to pay the bribery money;

   ·The applicant’s father had to close the store because of these gangsters;

   ·Despite the closure, the applicant’s father still received threats from the gangsters;

   ·The applicant’s father tried to contact the police however they refused to help him and asked not to call them again;

   ·The applicant’s father told her it would be dangerous for her to return so she sought protection from the Australian government.

Applicant’s supporting documentation.

1. The applicant did not provide any documentation in support of her protection claims.

Applicant’s evidence

1. The applicant did not appear before the Tribunal for the purposes of giving evidence or making submissions in support of her application for a protection visa. As such, the evidence before the Tribunal in support of her claim is contained as provided in the applicant’s protection visa application.[8]

   [8]    Application for Protection Visa dated 21 February 2018, Dept file No [number], Doc ID [number]

2. The applicant’s evidence was that she was born in [County 1], Guangxi, China on [date].  The applicant’s ethnicity is Han Chinese and her religion is Buddhism. The applicant claims that she speaks, reads, and writes Mandarin.

3. The applicant claims her father continues to live in Guangxi, China and that she has an older brother who lives in Australia. The applicant claims she was married [in] June 2016.

4. The applicant attended school in [County 1], Guangxi, China. The applicant claims she completed high school in 1998 at [School 1] in [County 1], Guangxi, China. The applicant does not claim to have attended University or College. The applicant claims that from August 1998 to 14 September 2017 she worked as a [Occupation 1] at [Employer 1] in Guangxi, China.

5. The applicant claims that she travelled to Australia to study and to seek protection.[9]

   [9]    ibid

COUNTRY INFORMATION

1. In accordance with Ministerial Direction No.84 of 24 June 2019 under s 499 of the Act, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the current DFAT report on the People’s Republic of China dated 22 December 2021 (the DFAT report).[10] In particular, the Tribunal has considered those parts of the DFAT report as detailed in Annexure ‘A’ of these reasons.

   [10]  DFAT Report on China dated 22 December 2021

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Credibility

1. When assessing the applicant’s claims, the Tribunal must make findings of fact in relation to each claim. In doing so, the Tribunal is mindful of the difficulties faced by an applicant, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision maker is not required to make the applicant’s case for him or her. 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 enough evidence to establish the claim. 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.[11] Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[12]

   [11]  Section 5AAA of the Act

   [12]  MIEA v Guo (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169–70]

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[13] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.

   [13]  Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at [482]

4. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[14] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

   [14]  The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196]

Applicant’s refugee claim

Relevant grounds

1. To be considered a refugee pursuant to s 36(2)(a) of the Act, it is necessary that if an applicant is returned to their country, he or she has a well-founded fear of persecution by reason of his/her race, religion, nationality, membership of a particular social group (PSG) or political opinion pursuant to s 5J(1)(a) of the Act. In this case, the applicant did not make a formal submission as to how her claims fell within s 5J(1)(a) of the Act. Nevertheless, it was open for her to submit that her claim falls within s 5J(1)(a) as a member of a PSG. That is as a person who fears being seriously harmed by gang members if she is returned to her country. 

1. Section 5L of the Act states:

   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.

1. In this case, the applicant claims that her father operated a small shop. She claims that local officials demanded bribery money from her father which he refused to pay. As a result, they employed local gang members to damage her father’s shop and threatened her and her father. The applicant claims that she will be seriously harmed by the gangsters if she is returned to China because her father refused to pay the bribery money.  Based on the applicant’s claim as detailed in her protection application, the Tribunal has some reservations that the applicant is a member of a PSG as defined under s 5L of the Act. That is, the Tribunal is not satisfied that being threatened by gang members constitutes an innate or immutable characteristic, or it is so fundamental to the applicant’s identity or conscience that she should not be forced to renounce.  Nevertheless, for the purposes of this decision the Tribunal is prepared to accept that as a person who has been threatened to be harmed by gang members the applicant is a member of a PSG pursuant to s 5L. Accordingly, it accepts that this claim falls within the scope of s 5J(1)(a) of the Act.

Applicant’s well-founded fear

1. An applicant must have a well-founded fear of persecution. Section 5J of the Act states that for the purposes of an application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country. In the case of a PSG, the persecution said to be feared by the applicant must be for reasons of membership or perceived membership of the group.[15]

   [15]   Sections 5H(1) and 5J(1)(a) of the Act; see Applicant A v MIEA (1997) 190 CLR 225 at [240].

1. In Chan v MIEA,[16] when considering the Convention, the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted ...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[17]

   [16] (1989) 169 CLR 379 at [396]

   [17] (1989) 169 CLR 379 at [396]. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at [263] per Brennan CJ, Toohey, McHugh and Gummow JJ

2. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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.[18] Section 5J(4) of the Act requires that the reason for the persecution must be the essential and significant reason and that it must involve systematic and discriminatory conduct.

   [18] Chan Yee Kin v MIEA (1989) 169 CLR 379

3. In this case, the Tribunal has considered if there is a real chance the applicant will be seriously harmed if he was returned to China and, for the reasons expressed below, the Tribunal has found that the applicant does not have a well-founded fear of persecution as claimed, either on a subjective or objective basis.

Applicant’s claim as a refugee

Threats by gangsters

1. The applicant’s evidence in support of her claim was vague and lacking in any detail. The applicant claims that her father operated a small shop in China. However, the applicant did not provide any details of the shop including, the type of shop her father operated, its address or any business name under which it operated. In addition, she did not provide the Tribunal with any independent evidence of her father owning and/ or operating a shop as claimed such as a photo or statements by an independent witness. Therefore, given the vague nature of the applicant’s evidence and the lack of detail provided in relation to her father operating a shop, the Tribunal does not accept that her father owned or operated a shop as claimed.

2. The applicant claims that local government officers had forced her father to pay ‘bribery money’ which he had refused to pay. As a result, she claimed that the local government officers employed gang members to smash the windows of the shop and harm her father. The applicant did not detail to the Tribunal when local government officials demanded money from her father or how much was demanded on each occasion. In addition, the applicant did not provide any details as to when and how her father refused to pay the bribery money as claimed. Then applicant did not provide any details as to when the gang members kicked her father and threatened to harm her by not allowing her to ‘live in peace’[19] as claimed. The applicant did not provide any independent evidence of the father’s shop being damaged or her father’s injuries. In addition, she did not provide any independent evidence of the gang members threat to kill her. In circumstances where the applicant states in her protection visa application[20] that she contacts her relatives in China often by telephone, the Tribunal would have expected her to be able to provide photos of the damage to the shop and some medical report in relation to her father’s injury. Finally, the Tribunal would have expected some statement by her father in support of the applicant’s claims that threats were made by gang members to kill her. No such evidence was provided in support of her claim.   

   [19]  Application for Protection Visa dated 21 February 2018, Dept file No [number], Doc ID [number]

   [20]  ibid

3. As such, due to the vague nature of the applicant’s evidence and lack of detail together with the lack of independent supporting evidence to her claim, the Tribunal does not accept the applicant’s evidence that local government officials demanded bribes from her father as claimed. In addition, the Tribunal does not accept that the shop was damaged, or that her father was harmed as claimed. Finally, the Tribunal does not accept the applicant’s evidence that gang members threatened to harm her as claimed. As such, having not accepted the applicant’s evidence as detailed in her protection visa application, the Tribunal finds that there is no real chance the applicant will be seriously harmed because of bribes demanded by local officials against her father, or any threat to kill her upon her return to China due to her father’s failure to pay the bribes as claimed.  

Access to state protection

1. In the alternative, if the Tribunal was to accept that her father operated a shop and local government officials had demanded bribes from her father and as a result of her father’s refusal to pay the bribes gang members had threatened to harm the applicant upon her return to China (which the Tribunal specifically does not accept), then based on the available country information it finds that the applicant would be able to obtain effective protection to the extent that there would be no real chance that she would be seriously harmed if she returned to China.

2. The country information reports[21] that the police carry out day to day crime fighting activities and investigate crimes. The day-to-day crime rates in China are low but when it does occur it is reported that the police investigate thoroughly and prosecute criminals.[22]

   [21]   DFAT report at p.36

   [22] DFAT report at p.36

3. It’s estimated that in China 28 per cent of public officials accepted a bribe in 2020.[23] It is reported that corruption frequently occurs in court decisions, and areas ‘heavily regulated by the government’ such as land-usage rights, mining, and infrastructure development.[24] It is reported that the government takes corruption seriously as a threat to its legitimacy.[25] Penalties for corruption can include death for serious and high-profile cases.

   [23] DFAT report at p.10

   [24] ibid

   [25] ibid

4. In 2013, President Xi launched a nation-wide anti-corruption campaign against high and low-ranked corrupt officials.[26] The crackdown led to arrests of over 1,800 officials, including very senior political figures.[27] Corruption charges can be interpreted broadly with allegations of corruption by officials being investigated by Party organisations principally the Central Commission for Discipline and Inspection and the National Supervisory Commission. [28]

   [26] ibid

   [27] ibid

   [28] ibid

5. The country information reports[29] that in January 2018, the Chinese central authorities launched a three-year nationwide special campaign against organised crime. The crackdown continued after the campaign officially ended with the ‘Anti-organised Crime Law’ taking effect in May 2022, giving greater legal clout to procuratorates. It is reported[30] that in the three-year national crackdown, China indicted 230,000 people engaged in mafia-like gangs and other crimes, and a further 2,987 people who acted as their protectors.  More than 8,580,000 criminal suspects were arrested, and 14,900,000 suspects prosecuted from 2013 to the end of June in 2022.[31] In addition, it was reported[32] by China’s Ministry of Public Security that in 2023 China’s public security organs dismantled over 1,900 criminal organisations and solved around 29,000 criminal cases and arrested 27,000 suspects in its continued fight against organised crime. 

   [29] CHINA DAILY, ‘BATTLE AGAINST ORGANIZED CRIME ONGOING’ 10 FEBRUARY 2023 BY YANG ZEKUN;  

   [30] Global Times, ‘China reaffirms determination to wipe out mafia gangsters, protectors’ 18 July 2022, by Zhang Changyue;

   [31] ibid

   [32] Global Times, ‘Chinese public security organs to deepen fight against gang crimes, dismantle over 1,900 criminal organizations in 2023’ 17 January 2024:

6. The Tribunal notes that in the case of loan sharks some protection is available to debtors.[33] The crackdown on corruption by the authorities in 2018 included usury and resulted in the prosecution of many people.[34] It’s reported[35] that several highly publicised violent crimes related to debt collection were discussed in the media in 2017 with police making arrests and people being convicted for serious crimes such as assault and sexual assault related to debt collection. It’s reported[36] that the police operations against loan sharks have been of a large scale. An operation in 2019 in Lanzhou resulted in 253 suspects being arrested. It is reported[37] that the gang had over 1,300 mobile phone applications and websites to facilitate usurious moneylending. The DFAT report states that while loan sharks are active in China, it assesses that state protection is available and that the risk of harm is low.[38]

   [33] DFAT report at p.30

   [34] ibid

   [35] ibid

   [36] ibid

   [37] ibid

   [38] DFAT report at p.31

7. Therefore, having considered the operation of s 5J(2) alongside the available country information, the Tribunal is satisfied that, if it did accept that gang members had threatened to harm the applicant as claimed, effective protection measures are available to the applicant in China. The Tribunal finds that the effective protection measures are available to the applicant by the State[39] and that the State is able and willing to provide such protection.[40] The applicant can access the available protection and the protection provided is durable. From the available country information the Tribunal finds that China has an appropriate system of criminal law, and that the police force is effective.[41] Therefore, by operation of s 5J(2) and s 5LA, the applicant does not have a well-founded fear of persecution as a victim of gang members as claimed or any related claim or any other reason.

   [39]    Section 5LA(1)(a) of the Act

   [40]    Section 5LA(1)(b) of the Act

   [41]    Section 5LA(2) of the Act

8. Accordingly, by operation of s 5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution if she is to return to China and as such finds that the applicant does not satisfy s 36(2)(a) of the Act.

Complementary protection

1. The Tribunal also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’. The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind.

2. Based on the applicant’s evidence and the available country information the Tribunal has not accepted that her father operated a shop as claimed or that she was threatened by gang members as claimed. As such the Tribunal has found that there is no real chance the applicant will be seriously harmed by gang members because her father had failed to pay bribery money to local government officials as claimed.  Given that the real chance test is the same as the real risk test, for the reasons expressed above the Tribunal does not accept there is a real risk the applicant will be significantly harmed if she is returned to China because of her being threatened by gang members as claimed. Accordingly, the Tribunal does not accept that the applicant has a real risk of significant harm as outlined in s 36(2A)(c) and (d) of the Act and finds that there is no real risk the applicant will be significantly harmed if she is returned to Malaysia. 

3. However, in circumstances where the Tribunal accepts that the applicant was threatened by gang members (which the Tribunal has specifically found she was not) then under s 36(2B) of the Act, there is no real risk of significant harm if the applicant can ‘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’.[42] To satisfy s 36(2B)(b),[43] the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[44]  In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s 36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[45] However, the test in s 36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection. That is, s 36(2B)(b) of the Act requires the Tribunal to be satisfied that the protection available would remove the real risk of significant harm.

   [42] Section 36(2B)(b) of the Act

   [43] MIAC v MZYYL (2012) 207 FCR 211

   [44] MIAC v MZYYL (2012) 207 FCR 211 at [40].

   [45] In MIAC v MZYYL (2012) 207 FCR 211 at [36]

4. Having considered the country information and the accepted circumstances of the applicant as discussed under the Tribunal’s effective protection findings for s 36(2)(a), the Tribunal finds that the level of protection from state and other authorities available to the applicant, if removed from Australia to anywhere within the applicant’s country of reference, would remove the real risk of significant harm. That is, the Tribunal finds that the Chinese authorities will provide effective protection to the applicant from physical harm. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from an authority of China, protection such that there would not be a real risk that she will suffer significant harm. Accordingly, pursuant to s 36(2B)(b) of the Act, there is no  real risk that the applicant will suffer significant harm in China and as such does not satisfy s 36(2)(aa) of the Act.

5. In all the circumstances, the Tribunal finds that, pursuant to s 36(2)(aa) of the Act, there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to their receiving country, that there is a real risk that she will suffer significant harm of any kind.

6. At no stage did the applicant advance any other reason, such as her nationality, or political opinion in her written claims that she is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s 36(2)(a) and s 36(2)(aa) of the Act.

7. Having considered her claim and accepted circumstances, both individually and cumulatively, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk she will suffer significant harm, including that she will be arbitrarily deprived of her life; suffer the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment, as required by s 36(2)(aa) of the Act.

CONCLUSION

1. 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 the Act for the reasons mentioned in s 5J(2). Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

2. 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).

3. There is no suggestion that the applicant satisfies s 36(2) based on 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 any of the criteria in s 36(2).

DECISION

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

Jason Pennell
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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

…

Annexure ‘A’

ECONOMIC OVERVIEW[46]

[46] DFAT report at p.8

2.6 World Bank figures show China’s GDP has averaged almost 10 per cent growth per year since 1978. Real GDP grew 2.3 per cent in 2020 in spite of the COVID-19 pandemic while many other major economies recorded negative growth. The World Bank describes China as an upper middle-income country. The United Nations Development Programme (UNDP) ranks China 85th out of 189 countries in its 2020 Human Development Report, in the ‘High Human Development’ category.

2.7 In December 2020, President Xi declared success in establishing a ‘moderately prosperous society’ and eradicating extreme rural poverty. Ensuring the sustainability of these efforts, improving the lives of low income families and addressing widespread inequality are key challenges for the government. Economic development has been uneven, with a large wealth gap between the rich and poor that has been affected over time by large-scale internal relocation from rural to urban areas by people in search of higher wages.

2.8 Social security is limited in China. Traditionally, people rely on family to support them in old age or sickness. Under China’s new Civil Code, which came into force on 1 January 2021, parents have the right to demand support from their adult children if it is not otherwise forthcoming. A subsistence allowance, dibao, is paid to the poor with the rate set by the local municipality. If a person is returned to China without means of family support, DFAT assesses that it would be difficult, but not impossible, to subsist depending on individual circumstances including age, health, ability to work and level of education. Access to social security and basic services can also be impacted by an individual’s registered place of residence. See also hukou.

Unemployment[47]

[47] ibid

2.9 According to International Labour Organization (ILO) data, China’s reported urban unemployment rate was consistently around 4.5 per cent between 2011 and 2018 but rose to 5 per cent in 2020 with the impact of COVID-19. The real rate of unemployment is probably higher than official statistics. The official unemployment rate does not fully capture underemployment or unemployment of migrant workers, a 290 million strong workforce.

2.10 The changing nature of work has made it difficult for some low-skilled workers to find employment. Before the COVID-19 pandemic the government focussed on the creation of new urban jobs. Some laid-off factory workers have taken up employment as delivery drivers and shop workers, but these too have been disrupted by the pandemic.

……………………………

Corruption[48]

[48] DFAT report at p.10

2.20 China ranked 78 out of 180 countries and territories in Transparency International’s 2020 Corruption Perceptions Index (where 1 is perceived to be least corrupt). The 2020 Global Corruption Barometer for Asia found that, while 64 per cent of Chinese citizens considered corruption had decreased in the previous 12 months, 62 per cent still perceived government corruption to be ‘a big problem’.

2.21 Transparency International estimated 28 per cent of public officials accepted a bribe in 2020. The 2020 US Department of State Human Rights Report notes frequent corruption in court decisions, and areas ‘heavily regulated by the government’ such as land-usage rights, mining and infrastructure development. Bribery in healthcare is also reported, for example offering cash for prioritised procedures. See also documentation and fraud and entry and exit procedures.

2.22 What might be considered corruption in the West may be viewed as guanxi in China. Guanxi, (literally ‘connection’) is a system where progress in business or government relies on patronage networks – giving and receiving ‘face’ (mianzi - esteem, prestige) and exchanging favours or gifts. Good guanxi can obtain favourable business, social and legal outcomes, and bad guanxi can make them impossible.

2.23 The government takes corruption seriously as a threat to its legitimacy. Penalties for corruption can include death for serious and high-profile cases. On taking office in 2013, President Xi launched a nation-wide anti-corruption campaign against high and low-ranked corrupt officials. Within five years the crackdown led to arrests of over 1,800 officials, including very senior political figures. Corruption charges can be interpreted broadly. Allegations of corruption by officials are investigated by Party organs in the first instance (the Central Commission for Discipline and Inspection and the National Supervisory Commission). While officials are generally investigated by these organs for alleged crimes related to fraud, financial misappropriation and other activities traditionally defined to constitute corruption, these organs appear also to investigate officials deemed to lack loyalty and ideological purity. Individuals critical of the Party and its leadership can also face detention and other consequences ostensibly for corruption charges.

…………………………………….

People who owe money to loan sharks.[49]

[49] DFAT report at p.30

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

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

3.124 Loan shark operations may be large-scale, but police operations are also large scale. In 2019, 253 suspects were arrested in a campaign against loan sharks in Lanzhou. The gang had over 1,300 mobile phone applications and websites to facilitate usurious moneylending. The Chinese Government claims that 41,000 suspects have been detained in 2021, but it is not clear if this is only during the recent crackdown, or if it includes previous arrests.

3.125 DFAT assesses that loan sharks are active in China but assesses that state protection is available. DFAT considers that victims of loan sharks have a plausible fear of violence but that overall, the risk is low.

…………………………..

Police[50]

[50] DFAT report at p.36

5.1 The Ministry of Public Security oversees the police force, which is organised into specialised police agencies and local, county, and provincial jurisdictions. These agencies often collectively and individually called the local ‘Public Security Bureau’ (PSB). The People’s Armed Police (PAP) is a paramilitary force organised under the People’s Liberation Army (PLA) responsible for internal security and stability (such as combatting riots and terrorism, but also domestic monitoring of perceived security threats), maritime security and support of the PLA. The PAP is also active in Xinjiang. Regular police generally do not carry firearms and gun crime is rare in China.

5.2 Police maintain public order and social stability, which are overriding priorities for the CCP. Loyalty to the Party is important among police ranks, as it is in all government positions. Police, including at lower levels, can be investigated for corruption (which is a threat to stability and Party legitimacy) and loyalty offences.

5.3 Police carry out day-to-day crime fighting activities and investigate crimes. Day-to-day crime rates are low in China but where crime does occur, DFAT understands that police investigate thoroughly and prosecute alleged criminals.

5.4 Police are subject to little oversight, having the ability to issue their own warrants without the involvement of a court (or ignoring regulations where this is required), for example. According to the US Department of State Human Rights Report, while investigations into police killings are often announced, the findings of those investigations are often not announced. DFAT is not able to verify this. Freedom House’s 2021 Freedom in the World report describes police impunity as ‘the norm’.

5.5 Police have access to enormous amounts of data and other evidence. Social media is monitored and an unprecedented number of closed-circuit television cameras have been rolled out during the COVID-19 pandemic as part of efforts to control the virus.