2015510 (Refugee)

2015510 (Refugee) [2024] AATA 3391 (5 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2015510
COUNTRY OF REFERENCE:                   China
MEMBER:Rebecca Mikhail
DATE:5 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 05 July 2024 at 2:45pm
CATCHWORDS
REFUGEE – protection visa – China – fear of harm from money lenders – localised harm – credit card debt – blacklist for dishonest judgement debtors – administrative detention for up to fifteen days – law of general application – particular social group – detainee – general lack of human rights and impunity in detention facilities – lack of family, support and accommodation – failed asylum seeker – complementary protection – physical beatings whilst in detention – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 56, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant, who claims to be a citizen of China, arrived in Australia [in] June 2017 on a visitor visa.
On 26 February 2018 the applicant applied for a permanent protection visa.
On 23 September 2020 a delegate of the Minister for Home Affairs refused the grant of the visa under s 65 of the Migration Act 1958 (Cth) (the Act).
This is an application for review of that decision.
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether she is entitled to complementary protection. The relevant law and mandatory considerations are set out in the attachments.
For the following reasons, the Tribunal has concluded that the decision under review should remitted for reconsideration.
APPLICANT’S CLAIMS FOR PROTECTION AND EVIDENCE
Before the Department
The applicant’s claims, as outlined in her application for protection, can be summarised as follows:
·She opened a shop in her hometown.
·One day the local government notified her that her shop would be taken by a developer who wanted to build a new factory. They compensation offered to her was one quarter of the market price, so she refused to sign the collection agreement.
·One day the local government sent people to her shop to take it. They smashed all her goods and threatened and beat her because she refused to sign the agreement. She called the police, but they ignored her case. Her friend told her the compensation was corrupted by the local government and the developer and they also colluded with the police.
·She wrote a public letter to get society's attention and help. After the officials knew of this, they sent police to catch her.
·She was scared so she fled to Australia.
·If she returns to China, she will be persecuted by the police and will die in prison and will suffer mental and physical persecution.
The applicant did not provide any further supporting evidence in relation to her claims for protection to the Department of Home Affairs (the Department).
The applicant was not invited to an interview before the Department in relation to her application for protection.
On 5 August 2020 the applicant was sent a letter by the Department inviting her under s 56 of the Act to provide additional information and supporting documents about some of the claims in her application and to provide clarification on particular points. This letter informed the applicant that if she did not respond to the invitation within the prescribed timeframe, the Department could decide the application with the information it had at that time without asking her again. According to the delegate’s decision, the applicant did not respond to this letter at the time their decision.
The delegate refused the grant of the visa on the basis that, due to the lack of detail from the applicant regarding her claims and, in light of country information, they were not satisfied that the applicant participated in the activities described and suffered the kinds of adverse treatment or harassment in China as claimed. They were not satisfied that her claims were credible and was not satisfied that the applicant had a profile that was of adverse interest to the Chinese authorities or anyone else in China. They were not satisfied the applicant had a well-founded fear of persecution in China nor that there was a real risk she would suffer significant harm.
Review application
On 19 October 2020 the applicant lodged an application for review of that decision with the Administrative Appeals Tribunal (the Tribunal). She was initially represented in relation to this review.
On 29 January 2024 the Tribunal was informed by the Department that the applicant was detained in [immigration] Detention Centre.
On 9 February 2024 the Tribunal invited the applicant to a hearing on 11 March 2024. The invitation was sent to the applicant’s representative.
On 6 March 2024 the applicant’s representative withdrew his representation as he could not obtain instructions from the applicant and noted that she may be in the custody of law enforcement and requested that the Tribunal contact the applicant directly. The representative also requested that the Tribunal ‘stand the matter down’.
On 7 March 2024 the Tribunal wrote to the applicant advising that it had received correspondence from her representative who advised that he was no longer representing applicant and that the Tribunal should contact her directly. The Tribunal also provided the applicant with a courtesy copy of the hearing invitation and requested that she provide a response to this invitation as soon as possible.
On 8 March 2024 the Tribunal received correspondence confirming that the applicant will attend the Tribunal hearing. In the circumstances, the Tribunal decided to proceed with the scheduled hearing.
On 11 March 2024 the applicant appeared before the Tribunal in person. This hearing was not completed and was adjourned. The resumed hearing was rescheduled on 28 March 2024, during which the applicant appeared again before the Tribunal in person. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.
During the first hearing the applicant confirmed that she was no longer represented by her previous agent.
During the hearings the applicant raised new claims outlined below.
She was born in [year] in [Village 1], [Town 1], [County 1], Wenzhou City in Zhejiang Province. She only attended primary school for [number] years. She was not good at studying. She lived in the above village until she was [age] years old, when her father passed away in a car accident. Her mother then married her stepfather and they moved to [Location 1] in [County 2]. They then moved to a property in [Town 1], [County 1], Zhejiang Province when she was still a child.
She married her husband when she [age] years was old, and they lived in his house in [Town 1]. They had a daughter. During her marriage she started gambling but at this stage she was only gambling in small amounts. She played cards and a game called Paijiu.
After approximately two years of marriage, she left her husband and daughter due to marital problems. Her husband remarried. She only contacts her ex-husband and daughter about once or twice a year. She does not know anything about their life.
After her marriage ended, she moved and lived in [Town 2] in [County 1], Wenzhou City, Zhejiang Province, where she rented a place by herself. During this time, she was gambling ‘big’ and became a professional gambler. At times she had a good turnover of funds due to her gambling. She did not work during this time but spent her time gambling.
Due to her gambling, she took out loans on credit cards from banks in [Town 2] and [Town 3]. She has debt on five different credit cards from five different banks. Those debts remained when she left China. She also took private loans from four or five money lenders in [Town 2]. Some were legitimate lenders who provide small loans with a high interest rate, but other lenders were illegitimate. When she was in China, she did not pay any of her debts back in full. She also has a number of small loan amounts on online lending services and also owes money to three of her friends. She thinks she owes around 2 million RMB to both the banks and the money lenders but does not know exactly how much she owes now as she has not paid money towards her debts for a long time. She does not own any assets in China.
She included her ex-husband, her brother, and her ex-husband’s sister as guarantors on some of the loans. The banks and money lenders have called them to harass them. They have also approached her mother several times and came to her mother’s home seeking the applicant’s whereabouts. No harm has come to her family.
In 2014 the money lenders threatened her as she had not paid any interest on the loans. At first, they said they would take her to court. She stopped answering their calls, so they started to intimidate her. They went to her parent’s house and her husband’s house and would ring her and her parents and threaten to kidnap her daughter if she did not pay them. They stuck her identity card and photo on her house and also threatened to sue and kill her.
In 2015 she moved to a hotel in [Town 4], Suzhou City, Jiangsu Province, where she worked. She could not stay in her hometown because she owed a lot of money and people were chasing her and threatening to kill her and she could not make a living there. She did not gamble whilst she lived in Suzhou City as she needed to work to pay back her debt. She did not pay off any of the money lender loans or any of the money she owed to her friends since leaving her hometown in 2015. The money lenders did not find her in Suzhou City.
She returned to [Town 1] in 2015 and 2016 in secret and stayed for only one week on each occasion. She returned on those occasions to borrow further money from the banks in order to repay money owed to her friends and so that her loan guarantors would not be put on the blacklist. On one occasion she stayed with her best friend and on the other occasion she stayed with her mother but did not go out at all.
She travelled to Australia in 2017 because she was working in a simple job in China, and it was hard to pay off her loans. She came to Australia as it was easy to apply for a visitor visa.
She arrived in Australia on a visitor visa and then decided she wanted to stay in Australia as she liked the lifestyle. She applied for a student visa but that was rejected. Her friend advised her to apply for a ‘refugee bridging visa’ to allow her to work. She wanted to stay in Australia legally because she owes the banks in China a lot of money and cannot make a living in China.
She went to an agent to help her, but they did not ask for her documents. They helped her apply for a ‘refugee bridging visa’. Something happened to that agent, but she does not know what happened. She was told they were arrested, and their agency was closed.
Whilst in Australia she continued to pay the interest on her credit card debt up until March 2019. She stopped after that because she did not have any money.
Whilst in Australia she also engaged in gambling but stopped in 2021 because she did not have money. The main reason, however, was because she did not want to gamble anymore as she wanted to work properly.
She does not contact her parents often due to her poor relationship with them as a result of her debts. She has [brothers] and [half-brothers] who live in [Town 1]. She is not in contact her with brothers as they do not want to contact her as they do not want to get involved in her debt problems.
Since she came to Australia people have gone to her hometown to arrest her and she thinks there is a fraud court case against her.
She fears going back to China because she cannot make a living there and she owes a lot of money and people will chase her. She is on the blacklist and cannot fly on a plane or use an express train. Because she owes so much money, she will be arrested. If she returns to her hometown, the money lenders will find out. They are still asking her family about her whereabouts. She will also not have any family or support or a place to live if she were to return to China. Applying for protection in Australia is considered a betrayal by the Chinese authorities and she will be prevented from obtaining a home loan or departing the country.
FACTUAL FINDINGS
Nationality
The applicant provided a copy of her Chinese passport with her application for protection. On the evidence before me I am satisfied she is a national of China and that China is the receiving country for the purpose of this assessment.
There is no evidence before me to indicate that the applicant has an existing right to enter and reside in any other country.
Claims raised in the protection visa application
During the first hearing the applicant indicated she did not know what was included in her protection visa application. She said she did not know English and trusted an agent who assisted her to do everything for her, so she did not ask them any questions. She said she only remembers being asked some questions about herself, but her agent did not ask questions about other things such things as her religion. During the second hearing I outlined to the applicant a summary of the written claims outlined in her application for protection and asked if she had been aware of these claims. In response she said she had not provided these claims to the agent and confirmed these claims were not true. I accept the applicant’s evidence in this regard.
Claims regarding gambling debt
I found the applicant to be generally a credible witness and she gave what appeared to be a truthful account of her problem with gambling that culminated in a large debt to both credit card companies and personal lenders in China.
Country information before me also corroborates the applicant’s claims in this regard. It indicates the prevalence of gambling addiction in China is much higher than in any western country. This is despite most forms of gambling being banned in mainland China, with the exception of state-run lotteries. However, illegal gambling is very popular in mainland China.[1] Further, country information indicates non-bank lending is one of the fastest growing forms of credit in China and, because China lacks a uniform credit system, borrowers often run to an informal network of shadow banks for loans that carry high interest rates.[2] Sources notes there has been much excess borrowing and fraud because a borrower’s creditworthiness was either not readily shared or non-existent altogether. Banks in China have been giving out loans to people who might have had multiple defaults with other banks.[3]
[1] X. Huang, D. Shijun and S. George, ‘Gambling addiction in China: a survey of Chinese psychiatrists’, Int Psychiatry, 2014 Nov; Volume 11(4): 98–99, available at
[2] 'China ‘granny gang’ jailed in lending clampdown', The Financial Times (UK), 11 August 2017, CXC90406617230
[3] D. Sharma, ‘China’s Social Credit System’, The Economics Review (New York University), 9 September 2019,
At the end of the first hearing, I asked the applicant to provide any copies of correspondence her ex-husband had received in relation to her debts. During the second hearing the applicant indicated she was unable to find any such correspondence but brought a mobile phone to this hearing which she claimed was the phone she brought from China to Australia. On that phone she was able to show me text messages she had received in 2019 from a number of banks and a money lender in relation to her debts. She said she did not receive any further subsequent messages after that date as she stopped using her Chinese mobile number after that time.
One message received on 27 March 2019, translated by the interpreter present during the hearing, was from ‘[Bank 1]’.[4] It noted the applicant’s suspected overdrawn credit card with ‘ill intention’ and that the bank had urged her to fulfil her obligations to repay but that she had deliberately avoided doing that, which was an apparent attempt not to comply with the law. It further noted the bank had fraud material and audio recording as evidence and they were implementing comprehensive inspection of ‘the suspect’ and her property and a hearing would be conducted at 4pm on [date] March 2019 in the People’s Court criminal listing in [County 1]. When I asked the applicant why it referred to fraud and an audio recording, she said she did not know why she had been charged with fraud. A subsequent message from the same bank stated that the applicant needed to bring valid documents to attend court and to have ready the owed amount of 72,320 yuan and 30,000 yuan as a late payment fee. It also stated that, if she could not settle her debts, she would be held in custody. It also stated that if she refused to attend or missed the hearing time, enforcement could be sought.
[4] Website of [Bank 1] available at [Source redacted].
Another message from ‘[Bank 2]’, sent on 27 March 2019, stated that the applicant’s credit card had not been paid in the past two months and this would be reported to the database from the financial credit information and the amount owing was 25,891.10 yuan. It further stated that, to avoid any negative influence on her credit, she must pay the amount as soon as possible and provided a link to check the bank statement.
Another message from [Bank 3][5] sent on 2 February 2019 stated that it had urged the applicant to make payment over three times and reminded her to pay the overdue amount of 5,509.4 yuan by 4pm that day. Another message from this bank indicated her overdue debt would be reported to the database. The applicant claimed this meant that her name was on the blacklist. She also said she thought she owed more to this bank of approximately 10,000 yuan.
[5] Website of [Bank 3] available at [Source redacted].
Another message from [Bank 4][6] stated the overdue amount on the applicant’s credit card was 69,391.14 yuan and up to now the minimum repayment was 3408 yuan short and asked her to settle it in two hours to avoid ‘severe impact and related responsibilities’.
[6] Website of [Bank 4] available at [Source redacted].
The applicant claimed she was unsure if other banks had taken her to court.
During the hearing the applicant also claimed that she had received text messages from a money lender and revealed one message on her phone, read out by the interpreter, which said ‘So (name of applicant) this is another festival, Ching Ming festival. If you do not want to pay, you just tell me, do not think nothing will happen if I cannot get hold of you, now I am living very miserably, please give me some hope otherwise you will regret, I do not want to live that long anyway, if you do not believe me then each of you should wait, but I will tell you where your family live’. Another message sent on 1 February 2019 from the same person, said ‘(Name of applicant) are you not going to repay the debt with the money like this, you think you can still eat’.
Having considered all the evidence before me, I accept the applicant’s claims in relation to her background, including in respect of her childhood and subsequent marriage and then divorce. I accept that, after her divorce, she moved to [Town 2]. I accept that the applicant started gambling during her marriage and that, after her divorce, her gambling increased to the extent that it appeared she was engaging in gambling for most of her time. I accept that, as a result of her gambling, she incurred debts on five credit cards and several loans with money lenders and that she also borrowed money from friends and through online services. I accept she has not paid off those debts. I accept the money lenders were trying to contact and find her whilst she was in China and sent her threatening messages and have approached her family. I accept that she moved to Suzhou City in 2015 because her creditors were looking for her and she could not make enough money in [Town 2]. I accept she worked in Suzhou City for two years prior to travelling to Australia.

When I asked the applicant which area she would return to if she had to return to China, she said she did not know but she would not return to her hometown in [County 1] because she cannot make a living there. I accept her evidence in this regard.
REFUGEE ASSESSMENT
Fear of harm from money lenders
In a 2021 report by the Australian Department of Foreign Affairs and Trade on China (DFAT), it noted that victims of loan sharks have a plausible fear of violence but that overall, the risk is low.[7]
[7] 'DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade (DFAT), 22 December 2021, 20211222100210 (DFAT 2021 report)
During the hearing I noted to the applicant that she had indicated the money lenders had threatened her family but had said no harm had come to them and this may indicate they have no real intention to hurt her but rather they just want their money back. I also put the above information from the DFAT report to the applicant which stated that risk of violence from loan sharks is low. I noted that this may lead me to find that she will not face a real chance of serious harm from them if she were to return to China.
In response, the applicant said this was not true. She said they had not yet seen her in person and, even if they threatened her family, her family do not have any assets and they live in the country and cannot repay her debt. She said, if she returns to China, and the money lenders see her in person, no one knows what will happen and what other measures they will take. I asked her what she thinks they will do, and she said they will at least intimidate or threaten her by using her daughter. I then noted to her that she had told me that they had not harmed her daughter and she said that was true but that was because she was not in China, and they can and will definitely find her. She said she will not go back to her hometown and will find somewhere else to hide secretly and then said she was on the blacklist and cannot use trains or planes or go to any foreign country and cannot find a job.
However, I note that the applicant has claimed she will not return to [County 1], where these money lenders are located. Further, they were unable to find and harm the applicant since she left [County 1] in 2015 and moved to Suzhou City.
At the hearing I noted to the applicant that she was able to move to other areas of China to escape the money lenders in [County 1] such that it appears the harm she feared was localised to that area and this would indicate that she would not face harm from these lenders in other areas of China. Further, I noted to her that she had claimed she would live elsewhere in China. In response, she said that she agreed and that made sense, but she left her hometown over ten years ago and was left with no choice and that is why she left and questioned who would want to leave their child and family. She said if she returned, she would have to live on her own without family and friends. I then reminded the applicant that she had claimed that she left her husband and child after two years of marriage and chose to move to [Town 2] due her marital breakdown, to which she agreed. I am not convinced of the applicant’s claim that she had no choice but to leave her child and family as she left her child and husband when their marriage broke down and chose to move away and has claimed she does not know much about their life and has little contact with them. Further, it is only after her marriage ended and after she moved away from her family’s village, that her gambling escalated and she started to borrow money. She also indicated it was due to her own behaviour and choices that led to her having a poor relationship with her immediate family.
Section 5J(1)(c) of the Act requires that the real chance of persecution relates to all areas of the receiving country. In this context, ‘all areas of a receiving country’ means all areas of the country where there is safe human habitation and to which safe access is lawfully possible.[8]
[8] FCS17 v MHA (2020) 276 FCR 644
On the evidence before me, I am satisfied that the harm the applicant fears from the money lenders in [County 1] is localised to that area. I am not satisfied on the evidence there is a real chance the money lenders will find out the applicant has returned to China and will seek her out in other areas of China. There is no evidence before me to indicate the applicant could not safely and lawfully access another habitable area of China as she has done in the past. Given this, I am not satisfied the applicant will face a real chance of persecution in all areas of China.
As the real chance of harm does not relate to all areas of the receiving country, the applicant does not have a well-founded fear of persecution within the meaning of s 5J of the Act in relation to this claim.
Fear of harm in relation to credit card debt
Country information before me indicates that China does not have a nationwide personal bankruptcy system or law.[9] Country information indicates that powers to limit the behaviour of debtors who fail to pay their debts include those under China’s Civil Procedure Law.[10]
[9] W. Zhenxiang, ‘Current practices, complications of quasi-personal bankruptcy’, China Business Law Journal, 9 August 2023, available at
[10] D. Chunyan, “’Moral Conviction’ plus ‘Joint Sanctions’: The Judgment-defaulter Blacklist System in China”, Brooklyn Journal of International Law, Volume 48, Issue 2, 30 August 2023, available at >
One source noted that, in court proceedings regarding debtors, if the defendant does not pay off their debt under the judgement within the requirement timeframe, then a claimant can apply to the court to initiate enforcement. When a judgement debtor does not satisfy their obligations as set forth in a judgement or award, the court may make a record in the credit reporting system and publicise their obligations through the media or take other statutory punitive measures and name the debtor in the ‘list of dishonest judgement debtors’ which is sent to inform others, including credit reporting agencies. The applicant may request the court to also impose consumption restrictions on the debtor once their name is on the ‘list of dishonest judgment debtors’. This includes restrictions on air and high-speed rail travel, luxury hotel accommodation, private school education for children and other luxuries. Judgment debtors may also be prohibited from exiting China.[11]
[11] R. Liao, John D. Fitzpatrick and Y. Li, ‘International Fraud & Asset Tracing 2023’, Han Kun Law Offices (China), undated, available at
In its 2021 report DFAT also noted that being listed on the Supreme People’s Court blacklist could restrict an individual’s ability to travel by first-class air and rail, access loans, spend on ‘luxury’ items and access private education opportunities for children. DFAT understands that the social credit system mostly affects domestic travel, and the government has other mechanisms to determine whether or not a person can leave the country. However, it noted the ABC reported in 2019 that 128 people had been prevented from leaving China because of a bad social credit score.[12]
[12] DFAT 2021 Report
Among the listed circumstances under the Civil Procedural Law which are related to those where a judgment debtor may be blacklisted as a ‘discredited judgment defaulter’, include refusing to satisfy any effective judgment or ruling of a court.[13] One source also noted the blacklisting process is also triggered after a borrower is sued by creditors, such as banks, and then misses a subsequent payment deadline.[14] This is consistent with messages from a bank the applicant received about being ‘reported to the database’ for missing a payment.
[13] Chunyan, op.cit.
[14] S. Yu, ‘Chinese borrowers default in record numbers as economic crisis deepens’, The Financial Times (UK), 3 December 2023, available at
Another source explained that, given the politically prioritised task of solving the problem of enforcement difficulties and the ineffectiveness of the legal approaches, the Chinese judiciary led by the Supreme People’s Court has resorted to blacklisting judgment defaulters based on the notion of ‘social credit’ and imposing joint sanctions on them. Due to the ineffectiveness of the legal approaches, this has become more and more popular and common in practice.[15] The country's highest court publishes the names and identity card numbers of ‘dishonest people’ on its website. The site was created by the Supreme People’s Court in an attempt to make people comply with verdicts to repay their debts.[16] A 2019 article published by The Economics Review noted that the blacklist is the only punishment that appears nationwide.[17]
[15] Chunyan, op.cit.
[16] T. Chan, ‘Debtors in China are placed on a blacklist that prohibits them from flying, buying train tickets, and staying at luxury hotels’, Business Insider (US), 20 December 2017, available at
[17] Sharma, op.cit.
Other country information notes that local courts are also increasingly turning to public shaming, such as reels of shame and billboard displays, as a method to recoup funds from citizens. Reports from state media outlets show courts have also been employing the tactic at cinemas and other public locations in Hebei, Jiangxi, Sichuan, Jiangsu, and Guizhou provinces.[18] There is no evidence before me to indicate that has occurred to the applicant and I am not satisfied it has.
[18] 'Chinese debtors named and shamed on cinema screens during Avengers: Endgame film premiere', Australian Broadcasting Corporation (ABC) (News), 30 April 2019, 20190501164447
Another source noted that the Civil Procedure Law also provides that the People's court may summon coercively a defendant who must appear at the hearing but has refused to do so without proper reason after two summonses. If the litigant participant or others refuse to carry out the people's court's decisions and rulings, the people's court may, according to the gravity of the case, fine or detain them; and where the act constitutes an offence, they shall be subjected to criminal liability according to law.[19] A 2018 article also noted that the court was empowered to impose a fine or detention on a judgment debtor, depending on the seriousness of the act. It noted that, in 2018, a fine on an individual should be less than RMB 100,000 and the period of detention should not be longer than 15 days.[20] A book published in 2023 about civil litigation in China noted the same.[21] A 2023 legal article noted that, in theory, a court can sentence a judgment debtor to as many as seven years in prison. However, it noted, the circumstances for such a measure are rare, generally involving ‘tangential misconduct’ such as using violence to impede enforcement.[22]
[19] ‘Law of Civil Procedure of the People's Republic of China’, AsianLii, 9 April 1991, available at
[20] G. Du & M. Yu, ‘14 Compulsory Execution Measures against A Judgment Debtor in China’, China Justice Observer, 31 March 2018 available at
[21] C. Zhang, Win in Chinese Courts: Practice Guide to Civil Litigation in China, Springer, Singapore, 2023 available at
[22] Y. Dai & D. Philips, ‘From Judgement to Justice: Enforcing Court Judgments in China’, DaHui Lawyers, 28 October 2023, available at
On 1 January 2024, China’s amended Civil Procedure Law came into force.[23] In April 2024 I made enquiries with DFAT with respect to this law in regard to whether it had introduced measures, including fines and/or detention, for those who do not comply with specific court orders and whether it applied to debtors (including due to credit card debt), and if so, in what circumstances. I also queried whether this amended law applied retrospectively and whether it was enforced in practise and if there were cases involving the detention of debtors (including due to credit card debt), under the law. In June 2024 DFAT responded to my query and advised that the above law includes provisions regarding measures for fines and detention for those who do not respond to a summons or comply with effective court orders and provisions for enforcement and recovery applicable to debtors (though the law does not specify whether it relates to credit card debt). DFAT further noted judgement and rulings under the law are enforceable by courts and provides implementation measures in the event of failure to fulfil obligations determined by a legal instrument, including asset forfeiture, wage garnishing and restrictions on leaving the country. It also noted that the above articles were existing provisions in the Civil Procedure Law which had been maintained in the new amendment and therefore, DFAT had not commented on their retrospective effect. In the same advice, DFAT also noted that it was not in a position to provide advice on the degree to which the Civil Procedure Law is enforced in practise, but an initial non-exhaustive search of Chinese media articles indicated at least two instances of debtors being detained. It noted in one, a woman who had failed to pay her debts was arrested at Beijing's Daxing airport, detained for fifteen days and subject to a RMB10,000 fine. It noted in another instance, a man in Henan province who refused to repay debts, despite a court judgement compelling him to do so, was placed in detention (the period of detention was not specified in reports).[24]
[23] G. Hughes, P. Rohlik, C. Sim & T. W, ‘China’s New Civil Procedure Law On Foreign-Related Cases Comes Into Force’, Debevoise & Plimpton LLP, 4 January 2024, available at
[24] 'China - Civil Procedure Law 2024', DFAT, 19 June 2024, 20240619162443; 'China - Civil Procedure Law 2024 - EN', DFAT, 19 June 2024, 20240619163117
I also note the above referenced book published in 2023 about civil litigation in China noted that from 2016 to September 2018, Chinese courts detained a total of 380,000 dishonest judgment debtors and found 14,647 dishonest judgment debtors guilty of the crime of refusing to enforce judgments.[25]
[25] Zhang, op.cit.
I have considered the text messages the applicant received in 2019 from a number of banks and, in particular, one text where she was required to appear in court in relation to her credit card debt with [Bank 1] and that she did not attend that court date and has not repaid that debt nor any other credit card debt. I have also considered other text messages from other banks she received which said she had been reported to the ‘database’. Given this and the above country information, I am satisfied there is a real chance that she has been placed on the blacklist for dishonest judgement debtors by the Supreme People’s Court from 2019 and there is a real chance she has remained on that list given she still has not made any attempt to repay those credit card debts since 2019. I am satisfied there is a real chance she will be subject to the above court-imposed consumption restrictions as a result. Further, given she left the country in 2017 and has not repaid her credit card debts since then and did not attend court as required in 2019 in relation to (at least) one credit card debt, and the related bank message noted she would be arrested if she did not attend court on that day, I am satisfied there is a real chance the applicant will come to the attention of the Chinese authorities when she returns. I am satisfied there is a real chance she will be questioned either at the airport or shortly after her arrival. I am not satisfied that being questioned in these circumstances amounts to serious harm.
The above country information notes that the Civil Procedure Law provides measures for fines and detention for those who do not respond to a summons or who do not comply with effective court orders and DFAT has noted at least two instances of debtors being detained, one of which was detained for fifteen days which is consistent with the provisions in the above law. Other country information also refers to the detention of thousands of judgement debtors. Given this information and the circumstances of this particular case, where the applicant left the country in 2017 and did not repay her credit card debts and did not respond to at least one summons to appear in court in relation to one debt a number of years ago, and that she will come to the attention of the Chinese authorities when she returns, I am satisfied there is more than a remote chance she will also be subject to a fine of no more RMB 100,000 and detention for up to fifteen days. On the evidence before me I am not satisfied, she has, or there is a real chance she will be, subject to criminal prosecution in the reasonably foreseeable future as this appears to only occur in very serious matters and I am not satisfied the applicant’s circumstances arises to that level.
During the hearing I noted to the applicant that I may find any legal enforcement of any Chinese law regarding the payment of bank debts is a law of general application and does not appear to be applied in a discriminatory manner. In response she said that since she applied for protection and, up and until now, she has been in Australia for eight years and she does know what will happen to her in China, or what measures they will take against her. She said they can investigate and can find out she applied for a protection visa, and this could be considered a betrayal, and questioned whether the Chinese authorities would still consider her a Chinese citizen. I have considered the applicant’s response, but I note it did not directly respond to my concern in substance.
On the evidence before me I am satisfied that any penalty imposed on the applicant pursuant to the Civil Procedure Law, as a result of the applicant not paying her credit card debts and not responding to a court summons, including being detained for a fifteen days in a Chinese detention centre and/or being subject to a fine and consumption restrictions, is the enforcement of a generally applicable law which does not constitute persecution as the enforcement of that law does not ordinarily constitute discrimination.[26] I find that the application of the law in respect of those Chinese citizens who have not repaid their credit card debts is an application of the law which applies to all Chinese citizens and there is no evidence that the enforcement of this law is applied in a discriminatory manner. I also find the fact that the law in regard to dishonest judgement debtors and the enforcement of this law, in the above manner, is appropriate and adapted to achieve the legitimate state objective of preventing people from not repaying their financial debts.[27] For this reason I am not satisfied that the loss of liberty the applicant may endure for a fifteen days on return to China and/or being subject to a fine and/or consumption restrictions amounts to persecution within the meaning of s 5J(4) of the Act.
[26] Applicant A v MIEA (1997) 190 CLR 225 and Chen Shi Hai v MIMA (2000) 201 CLR 293
[27] MZAPO v MIBP [2015] FCCA 96

I have considered country information below regarding the various detention facilities in China to determine where the applicant may be detained.
DFAT’s 2021 report noted that residential Surveillance at a Designated Location (RSDL) is sometimes used to detain activists, human rights lawyers, and government critics, as well as people accused of national security or terrorism crimes or serious corruption. It may also be used if a suspect does not have a fixed place of residence. RSDL may be used to detain people for up to seven months before their formal arrest or release. The primary distinction between RSDL and ‘black jail’ (a secret, extra-legal detention facility) is that RSDL is a formal feature of the Chinese legal system. RSDL also reportedly often entails treatment more severe than in black jails, and occurs in government-run, custom fit-for-purpose facilities, whereas black jails are quasi-administrative holding centres for petitioners and criminals.
The above report further noted that administrative detention is imposed for crimes of a minor nature that are not serious enough to warrant criminal prosecution and punishment under the Criminal Procedure Law or Criminal Law. It can involve detention in one’s home, an apartment rented by police, a hotel or other premises. It is imposed by public security organs at the local (county) government level. While there are various forms of administrative detention in China with different procedures and time-limits, the maximum period of administrative detention for any one act is fifteen days, and where multiple periods of administrative detention are imposed concurrently for several acts, the maximum period of detention is twenty days.
In its recent report on human rights practices in China in 2023, the US Department of State also noted that RSDL codified in law the long-standing practise of detaining and removing from the public eye individuals the state deemed a risk to national security or intended to use as hostages. It also referred to the liuzhi detention system, which it stated operated outside the judicial system as a legal tool for the government and the Chinese Communist Party (CCP) to investigate corruption and other offences by officials.[28]
[28] '2023 Country Reports on Human Rights Practices - China', US Department of State, 22 April 2024, 20240423144042
On the evidence before me I am satisfied there is a real chance the applicant will be detained in an administrative detention facility given it is for matters of a minor nature that are not serious enough to warrant criminal prosecution and punishment and the above information indicates it is for a maximum period of fifteen days which corresponds with maximum period of detention for default judgement debtors under the Criminal Procedure Law.
I am not satisfied there is a real chance the applicant will be detained in a RSDL or black jail or prison.
DFAT’S 2021 report noted that torture is widely alleged in custody in China. It noted former prisoners have said they have experienced torture in custody, including accusations of beatings, sexual assault, electric shocks, stress positions (being forced to sit, for example, in a square painted on the ground or on a stool or a ‘tiger chair’ (a form of chair-restraint) for long periods), sleep or deprivation, verbal abuse, threats against family members, being hung by wrists and medical procedures or feeding without consent. Further that conditions in administrative and pre-trial detention facilities are typically harsh, and often worse than in prisons. Hygiene, medical services and food and water provisions are rudimentary at best.
In its recent report on human rights practices in China for 2023, the US Department of State also noted that there were credible reports that authorities routinely ignored prohibitions against torture, especially in politically sensitive cases. Former prisoners and detainees had reported they were beaten, raped, subjected to electric shock, forced to sit on stools for hours on end, hung by the wrists, deprived of sleep, force-fed, forced to take medication against their will, and otherwise subjected to physical and psychological abuse. It noted that prison authorities reportedly singled out political and religious dissidents for particularly harsh treatment but also stated that they abused ordinary prisoners. It also noted conditions in administrative detention facilities were like those in prisons where detainees reported beatings and sexual assaults, lack of proper food and limited or no access to medical care. It stated impunity was a significant problem in the security forces, including the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice, which managed the prison system.
In its recent report on China published in 2024, Freedom house also reported that conditions in places of detention were harsh, with reports of regular beatings.[29]
[29] 'Freedom in the World 2024 - China', Freedom House, 29 February 2024, 20240301084828
A 2019 report by the International Society for Human Rights stated that almost every detainee in China has to, or has had to, suffer being beaten and kicked.[30]
[30] 'Common methods of torture and abuse in the People's Republic of China', International Society for Human Rights, 16 August 2019, 20190816163135
The above country information before me indicates a real chance the applicant will face significant physical ill-treatment in the form of beatings and being kicked whilst detained. I am satisfied this treatment amounts to serious harm.
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a).
The above information indicates that all detainees in China face a real risk of physical mistreatment in detention from prison and detention authorities due to general lack of human rights in detention facilities and impunity. Although some detainees with certain profiles, such as religious minorities and political activists, face a higher risk of worse treatment, I am not satisfied the applicant fits this profile. I am not satisfied the applicant will be subjected to this treatment on the basis of her race, religion, nationality, or political opinion.
The above country information does not support that the applicant will be mistreated because she is a dishonest judgement debtor but, rather, due to her circumstances of being detained.
I have considered whether ‘detainees’ are a particular social group.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
I accept that ‘detainees’ are a particular social group as it is a characteristic shared by each member of this group and the applicant will share this characteristic when she returns to China and is detained. The applicant will also be perceived to be a ‘detainee’ by the Chinese authorities who will be responsible for detaining her and, therefore, being a ‘detainee’ distinguishes this group from society as per s 5L(c)(iii). Further, the shared characteristic is not a fear of persecution.
However, the country information above indicates that there is a lack of general human rights in detention and general impunity regarding the behaviour of detention authorities in China. It does not reflect that detainees are mistreated for reasons of being a detainee but rather due the above circumstances prevalent in detention facilities. Whilst I accept detainees are a particular social group and that, but for being a detainee, the applicant would not be harmed, that is not the test.[31] Whilst there is a connection between the detention and the harm, I am not satisfied on the evidence that the harm would be inflicted on the applicant for the essential and significant reason of her membership of the particular social group of ‘detainees’ but rather due to the general lack of human rights and impunity in detention facilities in China.
[31] Chen Shi Hai by his next friend Chen Ren Bing v MIMA (Federal Court of Australia, French J, 5 June 1998)
I am not satisfied the applicant will face a real chance of serious harm from detention authorities on the basis that she belongs to the particular social group of ‘detainees’ as I am not satisfied it is the essential and significant reason for the harm.
I am not satisfied the applicant has a well-founded fear of persecution in relation to this claim.
Fear of harm on the basis of lack of family, support, and accommodation
The applicant also claimed that, if she returns to China, she will not have family or support or a place to live.
At the hearing I noted to the applicant that I may find that her concerns in this regard do not meet the definition of a refugee under the Act as any challenges she may face in this regard does not involve systematic and discriminatory conduct on the basis of her race, religion, nationality, membership of a particular social group or political opinion.
In response the applicant questioned why this claim was not sufficient but did not provide any other substantive response.
On the evidence before me I am not satisfied the applicant has a well-founded fear of persecution on the basis that she will lack family, support, and a place to live if she were to return to China as I am not satisfied any challenges she may face in this regard involve systematic and discriminatory conduct on the basis of her race, religion, nationality, membership of a particular social group or political opinion.
Fear of harm as a failed asylum seeker
At the hearing I noted to the applicant that DFAT’s 2021 report stated that it had no information to suggest that failed asylum seekers are targeted by the Chinese authorities merely for having sought asylum. DFAT noted, however, that Chinese authorities are likely to be aware of the behaviour of Chinese asylum seekers while they are outside of China and may know that applicants have applied for asylum but the consequences for those applicants are not clear. I also noted to the applicant that broader country information before me did not indicate that failed asylum seekers from Australia will face a real chance of harm amounting to serious harm from the Chinese authorities.
In response the applicant said that everyone’s case is different. She said her friend came to Australia and applied for a protection visa and, when she returned to China, she could not travel to any other county. She said her friend warned the applicant not to apply for a protection visa. The applicant said applying for protection in Australia was considered a betrayal in China.
I am unable to place much weight on the applicant’s assertion in regard to what happened to her friend in return to China as there could be other aspects of her profile that drew the adverse attention of the Chinese authorities. Further, the country information before me does not support this assertion.

100. On the evidence before me I am not satisfied there is a real chance the applicant will imputed with an opinion against the Chinese government for applying for asylum in Australia. I am not satisfied she will face a real chance of serious harm from the Chinese authorities on return to China as a failed asylum seeker from Australia.
101. The applicant does not meet the requirements of the definition of refugee in s.5H(1). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
COMPLEMENTARY PROTECTION ASSESSMENT
102. For reasons already stated I am satisfied the applicant will face a real risk[32] of being subject to fifteen days in an administrative detention facility as penalty for being a dishonest judgement debtor.
[32] MIAC v SZQRB (2013) 210 FCR 505
103. On the basis of the country information before me I am satisfied there is a real risk the applicant will be subjected to physical beatings and being kicked whilst in detention.
104. ‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. However, ‘cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman, or degrading treatment or punishment.
105. I am satisfied that the treatment the applicant will endure in detention amounts to cruel or inhuman treatment as it involves physical pain and suffering intentionally inflicted on the applicant and I am satisfied it is cruel or inhuman in nature.
106. I am not satisfied that such treatment is inherent in or incidental to a lawful sanction as it is inconsistent with Articles 7 of the ICCPR.
107. I am satisfied that such treatment amounts to significant harm.
108. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act
109. As the perpetrator of the harm to the applicant are officers of the Chinese government, relocation does not arise, and the applicant cannot obtain protection from the Chinese authorities.
110. I am also satisfied the risk of significant harm to the applicant whilst held in detention is one she faces personally and, therefore, is not faced by the population of the country generally.
111. The exceptions in s 36(2B) of the Act do not apply.
112. I am satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
113. I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
114. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Rebecca Mikhail
Member

ATTACHMENT A - CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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 Attachment B.
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 Attachment B.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT B - 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.
…

20201006142717

[2024] AATA 3391

5 July 2024

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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