2300156 (REFUGEE) - [2024] ARTA 147

2300156 (REFUGEE) [2024] ARTA 147 (10 DECEMBER 2024)
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2300156

Tribunal:Glen Cranwell
Place:Brisbane
Date:10 December 2024

CORRIGENDUM
Date of Corrigendum:23 January 2025

Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alteration is made to the statement of reasons for the decision:
Paragraph 79 of the statement of reasons for the decision is altered to read:
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). This requires the Tribunal to consider whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicant will suffer significant harm.
Statement made on 23 January 2025 at 11:21am
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2300156

Tribunal:Glen Cranwell
Date:10 December 2024

Place:Brisbane
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 10 December 2024 at 10:10am
CATCHWORDS
REFUGEE – protection visa – China – particular social group – one-child policy – forced contraceptive surgery – social compensation fee – threats from money lenders – internal relocation – delay in applying for protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 December 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a national of China, applied for the visa on 2 August 2021.
The applicant appeared before the Tribunal on 5 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
Evidence before the Department
The applicant’s claims were relevantly set out in his protection visa application as follows:
I have 4 children. Because of the one child policy. I was arrested and tortured. My wife was forced to go under contraceptive surgery. Her health was destroyed by those inhuman surgeries. Then, she passed away. I continue suffering the persecution of Chinese government. I had to leave China for my own safety. I will attached (sic) full claim statement later.
…
I was hiding in different places from the authorities just want to have a safe life. But police found me and my family. Then, we suffered more harm. I will attached (sic) full claim statement later.
…
I will be arrested or continue getting harm if I return to China. I will attached (sic) full claim statement later.
No “full claim statement” was provided by the applicant to the Department.
The Departmental file also contains evidence that the applicant travelled to Australia on a tourist visa with two other persons, described in the tourist visa application as his wife and daughter.
Evidence before the Tribunal
At the hearing, the applicant told the Tribunal that he had a lawyer to assist him in preparing the protection visa application.
The Tribunal went through the applicant’s travel history with him. The applicant agreed that he arrived in Australia [in] October 2021 on a tourist visa. The applicant also agreed that the tourist visa expired [in] January 2013, and that he was in Australia unlawfully until he applied for the protection visa application on 2 August 2021.
The Tribunal asked the applicant what he feared if he were to return to China. The applicant stated that he experienced persecution because of the family planning policy, and had debts which he has yet to repay.
In relation to the family planning policy, the applicant stated that he had four children. He confirmed their dates of birth as being [specified dates]. The applicant agreed that his youngest child was now [age] years of age.
The applicant stated that when he and his wife had their second child, they secretly gave birth to the child at a different place and sent her to live with relatives. The child did not grow up under their care.
The applicant stated that when he and his wife had their third child, they again secretly tried to give birth at a different place. However, they were discovered and sent back to their usual residence.
The applicant stated that he and his wife were required to pay fines after they were sent back. His wife was also forced to receive contraceptive surgery. His wife was already one or two months pregnant with their fourth child when she received the contraceptive surgery.
The applicant stated that after his wife gave birth to their fourth child, he was required to pay more fines. He did not have the money to pay the fines, so he was arrested. The authorities tied him to a tree for a day, then locked him up for a further three days. The applicant was also beaten and not fed.
The applicant stated that he borrowed money to pay the fines from friends and family. After he borrowed the money, he worked hard to earn money. His wife was not in good health following the birth of their fourth child. His mother was so angry about the situation that she had a stroke.
The applicant confirmed that his arrest took place in 1992 following the birth of their fourth child.
The applicant stated that after this, he spent time out of town working. Due to his wife’s ill health, he had to borrow a lot of money from friends and family.
The applicant stated that he came to Australia in 2012 as he could not afford to repay the money he had borrowed. His children were grown up.
The Tribunal asked him about the Departmental records showing that he came to Australia on a tourist visa with his wife and a daughter. The applicant stated that he came to Australia with a woman and daughter who he was not related to. He paid to have the application completed and did not know what was on the application as he does not speak English.
The applicant stated that his wife passed away in China [in] November 2018 while he was in Australia. His second daughter still lives in China, but the rest of his children now live abroad.
The Tribunal asked the applicant what sort of work he did in China. The applicant stated that he did not have a proper job. He undertook casual building work for other people.
The Tribunal asked the applicant whether he had any evidence of the loans. The applicant stated that he did not have any evidence.
The applicant stated that he was been working Australia, and has repaid part of the debt. However, some of the debt is still owing.
The Tribunal asked the applicant why he delayed until 2021 to apply for a protection visa, given he had been unlawful since 2013. The applicant stated that he did not know he could apply for a protection visa earlier than this. He applied for a protection visa during the Covid restrictions. He needed identification to go anywhere during Covid, and could not find a job. He asked around and his friends told him about the procedure for applying.
The Tribunal put to the applicant country information that exit and entry to China is strictly regulated. If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China.[1] This suggested to the Tribunal that the applicant was not of interest to the Chinese authorities at the time he left China in 2012.
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report: China, 22 December 2021 (“DFAT Report”) at [5.31]-[5.33].
The applicant stated that the fine had been issued and he had paid it. It was not a big issue and the authorities were no longer interested in him.
The Tribunal also put to the applicant country information that the family planning policy had been changed since the applicant left China. Social compensation fees levied against people with “out of plan children” had been abolished. Enforcing child limits has become a low priority for the authorities.[2] This suggested to the Tribunal that the applicant would no longer be of interest to the Chinese authorities on the basis of the number of children he had.
[2] DFAT Report at [3.119]-[3.121].
The applicant stated that he was opposed to the one child policy.
The Tribunal put to the applicant that the one child policy had been abolished. The applicant agreed with this.
The Tribunal asked the applicant why he feared harm if he returned to China in these circumstances. The applicant stated that if he does not repay his loans, he will definitely be harmed.
The Tribunal put to the applicant that if he borrowed money from his family and friends, it is unlikely that they would harm him for not repaying the loan. The applicant stated that initially the loans were from family and friends, but later the loans were also from acquaintances.
The Tribunal put to the applicant that he had not claimed to have been harmed in the 20 year period since he started borrowing money in 1992 until he came to Australia in 2012. The applicant stated that he was not harmed at the time. However, after the lenders learned that he had come to Australia, they surrounded his place and asked for money from his wife everyday.
The Tribunal asked what happened when his wife did not repay the money. The applicant stated that that some lenders got physical and some took valuable items which were moveable, such as furniture.
The Tribunal asked the applicant why he did not mention his fear arising out of the loans in his protection visa application. The applicant stated that he did not know. He was told by his lawyer to rely on the one child policy.
The Tribunal put to the applicant that if it did not consider he had a reasonable explanation for not raising his claims relating to the loans before the Department, it was required to draw an inference adverse to the credibility of the claims. The applicant stated that his lawyer did not explain too much to him. His lawyer did not care very much.
The Tribunal put to the applicant several concerns, including that he had no evidence of the loans and that he was not harmed by the lenders in the 20 year period before he left China. This suggested to the Tribunal that the lenders were unlikely to harm the applicant in the reasonably foreseeable future as a result of the loans. The applicant stated that if he went back he would be expected to repay the loan.
The Tribunal put to the applicant that there was a difference between being asked to repay money owing, and being harmed if this did not occur. The applicant stated that he would definitely be harmed.
The Tribunal asked how much he owed. The applicant stated that he owed RMB [amount]. He had owed a total of RMB [amount],000, but had repaid RMB [amount].
The Tribunal put to the applicant that RMB [amount] was approximately AUD [amount]. While this was a substantial amount of money, it was nevertheless an amount which he could work to repay over time. The applicant stated that he would not be able to find a job. He had saved more money to repay his debts, but had lost some of it due to gambling in Australia. He did not gamble in China.
The Tribunal put to the applicant country information that “usurious loans” are prohibited under China’s Civil Code, which came into force on 1 January 2021. The authorities had also cracked down on usurious loans.[3] This suggested that the applicant would be able to seek the protection of the Chinese authorities against any harm by the lenders.
[3] DFAT Report at [3.123]-[3.125].
The applicant stated that the authorities only care about major lenders not smaller ones. If they come and beat you up, they would not care if you have minor injuries. They would only focus on cases with major injuries. They debt collection is always done privately, and the authorities do not care.
The Tribunal put to the applicant that the changes had taken effect since he left China in 2012. The applicant stated that the changes are only on the surface. He had a high interest rate loan.
The Tribunal discussed with the applicant the possibility that he could relocate elsewhere in China to avoid the attention of the lenders. The Tribunal asked the applicant where he worked when he worked out of town. The applicant stated that he stated in Guangzhou for around three years.
The Tribunal put to the applicant country information that internal migration has been a key feature of Chinese economic and social life for decades, and that a third of the population live in a place other than where their residents is registered with a local government.[4] The Tribunal asked the applicant why he could not avoid the lenders by relocating to another place like Guangzhou.
[4] DFAT Report at [5.24].
The applicant stated that if you want to go outside of your town, you have to sign a document and obtain a temporary residence permit. They made the rules more strict and he could not get a temporary residence permit to stay in Guangzhou, so he had to return to Handan City.
The applicant stated that he had an injured leg, and would be unable to work to repay the loan if he returned to China. The applicant stood up and started to limp, but the Tribunal asked him to sit back down and stated it was not in a position to conduct a physical examination. The Tribunal asked whether he had any medical evidence to support his claim. The applicant stated that the doctors could not identify any issue with his leg. It may have been a dislocation.
The Tribunal reiterated its main concerns, including the lack of evidence of any loans and that the lenders had not harmed him in the 20 year period before he left China. The applicant stated that he had screen shots on his mobile phone showing he had been asked to repay the money. His children had been persecuted and had all left home.
The Tribunal put to the applicant that one of his children still lived in China. The applicant stated that his second daughter still lived at the same address. She shares this residence with the applicant’s father. The applicant went on to state that in 2022 or 2023 his other children were unable to stay at the home due to the lenders, and went to [Country 1] through human trafficking.
The Tribunal put to the applicant that on his account he had left China because he owed money, but had left his wife and children behind in circumstances where they could be located by the lenders. The applicant stated that he did not have any way out. He could not earn money in China. He had no money to pay for his wife’s medical treatment, and the only way he could afford to repay the loan was to come here.
The Tribunal put to the applicant that he had not provided any screenshots or other evidence of the loans. The Tribunal asked the applicant whether he had his mobile phone with him. The applicant produced his mobile phone, and showed a message to the interpreter. The interpreter stated it was a message on WeChat. The message was a photograph of a document. The document showed that RMB [amount] had been borrowed in 2011. On [a date in] July 2021, RMB [amount] had been repaid. [In] February 2022, a further RMB,[amount] had been repaid. [In] May 2022, RMB [amount] was repaid. [In] October 2022, a further RM [amount] was repaid. [In] August 2023, another instalment of RMB [amount] was repaid.
The Tribunal asked the applicant how much he had paid to come to Australia. The applicant stated that it had cost him RMB [amount], including his passport, visa and “gifts” paid to persons involved in the process.
The Tribunal put to the applicant that [this amount] he paid to come to Australia was now more than the amount of RMB [amount] outstanding on the loan. The applicant agreed with this, but noted that he spent more than RMB [amount] on medical treatment for his wife.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The Department file includes a copy of the applicant’s Chinese passport. Given this and the absence of any evidence to the contrary, the Tribunal finds that China is his country of nationality and also his receiving country for the purposes of the definition in s 5(1) and s 36(2)(aa) of the Act.
Does the applicant satisfy the refugee criterion for protection?
Family planning policy

The applicant provided consistent evidence, both in his protection visa application and before the Tribunal, regarding his family planning policy claims. The Tribunal accepts that:
·the applicant and his late wife had four children;
·the applicant’s late wife was forcibly sterilised;
·the applicant was required to pay fines for breaching the Chinese family planning policy;
·the applicant was detained and beaten by the authorities following the birth of his fourth child in 1992;
·the applicant’s wife suffered ill health after the birth of their fourth child and died in 2018.
In making these findings, the Tribunal has concluded that the applicant’s statements on his tourist visa application that he was travelling to Australia with his wife and daughter were false. As the applicant subsequently explained at the hearing, he paid RMB [amount] to come to Australia, including “gifts” paid to persons involved in the process. The Tribunal considers that the information provided to the Department in relation to the tourist visa application was false information with the objective of obtaining a visa in circumstances where the applicant might not otherwise have been able to obtain one.
However, the Tribunal finds that the risk that the applicant would be harmed as a result of his family planning policy claims is remote. The last interaction the applicant had with the Chinese authorities on these issues was in 1992, where he paid a fine after a brief period of detention. He was able to exit China in 2012 without attracting the interest of the Chinese authorities, in circumstances where he would likely have been prevented from leaving had he been of interest. The applicant’s children are now all adults, and the one child policy has been repealed. At the hearing, the applicant agreed that the authorities were no longer interested in him in relation to his breach of the family planning policy.
Loans
The Tribunal accepts that the applicant has borrowed money. He initially borrowed money to pay the fine for breaching the Chinese family planning policy. Later borrowings were to pay for his late wife’s medical treatment and to fund his travel to Australia. The Tribunal considers the applicant’s claims to have borrowed money to be plausible given the number of children the applicant was required to support and his limited income as an unskilled building labourer.
The Tribunal found it persuasive that the applicant was able to produce a message on his mobile phone from WeChat without previously being told that he would be asked to do so. As set out above, the interpreter read this message which showed an amount of RMB [amount] was owing in 2011, which had been reduced to RMB [amount]. This is broadly consistent with the applicant’s evidence of having borrowed RMB [amount] with RMB [amount] still owing.
The applicant’s use of the WeChat app in particular is also consistent with country information regarding the use of WeChat by loan sharks. Fortune magazine described the WeChat social media platform as providing loans of up to USD 30,000, approved in a matter of minutes based in part on:[5]
data gleaned from a user’s social network history to gauge a person’s creditworthiness in seconds... How much you spend on restaurants and cabs, which are also part of WeChat’s web of e-commerce, might help determine your creditworthiness. The loans can extend up to 20 months and carry interest rates staring at 0.05% a day...
[5] ‘A $30,000 loan in seconds from a Chinese social network’, Fortune, 14 August 2015, CXBD6A0DE21398.
The Tribunal notes that the applicant did not make any claims regarding the loans before the Department. The applicant’s explanation was that he was not advised to do so by his lawyer. It is evident from the protection visa application that there were further details the applicant wished to provide, with him having indicated that he would provide a “full claim statement later”. He also received advice from his lawyer to rely on the one child policy. The Tribunal considers this to be a reasonable explanation for the purposes of s 367A of the Act, and has not drawn an adverse credibility inference on account of the applicant not having mentioned these claims earlier.
For completeness, the Tribunal accepts the applicant’s explanation for his delay in lodging a protection visa application, namely that he was not aware of the existence of this avenue until told by friends during the Covid restrictions. The applicant’s lack of English language skills, and the consequent difficulties in accessing information in Australia, is consistent with this lack of awareness. The Tribunal also does not draw any adverse inferences due to his delay in lodging the application.
Harassment by lenders
The Tribunal accepts the applicant’s evidence that he came to Australia as he was unable to service his loans on his income in China. The Tribunal considers this to be credible. As noted above, the applicant would have had limited income available to him as an unskilled building labourer.
The Tribunal accepts the country information set out above which indicates that new laws have been introduced in China’s Civil Code on 1 January 2021, and there have been crackdowns on loan shark activity. However, despite these developments, reports indicate that loan sharks remain active. For example, in March 2021, a gang of loan sharks was found to have caused the deaths of 89 people after they hired debt collection companies to harass and intimidate borrowers who had no feasible avenue to pay off their obligations. One article recorded that:[6]
A gang of loan sharks in China caused the deaths of 89 people after the crime ring hired debt collection companies to harass and intimidate borrowers who had no feasible avenue to pay off their obligations, according to Chinese state broadcaster CCTV.
[6] 'A multi-billion dollar criminal lending scheme resulted in 89 deaths in China: CCTV', South China Morning Post, 29 March 2021, 20210622130538.
Another article recorded that:[7]
The predatory lending of a Northwest China gang led to the criminals illegally pocketing 2.8 billion yuan ($428 million) and driving 89 people to commit suicide, according to a recent state media report.
…
In the debt collection process, the gang threatened borrowers, including by harassing their family and friends and spreading photoshopped obscene images.
[7] ‘Loan Shark Gang Pocketed $430 Million as It Drove 89 to Suicide', Caixin Global, 28 March 2021, 2022022412192.
The Tribunal accepts that lenders surrounded the applicant’s residence, asking his late wife for money daily. On occasion they were physical and took moveable items of value, such as furniture. The Tribunal considers this to be credible as the applicant stated that this occurred after the lenders found out that he was in Australia, which likely led the lenders to perceive that the applicant had the capacity to repay the loan.
The Tribunal also accepts that the applicant’s children continued to experience harassment after his wife died, and that three of his children have relocated to [Country 1] to avoid the lenders.
The Tribunal accepts that the applicant would likely be asked by the lenders to repay the outstanding loans if he were to return to China. The Tribunal considers that the lender’s knowledge of the applicant’s presence in Australia would cause them to perceive that he had increased means to repay the loans. In this respect, the applicant’s position would be different than before he left China in 2012.
The Tribunal does not accept that the applicant is incapacitated from working due to a leg injury. The applicant conceded at the hearing that he has no medical evidence to support these claims as the doctors could not find anything wrong with his leg. However, the Tribunal notes that the amount of RMB [amount] outstanding on the loans is similar to the amount of RMB [amount] which was outstanding before the applicant borrowed an addirional RMB [amount] to travel to Australia. If the applicant were to return to China, he would likely find himself in the same position of not being able to service the loans based on his income as a unskilled building labourer even if he did find work.
For the above reasons, the Tribunal finds that the applicant would likely not be able to repay the loans if he were to return to China. The history of harassment of the applicant’s late wife and his children demonstrates that the lenders have an interest in, and capacity for, locating the applicant should he return to China in the reasonably foreseeable future. The Tribunal therefore finds that there is a real chance that the loan sharks will harass and intimidate the applicant were he to return.
In assessing whether there is a real chance that the applicant would experience serious harm at the hands of lenders were he to return to China, the Tribunal has had regard to the articles from March 2021 cited above. The Tribunal considers that the harassment of the applicant’s late wife and children is consistent with the harassment described in those articles. In these circumstances, the Tribunal finds that there is a real chance that harassment by the lenders could result in serious harm to the applicant as that term is used in s 5J(5) of the Act.
However, the Tribunal finds that the applicant’s real chance of serious harm is as a result of a private debt. It is not for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion as required by s 5J(1)(a) and s 5J(4)(a).
Therefore, as the applicant is not a refugee as defined in s 5H(1) of the Act, he does not satisfy the criterion set out in s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). This requires the Tribunal to consider whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that the applicant will suffer significant harm.
For the reasons set out above, the Tribunal finds that there is a real risk that the lenders will harass and intimidate the applicant if he were to return to China in the reasonably foreseeable future. This conduct would be performed with the intention to inflict severe pain and/or suffering on the applicant, as a means to compel him to repay the loans. The Tribunal considers the articles from March 2021 cited above to be relevant, and finds that there is a real risk that harassment by the lenders could result in “cruel or inhuman treatment or punishment” as defined in s 5(1) of the Act, and thereby constitute significant harm to the applicant as that term is defined in s 36(2A) of the Act.
Relocation and state protection
Section 36(2B) of the Act sets out three circumstances in which there is taken not to be a real risk that a non-citizen will suffer significant harm in a country:
(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.
As discussed at the hearing, the applicant has previously attempted to relocate to Guangzhou in China. However, he was returned Handan City because he did not have a temporary residence permit. This is consistent with country information which provides that the hukou system may limit freedom of movement:[8]
It is very difficult to get a hukou in one of China’s major cities like Beijing or Shanghai, which have quotes for new residence permits. A points system to apply for a hukou exists in some cities (over 5 million people) where good employment records, education and housing might be an advantage. Reforms in 2019 have made it easier to get a hukou in medium-sized cities (1 to 3 million residents) and removed limits on key population groups, including graduates of universities and vocational colleges.
[8] DFAT Report at [5.26].
Given the applicant’s employment history as an unskilled building labourer and his lack of formal qualifications, together with his previously unsuccessful attempt to relocate, the Tribunal accepts that relocation is not reasonable in the applicant’s particular circumstances and that s 36(2B)(a) does not apply to him.
The Tribunal acknowledges that there is increased availability of state protection to victims of loan sharks, and that the authorities have implemented crack downs on these activities. However, the articles from March 2021 cited above indicate that this protection is not always sufficient to prevent significant harm. Given the harassment of the applicant’s children by the lenders has continued, with three of them leaving China for this reason, the Tribunal accepts that in the applicant’s particular circumstances the protection he could obtain from the Chinese authorities is such that there would remain a real risk that he would suffer significant harm and that s 36(2B)(b) does not apply to him.
Finally, the Tribunal accepts that the real risk is faced by the applicant personally and not by the population of the country generally.
Therefore, the applicant satisfies the criterion set out in s 36(2)(aa). While not forming part of its reasoning, the Tribunal notes in passing that its conclusions are consistent with those reached by the UK Upper Tribunal in BYW (Anonymity Order Made) v The Secretary of State for the Home Department.[9]
[9] Upper Tribunal, Immigration and Asylum Chamber, 8 February 2024, UI-2023-002844 at [29], [33] and [37].
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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