2105789 (Refugee)

[2021] AATA 2282

2105789 (Refugee) [2021] AATA 2282 (22 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2105789

COUNTRY OF REFERENCE:                  China

MEMBER:D Triaca

DATE:22 June 2021

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

Statement made on 22 June 2021 at 1:16pm

CATCHWORDS
REFUGEE – protection visa – China – fear of harm from loan sharks – borrowed large amount to pay for mother’s medical expenses – threats against applicant and family – no action by police – credibility – no appearance at hearing, material filed in support or further communication – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36(2), 65, 426(1A)(a), 426A(1)
Migration Regulations 1994 (Cth), Schedule 2

CASES
AKH16 v MIPB [2019] FCAFC 47; (2019) 269 FCR 168
AON15 v MIBP [2019] FCAFC 48; (2019) 269 FCR 184
Chan v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA [2000] HCA 19; (2000) 201 CLR 293
MIEA v Guo Wei Rong and Pam Run Juan (1996) 50 ALD 445
MIEA v Guo (1997) 191 CLR 559
SZLPN v MIAC [2010] FCA 202
SZNRZ v MIAC [2010] FCA 107
Yao-Jing Li v MIMA (1997) 74 FCR 275

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 dependants.

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 27 April 2021 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s. 65 of the Migration Act 1958 (the Act)[1]. If granted, a Subclass 866 protection visa permits a non-citizen to remain in Australia indefinitely.

   [1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611

2. The visa applicant applied for a visa on 13 October 2020. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s.36(2) (a) or (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 (s.36(2)(b) and s.36(2)(c) of the Act).

1. The tribunal wrote to the applicant by letter dated 1 June 2021, inviting him to appear before the tribunal at a hearing that would provide him with an opportunity to give evidence and represent argument sin support of his case (‘the hearing invitation’). The hearing invitation indicated that the hearing was scheduled to take place by telephone at 11.00am on 21 June 2021. The hearing invitation indicated that if the applicant did not participate in the hearing, the tribunal may proceed to make a decision in relation to his application without enabling him any further opportunity to participate in a hearing.

2. The applicant responded to the tribunal in writing on 17 June 2021 indicating that he would attend the hearing. No other documents were provided at this time. However, he did not appear at the time and place at which the hearing was scheduled to take place. Several attempts were made by the tribunal to contact the applicant by telephone, without success, on the telephone number that he had provided to the tribunal for the purposes of communicating with him in relation to his review application. The last of those unsuccessful attempts to call the applicant was at 11.15am on 21 June 2021. A mandarin interpreter was booked for the hearing. The interpreter was advised their services were no longer required as the applicant was unable to be contacted.

3. No further communications have been received from the applicant since his failure to appear at the scheduled hearing. The tribunal is satisfied that the hearing invitation was sent to an email address that had been designated by the Applicant as a principal method by which the Tribunal could communicate with him in relation to his review application. The Tribunal finds that the Applicant has not communicated any explanation as to why he failed to appear at the scheduled hearing.

4. By the operation of ss 426A(1) and 426(1A)(a) of the Act, in circumstances where an applicant has been invited to appear before the Tribunal and has failed to do so at the scheduled time and place, the Tribunal may proceed to make a decision on the review without conducting a hearing. The Tribunal has considered whether it should exercise its discretion to do so in this case. The Tribunal notes that it is a government funded body with limited resources. It has a statutory duty to discharge its functions fairly, justly, economically and quickly, and in a manner that promotes public trust and confidence in the Tribunal’s decision-making responsibility.[2] Having regard to these factors, including the fact the interpreter was arranged, the fact invitation was sent to him, together with two SMS Reminders, and the fact that the applicant has not filed any material in support of the application since it was made, either in response to the tribunal’s recent hearing invitation or in response to the Department’s correspondence to the applicant on 15 October 2020 at which time, ‘the applicant was sent an acknowledgement of valid application letter which advised them they could provide additional information relating their claims and how they could provide this. The letter also informed the applicant that the decision on their application could be made without another opportunity for them to present further information,’ the Tribunal has decided to exercise its discretion to make a decision without a hearing, having regard to all the relevant material presently before it.

   [2] See Administrative Appeals Tribunal Act (Cth), s 2A

5. For the following reasons, the tribunal has concluded the decision under review should be affirmed.

RELEVANT LAW

1. The criteria for the grant of a protection visa are set out in s. 36 of the Act and Schedule 2 of the Regulations. An applicant must establish that they are a non-citizen of Australia and that they are either:

   (a)A person in respect of whom Australia has protection obligations because that person is a refugee (the refugee criterion)[3];

   (b)A person in respect of whom Australia has protection obligations because of other complementary protection grounds (the complementary protection criterion)[4]; or

   (c)A member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion)[5].

   [3] Migration Act 1994 (Cth), s 36(2)(a)

   [4] Migration Act 1994 (Cth), s 36(2)(aa)

   [5] Migration Act 1994 (Cth), s. 36(2)(b),(c).

2. 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 protection in that country.[6] 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 they are unable or unwilling to return to that country.[7]

   [6] Migration Act 1994 (Cth), s 5H(1)(a)

   [7] Migration Act 1994 (Cth), s 5H(1)(b)

1. 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 of the Act.

1. The term persecution is not expressly defined in the Act. The standard Australian dictionary, the Macquarie Dictionary, defines the verb to "persecute" as "to pursue with harassing or oppressive treatment; harass persistently" and relevantly, "to oppress with injury or punishment for adherence to principles".[8]

   [8] SEE CHEN SHI HAI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] HCA 19; 201 CLR 293 AT [61] TO [65] FOR A DETAILED DISCUSSION OF THE MEANING OF PERSECUTION.

1. Section 5J of the Act states that for the purposes of the application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race nationality, membership of a particular social group or political opinion’ and that there is a real chance they will be persecuted for one or more of these reasons in the event they return to their receiving country. The real chance of persecution must also relate to all areas of the receiving country.[9]

   [9] Migration Act 1958 (Cth) 5J(1)(c)

1. In Chan v MIEA[10] the Court, when considering ‘well-founded fear’ for the purposes of the Refugee Convention, held that involves both a subjective and objective element.[11] Mason CJ said at 389:... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. Dawson J said at [397] ‘Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear ‘and at 398 that a “real chance is one that is not remote regardless of whether it is less or more than 50%”.Toohey J said at 407:The test suggested by Grahl-Madsen, “a real chance”, gives effect to the language of the Convention and to its humanitarian intendment. It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial. It is a test that can be comprehended and applied. McHugh J said at 429:...a fear may be well-founded for the purposes of the Convention and Protocol even though persecution is unlikely to occur...an applicant for refugee status may have a well-founded fear of persecution even though there is only a ten per cent chance that he will be...persecuted.

   [10] (1989) 169 CLR 379

   [11] the meaning of “well-founded fear of persecution”, and “real chance” of persecution were the subject of earlier judicial commentary when the applicable tests were found in the Refugees Convention. Those authorities remain apposite. In AKH16 v Minister for Immigration and Border Protection[2019] FCAFC 47;  (2019) 269 FCR 168 (AKH16) (Besanko, Middleton and Mortimer JJ) and AON15 v Minister for Immigration and Border Protection[2019] FCAFC 48; (2019) 269 FCR 184 (AON15)(Besanko, Middleton and Mortimer JJ) the Full Court usefully discussed some of the main authorities.

1. The Act provides that a person is only considered to have a ‘well founded’ fear of persecution if three elements are satisfied.

   (a)They fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;[12] and

   (b)There is a real chance that, if they are returned to their home country, they would be persecuted for one or more of those reasons;[13] and

   (c)The real chance of persecution relates to all areas of the receiving country.[14]

   [12] Migration Act 1958 (Cth), s 5J(1)(a)

   [13] Migration Act 1958 (Cth), s 5J(1)(b)

   [14] Migration Act 1958 (Cth), s 5J(1)(c)

2. In the event that a person fears persecution for one or more of the prescribed reasons, the Act imposes the following three further requirements[15]:

   (a)The identified reasons(s) for the persecution must be the essential and significant reason(s) for the persecution;

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

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

   [15] Migration Act 1958 (Cth), s 5J(4)(a)(b)(c)

3. A person will not have a well-founded fear of persecution if effective protection measures are available to the person in their home country or if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in their home country.[16] In determining whether a person has a well-founded fear of persecution, any conduct engaged in by that person in Australia is to be disregarded unless the person satisfies the tribunal they engaged in the conduct otherwise then for the purpose of strengthening their claim to be a refugee.[17]

   [16] Migration Act 1958 (Cth), s 5J(2) and (3)

   [17] Migration Act 1958 (Cth), s 5J(6)

4. 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 consequences 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) & (2B) and extracted in the attachment to this decision.

1. An applicant is considered not to be at real risk of suffering significant harm in a country if it is reasonable for the applicant to relocate to an area of that country where there is no real risk that the applicant will suffer significant harm[18],or the tribunal is satisfied that the applicant could obtain protection from an authority all that country such that they would not be a real risk that the applicant would suffer significant harm or the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is less than a real risk.[19]

   [18] Migration Act 1958 (Cth), s.36(2B)(a)

   [19] Migration Act 1958 (Cth), s.36(2B)(b).

1. The tribunal has concluded that the decision to refuse the applicant a protection visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the tribunal has had regard to:

   (a)The delegate’s decision record;

   (b)The applicant’s original written visa application;

   (c)All written material filed by or on behalf of the applicant in relation to this case;

   (d)Other relevant documents on the Tribunal and Department files;

   (e)The ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs’[20];

   (f)Country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, also mandatory considerations under Direction No. 84.

   [20] These are mandatory considerations as prescribed by Ministerial Direction No. 84, a direction made under s.499 of the Act (Direction No 84)

2. Not all the evidence and material that has been placed before the tribunal is specifically referred to in the tribunal’s reasons set out below. The reasons refer to information that is materially significant to the determination of the issues at hand.

CONSIDERATION OF CLAIMS AND EVIDENCE.
Applicant’s Background.

1. The applicant [an age] year old citizen of China. He provided a copy of his passport to the Department corroborating this claim. He does not claim to hold citizenship of any other country. He provided the Department with sufficient evidence of his identity which is consistent with his narrative and biometrics. As such, I accept his identity is as set out in the application.

Protection Claims.

1. The applicant’s protection claims are set out in his original visa protection form and set out in the delegate’s decision as follows (the claims):

   (a)  The applicant borrowed a large amount of money from a loan shark to pay for his mother’s medical expenses;

   (b)  Loan sharks began to visit the applicant’s home and work place and the applicant lost his job because of this;

   (c)  The applicant had no income and was unable to repay the loan;

   (d)  The debt collectors threatened the applicant, and his family, with physical harm and also made death threats against him;

   (e)  The applicant reported this to police but the police did not solve the problem;

   (f)   The applicant fled China for Australia so he could earn money in Australia to repay his loan;

   (g)  The creditors are very powerful and can find the applicant anywhere he goes in China.

2. The applicant was given the opportunity to provide all the details of the protection claims. The application form that they completed informed them that they should provide all of their claims for protection and all documentation or other evidence to support their claims. On 15 October 2020 the applicant was sent an acknowledgement of their valid application letter which advised them that they could provide further information relating to their claims. The applicant provided no further documentation in support of the claims contained in his original protection visa application.

3. The applicant did not respond the Department’s correspondence and on 27 April 2021 the application was determined on the papers by the delegate.

Country Information.

1. The Department of Foreign Affairs and Trade (DFAT) most recently published an information report about China in October 2019 (the DFAT Report)[21]. The DFAT report contains limited information about illegitimate money lenders and ‘loan shark’ practices in China.[22] THE DFAT report refers to media reports of creditors reverting to physical violence and threats against borrowers in order to recoup their debts. However, whilst DFAT considers such reports plausible[23], it has been unable to verify such claims therefore is unable to opine on a view as to the prevalence of loan sharks and mistreatment of borrowers in China.

   [21] Department of Foreign Affairs and Trade, DFAT Country Information Report: China (3 October 2019)

   [22] See, generally, the DFAT Report at [3.236]

   [23] DFAT Report at [3.237]

2. Due to China’s lack of a uniform credit system, largely unregulated ‘underground banks’, ‘shadow banks’ or ‘shadow lenders’, make up a large proportion of the country’s credit market. Shadow lenders can operate at many levels, from ‘on-line microlenders’ providing small consumer credit loans to large schemes involving billions of dollars in funds. Such schemes charge high interest rates, from 10 to 15per cent per month, up to as much as 1000 per cent in a year. Shadow lenders reportedly have links to organised crime gangs, and use a range of tactics to enforce payment, such as intimidation, blackmail, violence and kidnapping.[24]

   [24] ‘China ‘granny gang’ jailed in lending clampdown’, Financial Times, The (FT.com) - United Kingdom, 11 August

3. Country information indicates that clients of shadow lenders typically come from poor backgrounds, have limited access to formal credit, have been blacklisted by the formal banking system, or are otherwise considered to have a credit risk. These lenders often provide loans to borrowers without traditional credit checks.

4. Country information also indicates that the underground shadow banking system operates in a grey area of the economy. In some circumstances shadow banking operates in a quasi-legal manner, while in other circumstances shadow banking operations are illegal. Shadow banking is largely unregulated in China.[25] While the shadow banking system has operated in the past with the implicit approval of the Chinese authorities,[26] a government crackdown on shadow banking in China has taken place under President Xi Jinping who became president in 2012.[27] Numerous recent reports were located of Chinese authorities cracking down on the operations of both large and small shadow banks and lenders, with the police arresting several thousand people in numerous cases involving funds totalling hundreds of billions of dollars.[28] Information was located stating that despite the unregulated nature of the industry; up to a quarter of civil cases in Chinese courts involve shadow lenders, often with the lender pursuing debtors in default of loans.[29]

   [25] ‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 1 October 2014, pp. 1-4, CISEC96CF17389; ‘China

   [26] ‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 34, October 2014, pp. 1-4, CISEC96CF17389 

   [27] '$527 Million Seized, 16,200 Arrested in Loan Shark Crackdown', Ren Qiuyu, Caixin Media, 26 February 2019, 20190227090729; ‘Xi Jinping’s war on shadow banking spills over, rocking China’s wider financial world’, South China Morning Post, 10 February 2018, CXBB8A1DA36449; ‘With Jail Sentences and Corporate Flameouts, China Is Tackling

   Its Debt’, New York Times, The, 10 May 2018, CXBB8A1DA36450 

   [28] ‘Chinese police probe 20-billion-yuan underground bank trade’, Xinhua (net) also News.cn also China View, 23

   [29] ‘Shadow Banking Cases Threaten to Overwhelm China's Courts’, The Diplomat, 05 June 2015,

   CISEC96CF110356  

1. A 2014 paper on shadow banking in China states that shadow banks are unregulated and ‘are not licensed to raise deposits or make loans.’[30] The report highlighted however that these shadow banks are often deeply interconnected with the formal banking sector in China and operated (at least at that time) ‘with implicit government guarantees.’[31]

   [30] ‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 1 October 2014, pp. 1-4, CISEC96CF17389 

   [31] ‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 1 October 2014, pp. 1-4, CISEC96CF17389 

2. Despite this, more recent country information indicates that the Chinese authorities have arrested and detained significant numbers of people involved in the shadow banking industry.[32] In May 2018, a loan shark and fourteen associates were pursued by Chinese authorities and sentenced to two to 25 years imprisonment for ‘loan sharking’ and other gang-related activities.[33] Other instances of authorities taking action against illegal money lenders and debtors include authorities arresting more than 800 suspects for involvement in underground banks and loan sharks involved in extortion in 2017.[34]

   [32] '$527 Million Seized, 16,200 Arrested in Loan Shark Crackdown', Ren Qiuyu, Caixin Media, 26 February 2019, 20190227090729; ‘Chinese police probe 20-billion-yuan underground bank trade’, Xinhua (net) also News.cn also China View, 23 November 2017, CXC90406618159; ‘China busts underground bank in Guangzhou: China Daily’, Reuters, 26

   [33] ‘Loan Shark Linked to Debtor’s Death Gets 25 Years’, Caixin Media, 11 May 2018, CXBB8A1DA29051

   [34] ‘China rewards graft whistle-blowers, gives informants protection’, Global Times, 07 August 2018,

3. Chinese law contains various provisions that explicitly prohibit threatening or harming informants in criminal cases, as well as providing protections for whistle-blowers in corruption cases.[35] In addition, Chinese authorities have introduced various initiatives to encourage whistle-blowing of official and corporate corruption.[36] In practice, however, many witnesses in criminal trials are reluctant to testify for fear of harm from the defendants, particularly in cases involving organised crime or official corruption, or, in the case of defence witnesses, fear of harm from the police or other government officials.[37]

   [35] ‘CHN104967.E China: Structure of the public security police; whether witness protection programs exist for

   [36] ‘DFAT Country Information Report: People’s Republic of China’, DFAT, 21 December 2017, s. 5.5, CISEDB50AD7983 

   [37] ‘DFAT Country Information Report: People’s Republic of China’, DFAT, 21 December 2017, s. 5.5, CISEDB50AD7983 

4. In regards to the police force’s ability to provide protection, the police undertake four-year training programs that include courses in procedural law and public order, as well as extensive physical training.[38] Performance is statistics-driven and a national ranking system provides incentives for compliance.[39] DFAT advises however that, ‘Maintaining public order and social stability – defined as defending CCP rule – are the key priorities of the police force in China and outweigh protection of the public from criminal activity.’[40]

   [38] Ibid

   [39] Ibid

   [40] ‘DFAT Country Information Report: People’s Republic of China’, DFAT, 21 December 2017, s. 5.6, CISEDB50AD7983 

5. Some country information states that the effectiveness of policing in China is compromised because police are mandated with solving a high rate of their cases and that police in some counties are unable to pursue criminals outside of their jurisdictions due to a lack of resources or authority.[41]

   [41] Getting away with murder lies, damned lies, and Chinese police statistics, Lowy Institute: the interpreter, 23 January 2018,

   CXBB8A1DA25532 

6. The UK Home Office recently noted that state protection from non-state actors is available in China. In their March 2018 report, the UK Home Office assessed ‘Whilst the police force is highly susceptible to political interference and corruption, in general a person is likely to be able to obtain state protection against persecution or serious harm from non-state actors. However, this should be carefully considered on the facts of each case, taking full account of the individual circumstances of the person.’[42]

   [42] "Country Policy and Information Note: China: Background information, including actors of protection and internal relocation", UK Home Office, 01 March 2018, OG9EF767913

7. The tribunal has regard to the country information set out in the delegate’s decision in relation to availability of police protection in China as follows:

   [5.6] The Ministry of Public Security oversees the police force, which is organised into specialised police agencies and local, county, and provincial jurisdictions. The government no longer publicises the size of its police force, but media estimates place the number at around two million. The People’s Armed Police, a paramilitary force responsible for internal security issues such as riots, terrorist attacks, natural disasters and other emergencies, has an estimated 660,000 members. Police undertake four-year training programs that include courses in procedural law and public order, as well as extensive physical training. Performance is statistics-driven and a national ranking system provides incentives for compliance. Local-level police are generally entitled to receive housing and food allowances as part of their monthly salaries, which are calculated according to local conditions rather than a national standard.

   [5.7] Maintaining public order and social stability – defined as defending CCP rule – are the key priorities of the police force in China, and outweigh protection of the public from criminal activity. Regular police do not generally carry firearms but can do so in areas of heightened security (such as in Xinjiang and Tibet). Reflecting the power held by the Ministry of Public Security, procuratorate oversight of the police is limited, localised and ad-hoc.

   [5.18] DFAT assesses that a lack of separation of powers creates structural vulnerabilities within the judicial system. Judicial autonomy is limited in cases that authorities consider politically sensitive or that involve vested economic or political interests. Public confidence in the ability of courts to enforce judgements, particularly in rural areas, remains low.

   Credibility.

8. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the tribunal must assess whether the applicant’s claims are credible. Credibility is assessed having regard to the individual circumstances of the case and the evidence before the tribunal.[43] In making this assessment, the Tribunal is mindful of the difficulties faced by refugee applicants, 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 answers 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 taken into account in these findings.

   [43] Department of Human Affairs, PAM 3: “Refugee Law Guidelines:, [15.3]

9. The mere fact that a person claims fear of persecution for a particular 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[44] 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. Although the concept of onus of proof is not appropriate to administrative enquiries and decision making[45], the tribunal must nevertheless be satisfied that there is a reasonable evidentiary foundation that sustains an applicant’s claims. If there is no foundation, the tribunal is obliged to reject those claims. 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 sufficient 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^.[46] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[47]

   [44] MIEA v Guo & Anor (1997) 191 CLR 559 at 596

   [45] Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288

   [46] Migration Act 1958 (Cth) s.5AAA

   [47] MIEA v Guo (1997) 191 CLR 559 at 596

1. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility[48]. Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [48] Minister for Immigration and Ethnic Affairs and McIlhatton v Guo Wei Rong and Pam Run Juan (1996) 50 ALD 445 per Foster J at p.482

1. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt where they are unable to fully substantiate their claims[49].  However, this only applies if the tribunal is satisfied as to the applicant’s general credibility in the case at hand.[50] An applicant is not entitled to have claims accepted simply because there is a mere possibility that they might be plausible.[51] 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.

   [49] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3]

   [50] SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107

   [51] SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17]

2. The tribunal is not obliged to assist the applicant make their case. Nor is it required to accept uncritically and or all of their claims. It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[52]

   [52] Migration Act 1958 (Cth), s.5AAA(2)

Credibility of the Applicant’s Claims in this case.

1. The tribunal recognises that illegal money lenders operate in China, as they do in many countries, and that they will often employ intimidatory and physically violent methods against borrowers who fail to repay their debts when they fall due. However, any general observations that may be made about the occurrence of such illegal money lending practices do not, without more, provide a logical foundation for concluding that the applicant’s case for a protection visa has merit.

2. In this case, the applicant has not participated in a hearing before the tribunal in circumstances in which his credibility is potentially a major issue. The applicant’s claims, referred to in paragraph 22 are vague and non-specific. There is no evidence in relation to many matters the tribunal considers essential to enable it to make a realistic assessment of the claims. For example, the sum of the alleged loan, when it was made, the alleged repayment obligations or the identity of the creditors. In relation to the alleged threats, there are no specific evidence of the dates of those alleged threats or the content or circumstances of the threats. The applicant asserts that he fled to Australia to enable him to work and repay his loan. He has provided no evidence in relation to his employment in Australia or any progress he has made in relation to repaying his loan. There is no indication as to the nature of the creditor’s ‘power’ nor is there any evidence in relation to the applicant’s ability to re-locate within China, save for the applicant’s statement, to the effect his creditors ‘can find the applicant anywhere he goes in China.’

3. In relation to the applicant’s claims that he reported matters to the police, he simply states police ‘did not solve the problem’. In his written application, he stated ’nothing happened’ following making a police report. He provided no evidence in relation to the making of a police report, such as the date upon which he made it and where he reported it to. In relation to the applicant’s statements in relation to the police’s ability to protect him, I reject his evidence. It seems from the available country information that the authorities in China have turned their attention to the underground banking system and provided some protection to Chinese citizens who have been persecuted by debt collectors or money lenders. There was no opportunity to put to the applicant matters such as the country information to the effect that citizens falling victim of loan shark illegal activities are being protected in China. Whilst I have considered the applicant’s claims that the police did not provide him with assistance, I agree with the delegate’s assessment that greater weight should be placed on independent country information detailing the authorities’ actions against criminals. I find that the authorities in China are willing and able to provide effective protection to the applicant from underground money lenders. I find that there is no evidence of impediments to the applicant in accessing such protection.

4. The tribunal is not in a position to test the veracity of the applicant’s claims without him presenting himself for questioning at a hearing. The applicant provided no documentary evidence which might be capable of corroborating any of his claims. He also failed to provide any response to the Department’s invitation to provide further information. In these circumstances, the tribunal does not accept any of the applicant’s claims.

5. One further matter. The tribunal has reviewed the applicant’s written application for a student visa. It reveals that the applicant arrived in Australia on 14 May 2018 on a student visa and enrolled in a [course]. These courses seem related to the applicant’s stated work experience [in] China over a claimed 8-year period. He did not apply for a protection visa until 13 October 2020, over 28 months after he first arrived here. In the absence of a logical explanation for the delay in applying for a protection visa, the tribunal weighs this delay against the applicant.

Factual Findings.

1. In this case, the tribunal is satisfied that the applicant is a citizen of China and of her general personal background as described by the applicant in her evidence before the Tribunal, and the delegate and his original protection visa application. In this respect the tribunal finds:

   (a)The applicant is a citizen of China.

   (b)China is the country of reference for the purpose of assessing his application against the criteria for the grant of a Subclass 866 visa.

   (c)The tribunal rejects the applicant’s claims in their entirety. In particular, the Tribunal does not accept the following core aspects of the Applicant’s claims:

   a.    that the Applicant borrowed money from a money lender;

   b.    that a debt to a money lender has fallen due and remains owing;

   c.    that the Applicant may be harmed, or threatened with harm, upon her return to China as a result of an outstanding debt.

2. In the circumstances, considering the applicant’s individual circumstances on a cumulative basis, the tribunal finds there is no real chance that in the reasonably foreseeable future the applicant would be persecuted for any reason. Any fear the applicant has is not well founded as required by s.5J of the Act. Accordingly, the tribunal finds the applicant does not meet the refugee criterion.

Does the applicant meet the Complementary Protection Criterion?

1. A person will meet the complementary protection criterion if they are a non-citizen in Australia in respect of whom the tribunal is satisfied that Australia has protection obligations because the tribunal 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 [they] will suffer significant harm.[53]

   [53] Migration Act 1958 (Cth), s 36(2)(aa)

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

3. 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.

4. For the reasons set out above, the tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to China, there is a real risk the applicant will suffer significant harm.

Conclusion

1. The tribunal is not satisfied that the applicant meets either the refugee criterion or the complementary protection criterion.

DECISION

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

D Triaca
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   (b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

   (i)the relevant State; or

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

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

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

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

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

…

1. Protection visas – criteria provided for by this Act

…

1. A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

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CXC90406617652; ‘China murder case shines spotlight on loan sharks’, Financial Times, The (FT.com) - United

Kingdom, 30 March 2017, CXC90406624781 

mounts massive crackdown on sprawling underground bank network’, South China Morning Post, 17 August
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CXC90406617642 

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China Morning Post, 17 August 2016, CX6A26A6E8287  

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China Morning Post, 17 August 2016, CX6A26A6E8287  

CXBB8A1DA36466; ‘New Rules Offer Greater Protection and Incentives to Whistle-blowers in China’, Global

Compliance News, 04 May 2016, CX6A26A6E31159 

those fearing organized crime groups (2014)’, Canadian IRB: Immigration and Refugee Board of Canada, 10
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17 June 2017, CXBB8A1DA36465