2438168 (Refugee)
[2025] ARTA 1134
•6 March 2025
2438168 (REFUGEE) [2025] ARTA 1134 (6 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2438168
Tribunal:General Member C Stokes
Date:6 March 2025
Place:Adelaide
Decision:The Tribunal affirms the decisions under review.
Statement made on 06 March 2025 at 3:50pm
CATCHWORDS
REFUGEE – protection visa – China – husband’s failed businesses and financial difficulties – debts to family, banks and financial lenders – unable to repay after car accident – harassed and sued, but no threats or harm – court orders, payment plan and bank account and payment platforms frozen – fear of arrest for non-compliance with orders – physical and mental health – husband’s student visa application refused, with review application in progress – education, work skills and employment prospects – country information – social credit system – restrictions on debtors, including travel and children’s education – social security system – members of family unit children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), (4)(a), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
EZC18 v MHA [2019] FCA 2143
MIMA v S152/2003 (2004) 222 CLR 1
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 then Minister for Home Affairs on 21 September 2024 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of China, applied for the visas on 27 August 2023.
On 11 October 2024, the applicants applied to the then Administrative Appeals Tribunal (AAT) for review. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
The applicants appeared before the Tribunal on 19 December 2024 and 10 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the first applicant’s husband at the second hearing. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were unrepresented in the review.
CLAIMS AND EVIDENCE
Before the Department
Protection visa application
The first applicant claims to be a [Age]-year-old Chinese citizen who was born in Henan China. The second and third applicants are her children who are [Ages]. The first applicant has made claims to fear harm in China.[1] The second and third applicant also made claims for protection for the same reasons as the first applicant.
[1] The first applicant’s husband lodged a student visa application on 25 August 2023 which was refused by a delegate on 13 November 2023. He sought review of that decision in the Tribunal and that has yet to be constituted (Tribunal case 2319646).
In her protection visa application form, under the heading ‘Your reasons for claiming protection’, the first applicant stated that she left China due to her financial debts which involved usury which is very dangerous. She claimed to have been sued by individuals, harassed by debt collectors, and suffered mentally and physically. She claimed to have sought assistance from family and friends, but she is unable to get protection from the authorities. She also claimed that, if she were to return to China, she will be unable to survive and will have her personal safety threatened due to her debts.
Supporting documents
In addition to their protection visa application forms, the applicants provided the Department with copies of the biodata pages of their passports.
Protection visa application interview
The Department did not invite the applicants to attend an interview.
Delegate’s decision
The delegate refused to grant the visas on the basis that the applicants could obtain effective protection from the Chinese authorities such that there would not be a real chance or risk that they would suffer harm.
Before the Tribunal
On 11 October 2024, the first applicant applied for review of the delegate’s decision and provided the Tribunal with photographs of a car accident.
On 18 October 2024, the Tribunal wrote to the first applicant to invite her to provide details of the secondary applicants who were not included on the initial application form. On 21 October 2024, the first applicant submitted an amended application seeking review of the visa refusals for all three applicants.
At the hearing on 19 December 2024, the first applicant gave evidence about her background, her husband’s failed businesses, a car accident and the financial difficulties that they faced in China.
The second applicant gave evidence that she knew that she had applied for a protection visa but didn’t really know what that meant. When asked if she wanted to return to China she said she would like to. When asked if she feared harm in China she said she was worried that they would not been able to financially support themselves and that she may not be able to study.
The third applicant did not wish to give any evidence and the Tribunal did not require her to do so given her young age.
The hearing was adjourned to enable the first applicant’s husband to attend and provide evidence.
On 31 December 2024, the first applicant provided the Tribunal with the following documents along with English translations:
a.an electronic receipt of a payment made on 7 March 2021 by the first applicant to a [Person A] for 17,000 Chinese Yuan
b.a document entitled ‘My account’ in relation to a debit card, flash card account with the [Chinese Bank] opened 31 July 2020
c.a bundle of Xi’an [District] People’s Court documents relating to proceedings involving the first applicant, her husband and a [Persons A and B] dated May 2022
d.a Small Loan Business Collection Notice from the [Bank] dated 24 August 2022 stating that the first applicant borrowed 400,000 Chinese Yuan in July 2020 and she failed to make the repayments required by the contract
e.an account summary for the period June 2016 to May 2017 in relation to an outstanding amount of 101,729,79 Chinese Yuan
f.a summons to the first applicant to attend a court hearing in the Xi’an [District] People’s Court [in] July 2022 in relation to an insurance claim dispute
g.a written statement of the first applicant including 6 photographs of a car accident and the applicant.
At the second hearing the first applicant’s husband gave evidence about his background, visa status, work and study history and plans. He also gave evidence about his failed businesses and financial difficulties that they suffered in China.
Following the second hearing, the Tribunal wrote to the applicants inviting them to comment on concerns the Tribunal had about the claim to fear being arrested on return to China due to non-compliance with court orders.
On 20 February 2025, the applicants provided the following bundles of documents along with English translations:
a.a bundle of certificate of honour awarded to the second applicant between 3 July 2021 and 31 October 2022
b.two bundles of screenshots containing ‘notification information’ of messages between the applicant and various lenders referencing overdue debts dated September and October (the year being unclear)
c.a screenshot of WeChat notifications regarding the funds in a WeChat Change account being frozen under court order dated 2 and 6 December 2023
d.three screenshots relating to Cainiao (a tracking service) deliveries being missed and Sesame Credit scores (a Chinese social credit-scoring system) dated January and April 2024
e.two undated screenshots relating to credit card balances
f.a screenshot of a chat between the first applicant and [Person C] regarding an outstanding account dated 10 March 2023
g.an undated screenshot of a Tenpay balance being ‘frozen and unavailable due to an order from an authorized authority’
h.a judgment dated [October] 2021 by the Xi’an [District] People’s Court ordering the first applicant and her husband to pay 1,700,855 Chinese Yuan to [Persons A and B] within 15 days plus interest. The judgment noted if they failed to pay within that period the shall pay doble the overdue interest in accordance with Article 253 of the Civil Procedure Law.
i.two screenshots of electronic remittance receipts demonstrating payments by the first applicant to [Person A], one dated 2 October 2022 and the other undated
j.a screenshot of messages from the applicant to [Person A] about repayment dated May 2022
k.a photograph of a person’s body covered in a white ointment
l.a written submission of the applicant to the Tribunal dated 16 February 2025
m.written submissions of the first applicant to the Xi’an [District] People’s Court dated [June] 2022 and [July] 2022.
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.
Country information
I have had regard to a range of country information, including the most recent DFAT Report[2] on the situation in China. The information indicates the following:
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report - People's Republic of China (27 December 2024) (DFAT Report)
a. DFAT reports that China has a developing ‘social credit system’ which involves a wide range of different programs at different levels of government aimed to track and monitor an individual’s social behaviour. In-country sources told DFAT in 2023 that debtors were the primary group affected by the social credit system, with restrictions placed on their ability to travel domestically and internationally. The ABC reported in 2019 that 128 people had been prevented from leaving China because of a ‘bad’ social credit score. However, prior to the development of social credit systems, authorities already had the ability to add individuals who had defaulted on court-ordered payments to a Supreme People’s Court (SPC) ‘blacklist’. Being listed on the SPC blacklist restricts an individual’s ability to travel by first-class air and rail, access loans, spend on ‘luxury’ items and access private education opportunities for children. Local media has reported on instances of debtors who had refused to repay their debts being prevented from departing China and detained under the provisions of the Civil Procedure Law (2023).[3]
[3] Ibid [3.171]
b. Chapter 21 of the Civil Procedure Law (2023) provides for enforcement and recovery processes applicable to debtors in the event of failure to perform obligations under a judgment. Those processes include:
i.reporting the debtors property status (if the party refuses to report or submits a false report, the people's court may, according to the severity of the circumstances, impose a fine of no more than 100,000 Chinese Yuan or detention for no more than 15 days)[4]
ii.seizing, freezing, transferring or selling the property of the party[5]
iii.garnishing wages (save for necessary living expenses for the party and his or her dependent family members)[6]
iv.imposing pecuniary payments and late fees for deferred performance[7]
v.restricting exit from China, recording the failure in the credit system and publishing information on the failure in the media.[8]
c. Article 114(6) of the Civil Procedure Law (2023) provides that a court may impose a fine or detention if a party is ‘refusing’ to execute any effective judgment or ruling. Further, Criminal Law of the People's Republic of China (2021) provides that if a judgment debtor has the capacity to perform on a judgment but ‘refuses’ to do so and the circumstances are ‘serious,’ they may be given up to 3 years imprisonment, short-term detention, or a fine; where the circumstances are especially serious, they are to be given between 3 and 7 years imprisonment and a concurrent fine.[9] Serious circumstances include for example where the debtor has disposed of assets to maliciously reduce their obligations, fabricated, destroyed or concealed important evidence related to the ability to pay, used violence, threats or bribery to obstruct others from giving evidence, made it impossible for a judgment to be enforced by refusing to pay over assets, vacate houses etc.[10]
d. DFAT assesses debtors who are subject to a poor social credit score, face a moderate risk of official discrimination in the form of restrictions on their ability to travel domestically and internationally. DFAT assesses those with a poor social credit score face no risk of societal discrimination as a result of their score, however societal discrimination can sometimes occur as a result of having debts leading to the poor score.[11]
e. The World Bank described China in 2023 as an upper middle-income country. Figures show China’s GDP averaged almost 9 per cent growth per year between 1978 and 2022. This period of growth included the COVID-19 pandemic. China’s GDP growth was recorded at 5.2 per cent in 2023, and economists anticipated it would slow in 2024 to 4.8 percent due to longer-term structural trends and external factors. However, economic data on China can be unreliable. In December 2020, President Xi declared success in establishing a ‘moderately prosperous society’ and eradicating extreme rural poverty. Economic development has been uneven, with a large wealth gap between the rich and poor that has been affected over time by large-scale, economically driven internal relocation from rural to urban areas with stronger economies.[12]
f. China provides official welfare through its social security system, which includes pension, medical, unemployment and maternity benefits. In 2023, many services were provided by provincial, county, or municipal authorities, rendering the quality and availability of services dependant on the financial situation of the local government. A subsistence allowance, dibao, is paid to the poor with the rate set by the local municipality. If a person is returned to China without means of family support, DFAT assesses that it would be difficult, but not impossible, to subsist depending on individual circumstances including age, health, ability to work and level of education.[13]
g. International Labour Organization (ILO) data showed that China’s official urban unemployment rate was consistently around 4.5 per cent from 2011 to 2018. Due to the volatile impact of COVID-19 pandemic restrictions, unemployment rose to 5 per cent in 2020, fell to 4.6 per cent in 2021 and then rose again to 4.9 per cent in 2022. China's State Council reported that the surveyed urban unemployment rate was 5.2 per cent in 2023. According to local media in July 2024, the urban unemployment rate was 5.1 percent for the first half of 2024. However, China’s official unemployment rate does not fully capture unemployment among the 290 million-strong migrant worker cohort. In-country sources told DFAT in 2023 that the real rate of unemployment was likely higher, with underemployment a growing problem. In-country sources told DFAT in 2023 that despite China’s shift away from low-cost manufacturing, offshore operations and increases in youth unemployment, the labour market remained robust and could accommodate varying levels of skills and ambition.[14]
[4] Articles 252 and 118
[5] Articles 253 and 255
[6] Article 254
[7] Article 264
[8] Article 266
[9] Article 313
[10] Interpretation on Several Issues Related to the Application of Law in Criminal Cases of Refusal to Perform on Judgements and Rulings (2024), Article 3
[11] DFAT report [3.172]
[12] Ibid [2.10]-[2.11]
[13] Ibid [2.13]-[2.15]
[14] Ibid [2.16] and [2.21]
REASONS AND FINDINGS
The issue in this case is whether one or more of the applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds; and, if one applicant is found to be a person in respect of whom Australia has protection obligations, whether the other applicants are members of their family unit.
For the following reasons, the Tribunal has concluded that the matter should be affirmed.
Country of nationality
The applicants have provided copies of the biodata pages of their Chinese passports. They have consistently claimed to be from China. There are no apparent concerns with the applicants’ identities. The Tribunal is satisfied that the applicants are citizens of China.
There is nothing before the Tribunal to suggest the applicants have citizenship of any other country, or that they have any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal is satisfied that China is their receiving country and has assessed their claims against that country.
The applicants’ personal backgrounds
The applicants arrived in Australia [in] May 2023 on valid FA-visitor visas. Those visas expired on 30 August 2023. The first applicant told the Tribunal her husband assisted her in completing the protection visa application and they waited until 27 August 2023 to apply as they wanted to see if they liked Australia first.
At the first hearing, the first applicant gave evidence (which I accept) that:
a.she was born in Henan China, is ethnically a Chinese Han and is not religious
b.her parents live in Henan China, and she has [brothers] and a sister who all still live in China. She remains in contact with them but not regularly
c.she went to school in China and completed a [subject] course in junior college. After graduating she worked in a [workplace 1] for 4 years and then moved to Xi’an in Shaanxi province where she worked in [work sector 1] and raised her children. She also assisted her husband in relation to a [business 1] and a [business 2] which were both not profitable and caused significant financial difficulties
d.in Australia she started working 2 weeks after arriving and currently has 3 jobs working in [workplaces 2-4]
e.her husband applied for a student visa because after arriving in Australia he decided he wanted to study to get skills to help him find a job here in Australia. He previously worked in [work sector 2] in China and [Region]
f.in 2017, she and her husband borrowed 2.45 million Chinese Yuan from her husband’s friends to invest in the new [business 1]. The agreed interest rate was 1%. They used the funds to purchase 80 machines, employed 13 staff and signed a 5-year lease. However, the business was not profitable and after only 1 year the building was to be demolished by the landlord, so they were driven out. They had trouble selling the equipment and when they did sell it they never received payment. Also, after less than 6 months her husband’s friends asked that they repay them in full but they had already invested the money in the business. They paid the friends about 17,000 Chinese Yuan each month for 2 years. However, following a car accident where they were uninsured, they were unable to continue to make payments
g.in January 2018, she and her husband borrowed a further 1 or 1.17 million Chinese Yuan from a financial lender at a high interest rate. They used this money to invest in [a business 2] which also failed due to covid and [people] not wanting to pay the fees. They had to pay 27,000 Chinese Yuan per month to repay this loan the majority of which was interest. Their monthly costs became unsustainable and after a car accident (where they were uninsured) they were unable to continue to meet their repayments. They sold their family home and cars in 2020 and repaid the 2018 loan. However, they remain indebted to her husband’s friends and to family, banks and financial lenders in relation to credit card and personal loan debts
h.in October 2021 her husband’s friends commenced debt recovery proceedings against them and obtained orders requiring a lump sum payment of 1.17 million Chinese Yuan. When they were unable to pay (a payment plan was refused) their bank accounts, online payment platforms (such as WeChat Pay) were frozen by court order
i.she was harassed by text message and anonymous phone calls, and her parents were also threatened due to her debts to online financial service platforms
j.she has not had contact from her husband’s friends since the court orders were made and a payment plan was refused. They still owe approximately 1.6 million Chinese Yuan due to interest accruing and will try to pay them back when they are able to
k.she fears she will be unable survive if she were to return to China as she would have no access to her bank accounts or payment platforms and no way to make a living. She also fears her children will not be able to access education due to their credit history. She considers the police will not be able to assist as these issues are because of the court order.
At the second hearing, the first applicant gave evidence about the documents she provided on 31 December 2024 and further expanded on her claims (which I accept) as follows:
a.she had a car accident on 16 February 2021 and the insurance company for the other party brought proceedings in 2022 to seek repayment for the cost of repairing the car. She was summonsed to appear in court and she attended a mediation where a payment plan was agreed. She made some repayments in late 2022 but there remains a debt outstanding of approximately 50,000 Chinese Yuan. She received further court notices in relation to this debt since arriving in Australia but no longer has access to her Chinese phone and could not provide a copy of these notices to the Tribunal (although she later gave evidence that she last had access to her Chinese phone 1 month ago)
b.she received notices from the court in relation to the debt owed to her husband’s friends which she provided the Tribunal. She did not respond to the request for a property status report as there was nothing to report given there were no assets left
c.she was unable to provide any evidence in relation to the high interest rate loan they borrowed from a loan shark in January 2018 as she couldn’t find any documents. In any case, they have since repaid this debt
d.she remains indebted to the [Bank] for around 400,000 Chinese Yuan. They borrowed those funds against their house to invest in business but they lost the money and were unable to repay the debt. While proceedings have not been commenced by the bank to recover this debt, she thinks that is because they lost contact with her and she has no access to her frozen accounts
e.she was harassed through telephone calls and text messages by online lenders who she still owes money to, and recently she was contacted through WeChat but she did not accept the message as she feared it was more harassment
f.while she was not previously arrested in China for her non-compliance with court orders and was not questioned by the authorities when leaving China in December 2022, she fears she will be immediately arrested on return to China
g.if she had remained in China she thinks she would have died. It has been mentally a very difficult time for her and she has suffered from white hair, dark spots on her forehead, expanded capillaries, high blood pressure, insomnia, anxiety and urticaria (hives)
h.her daughter, the second applicant, was unable to sit the national college entrance exam because they had not been residents in the city for three years and the only option was to return to their original place of residence to take the exam or wait two more years to try again. It was not possible to return to their hometown due to covid quarantine requirements.
At the second hearing, the first applicant’s husband gave evidence that was largely consistent with the first applicant’s evidence in relation to their debts. He also gave evidence (which I accept) that:
a.they came to Australia as his daughter was unable to sit the national college entrance exam and they thought Australia would be a good choice for her to study
b.he paid for their flights with his salary from working in [Country] as [an occupation] for a [work sector] company
c.on arrival in Australia he applied for a student visa as he wanted to study [a subject] course. He provided the department with a certificate of his savings from his work in [Country] to demonstrate he had the capacity to support his stay in Australia while he studied. While he paid for the tuition and started the course he was refused the visa so he did not continue and is now undertaking self-learning
d.he last had contact with the people he and the first applicant owe money to about 1 month ago. He is still in contact with his creditors quite frequently. He told them his situation and they want them to pay back as much as possible. He has however not received any threats from anyone. He also has not received any further court notices or summonses since arriving in Australia
e.if they were to return to China they would have no way to survive due their debts and accounts being frozen. Their children also may not be able to access education.
In the submissions to the Tribunal that the first applicant provided on 20 February 2025, she claimed:
a.should she return to China she would find it extremely difficult to find the courage or reason to continue living and the combined suffering of mental and physical health issues makes her feel like it would be better to end everything
b.going to prison is inevitable, but whether or not there is an arrest warrant, returning to China with her financial and health issues ‘feels like a death sentence’
c.when she left China she was subject to a limited departure order and had to travel to the international airport by train for over 30 hours rather than take a short 2 to 3 hour domestic flight
d.she has missed several deliveries while in Australia to the address of the house she sold in October 2020 and she knows they are from the court and it was either related to foreclosure or similar enforcement orders or other debt related lawsuits.
I accept that the applicant may face mental and physical health issues if she were to be removed from Australia and returned to China. I am also prepared to accept, notwithstanding the lateness of the claim, that the applicant was restricted from domestic travel when she departed in December 2022. However, for the reasons given below, I do not accept that going to prison is inevitable. I also do not accept that the applicant ‘knows’ the missed deliveries to her former address relate to court proceedings. The two court proceedings were commenced in October 2021 and June 2022, and, on the applicant’s evidence, the address where the deliveries were attempted to be delivered at was sold in October 2020. Given the timing of the commencement of the proceeding, I find that any correspondence from the court would not have been sent to that old address.
Do the applicants satisfy the refugee criterion for protection?
For the following reasons, I am not satisfied that that there is a real chance of serious harm if the applicants were returned to China in the reasonably foreseeable future.
Fear of harm due to debts
I have accepted that the first applicant owes significant amounts of money to family, friends, online lenders, banks and an insurer. I have also accepted that she has been subject to court proceedings due to her debts, has had her bank accounts and online payment platforms frozen and has a low credit rating. However, for the following reasons I do not accept, based on the evidence before the Tribunal, that there is a real chance of the applicants suffering serious harm because of those debts, legal proceedings and low social credit score.
While I accept the first applicant and her family have been subject to some harassment by moneylenders, she no longer owes any debts to loan sharks and therefore there is no real chance of her facing any harm in respect of those debts. In relation to the first applicant’s and her husband’s other debts to banks and online lenders, I accept she has been pursued by those lenders via phone and text to elicit payment. However, the first applicant has not made any claims to have been physically harmed or threatened to be harmed by those lenders other than saying in her protection visa application that she will have her ‘personal safety threatened’ because of her debts. The first applicant’s husband also gave evidence that he has never been threatened by his creditors. I do not consider text and phone harassment meets the non-exhaustive definition of serious harm in s 5J(5) of the Act and do not accept the first applicant has ever had nor that there is a real chance in the future that she will have her ‘personal safety threatened’ due to her debts. I therefore find that there is no real chance of the applicants suffering serious harm by reason of these debts.
In relation to the first applicant’s debts to her husband’s friends and the insurance company, I note that they have sought to resolve those debts by way of legal processes and the first applicant has not claimed they will seek to harass, threaten or harm her on return. I do not consider being subject to those legal processes amounts to serious harm for the purposes of the non-exhaustive definition in s 5J(5) of the Act. While undoubtedly those legal proceedings have been stressful, I do not consider them to be so oppressive that one cannot be expected to tolerate it.[15]
[15] MIMA v S152/2003 (2004) 222 CLR 1
I am also not satisfied the act of a Chinese court freezing the first applicant and her husband’s bank accounts and online payment platforms meets the non-exhaustive definition of serious harm in s5J(5) of the Act. The first applicant told the Tribunal she is in irregular contact with her parents and [siblings], who appear to be in a position to offer her support such as accommodation at least initially on return. The applicants may also be able to use a relative’s bank card or pay for their expenses with cash. The second applicant who is now [Age] years old may also be able to set up her own bank account and online payment platform accounts. I am not satisfied the applicants’ particular circumstances, in which the first applicant and her husband is denied access to bank accounts and other online payment platforms in China but would otherwise not be denied access to accommodation or other basic services, amounts to serious harm.
I accept, based on the evidence given by the first applicant and the country information, that the applicants have been restricted from domestic travel due to their poor social credit score. However, I do not consider restrictions on domestic travel meets the non-exhaustive definition of serious harm in s 5J(5) of the Act. The examples in s 5J(5) of the Act involve physical harm or threats to subsistence. While serious harm may also take other forms, such as mental harm, I do not consider the inability to travel domestically is so oppressive that one cannot be expected to tolerate it.[16] I also do not consider an inability to access private education meets the non-exhaustive definition of serious harm in s 5J(5) of the Act. While access to education is a basic service, the denial of access to ‘private’ education where public education is otherwise available, would not threaten the second or third applicant’s capacity to subsist. For the reasons given above, as well as DFAT’s assessment in relation to debtors who are subject to a poor social credit score, I do not consider there to be real chance the applicants will face official or societal discrimination which would reach the threshold of serious harm.
Fear of being arrested/detained for non-compliance with court orders
[16] Ibid
For the following reasons, and based on the country information, I do not consider there is a real chance that the first applicant will be detained or imprisoned on return to China.
First, while there is evidence that the first applicant was requested to provide the Xi’an [District] People’s Court with a property status report in May 2022 and she gave oral evidence that she failed to submit any report to the People’s Court, there is no evidence before the Tribunal to suggest that failure resulted in any fine or a warrant for her arrest. Instead, the first applicant and her husband gave oral evidence that their bank accounts were subsequently frozen. There are also documents before the Tribunal evidencing that certain WeChat and Tenpay accounts were frozen due to a court order in around December 2023. That suggests that the People’s Court has not, and, will not, make an order to detain the first applicant but instead obtained information about the first applicant’s financial circumstances and issued an order to freeze her bank accounts and online payment platforms. I am therefore not satisfied that there is a real chance that she will be detained under article 252 of the Civil Procedure Law (2023).
Second, I accept that the applicant no longer has any assets and would have difficulty making any repayments in relation to any outstanding judgment debts on return to China. I am therefore satisfied she does not have the ability to perform the obligations under any judgments against her and her failure to do so to date has not been because she has ‘refused’ to pay. There is also no evidence before the Tribunal that they are serious circumstances involved in her failure to pay. I am therefore not satisfied that there is a real chance that she will be detained or imprisoned under article 114(6) of the Civil Procedure Law (2023) and/or article 313 of the Criminal Law of the People's Republic of China (2021).
I am therefore not satisfied there is real chance the first applicant will be detained or imprisoned, in the reasonably foreseeable future, due to her failure to comply with court orders.
General poor financial situation
48. I accept the first applicant is concerned about being able to financially support herself and the second and third applicants on return to China, noting the significant debts she and her husband have. I also accept it may be difficult, although find it will not be impossible, for the applicants to survive on return to China based on DFAT’s assessment referred to above as well as the applicants’ particular circumstances. In particular:
a.the first applicant is [Age] years old (before retirement age)[17]
[17] While the current retirement age for women in China is 55 for more senior positions and 50 for ordinary workers, that is being increased to 58 for senior roles and 55 for ordinary roles. Further, individuals may work past their statutory retirement age, though generally they would not be considered an "employee" protected by statutory employment rules and instead would be hired under a labor service agreement governed by general civil law rather than employment law. Some cities have also implemented their own local policies regarding deferred retirement and how to treat workers who keep working past the retirement age. See: China: China extends statutory retirement age – What does this mean for employers?, Baker McKenzie InsightPlus, 9 October 2024
b.the first applicant gave evidence at hearing that she is well educated and has various skills and work experience in both China and Australia
c.I have found above that the applicants have family in China, who appear to be in a position to offer support such as accommodation at least initially on return
d.the second applicant is now of working age and has gained some experience in Australia, including by studying
e.the country information referred to above suggests that:
i. the world bank in 2023 described China as an upper middle-income country, its economy is growing, and unemployment rates remain reasonably low
ii.the labour market in China remained robust and could accommodate varying levels of skills and ambition
iii.China provides official welfare through its social security system, which includes pension, medical and unemployment benefits, as well as local subsistence payments to the poor.
49. In these circumstances, I find that the applicants will have access to accommodation as well as basic services, and, the first and second applicants will be able find employment in the reasonably foreseeable future in China. I am therefore satisfied there is no real chance the applicants would suffer significant economic hardship that threatens their capacity to subsist; and/or would be denied access to basic services, where the denial threatens her capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist (as per the non-exhaustive examples of serious harm mentioned at s 5J(5)(d)-(f) of the Act), for one or more of the reasons mentioned at s 5J(1)(a) of the Act, on return to China.
Mental and physical health of first applicant
As noted above, the definition of ‘well-founded fear of persecution’ requires, relevantly, that the person claiming protection must fear being persecuted for reasons of race, religion, nationality, political opinion or because he or she is a member of a particular social group. In addition, the reason or reasons must be the essential and significant reason for the persecution: ss 5J(1)(a) and (4)(a) of the Act.
51. I accept the first applicant has suffered from various health issues since being unable to meet her financial obligations, including mental health issues, and she is likely to experience further psychological distress on return to China which may constitute serious harm. However, such distress is not for one or more of the reasons mentioned at s 5J(1)(a) of the Act.
Access to education
I have accepted that the second and third applicant may be denied access to ‘private’ education due to the first applicant’s poor credit score and have concluded that would not constitute serious harm. In addition, there is no evidence that the third applicant, who is still of school age, would be denied access to public education in China. I find that there is no real chance she will be denied access to public education and suffer any form of harm as a result.
The second applicant is not of school age. While the first applicant gave evidence about the second applicant’s inability to sit a college entrance exam in China, access to tertiary education is not a basic service, which if denied, would threaten the second applicant’s capacity to subsist. I find that there is no real chance she will suffer serious harm as a result of any inability to undertake tertiary education in China.
Refugee Assessment
For the reasons outlined above, the applicants do not meet the criteria in s 36(2)(a) of the Act.
Do the applicants satisfy the complementary protection criterion for protection?
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa) of the Act.
Financial situation
I have considered whether there is a real risk the applicants will suffer significant harm arising from the freezing of the first applicant and her husband’s Chinese bank accounts and online payment platforms.
As mentioned above, ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A) and 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 and each of them require an actual subjective intention to bring about the suffering by acts or omissions.
I am not satisfied the act of a Chinese court freezing the first applicant and her husband’s bank account meets the exhaustive definition of significant harm in the Act. I have found the applicants will be able to access accommodation on return and would be able to use cash or relatives/the second applicant’s bank accounts. I am not satisfied the applicants’ particular circumstances, in which the first applicant and her husband are denied access to bank accounts and online payment platforms in China but would otherwise not be denied access to accommodation or other basic services, amounts to significant harm as defined in s 36(2A) and s 5(1) of the Act.
I have also considered whether the applicants’ general poor financial situation will mean that the applicants will be at risk of significant harm. I have accepted it would be difficult but found it would not be impossible for the applicants to survive on return to China. The applicants will also be able to access social security and health care as would any other citizen in China. In any case, there is nothing to suggest that any suffering faced by the applicants due their poor financial situation would be as a result of an actual subjective intention to bring about the suffering by acts or omissions.
While I have accepted the first applicant and her family have been subject to some harassment by moneylenders, she no longer owes any debts to loan sharks and therefore there is no real risk of her facing any harm in respect of those debts. In relation to the first applicant’s and her husband’s other debts to banks and online lenders, I have accepted she has been pursued by those lenders via phone and text to elicit payment. However, the first applicant has not made any claims to have been physically harmed or threatened to be harmed by those lenders other than saying in her protection visa application that she will have her ‘personal safety threatened’ because of her debts. As mentioned above, the first applicant’s husband also gave evidence that he has never been threatened by his creditors. I do not consider text and phone harassment meets the exhaustive definition of significant harm in s 36(2A) and s 5(1) of the Act and do not accept the first applicant has ever had nor that there is a real risk in the future that she will have her ‘personal safety threatened’ due to her debts. I therefore find that there is no real risk of the applicants suffering significant harm by reason of these debts.
In relation to the first applicant’s debts to her husband’s friends and the insurance company, as noted above, they have sought to resolve those debts by way of legal processes and the first applicant has not claimed they will seek to harass, threaten or harm her on return. I do not consider being subject to those legal processes amounts to significant harm for the purposes of the exhaustive definition in s 36(2A) and s 5(1) of the Act.
I find any harassment by the first applicant and her husband’s creditors on return to China does not amount to significant harm in accordance with the exhaustive definition in s 36(2A) of the Act.
First applicant’s health on return
I have accepted the first applicant has suffered from various health issues since being unable to meet her financial obligations, including mental health issues, and she is likely to experience further psychological distress on return to China. However, such distress does not amount to significant harm under the Act. That is because the applicant’s psychological distress on return to China and removal from Australia does not involve any intentional act to cause her harm and will not result in her being arbitrarily deprived of her life,[18] the death penalty being carried out on her, or her being subjected to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. I find the first applicant’s psychological distress on return to China does not therefore amount to significant harm in accordance with the exhaustive definition in s 36(2A) of the Act.
[18] See EZC18 v MHA [2019] FCA 2143 where the Federal Court upheld the Tribunal’s finding that the risk of suicide upon removal from Australia did not amount to a real risk of the appellant being arbitrarily deprived of his life
Claim the second and third applicant will be denied access to education
Any inability of the second and third applicant to access private and/or tertiary education in China, does not constitute significant harm in accordance with the exhaustive definition in s 36(2A) of the Act. That is because it does not involve any deprivation of life, torture, cruel or inhuman treatment or punishment or to degrading treatment or punishment. While the applicants may consider it cruel and humiliating to be deprived of these educational opportunities, I do not consider it would involve pain and suffering or extreme humiliation as required by s 5(1) of the Act. Nor would it be a result of an actual subjective intention to bring about the denial of education by acts or omissions.
Complementary protection assessment
I find there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicants will suffer significant harm. I find the applicants do not meet the complementary protection criterion.
For the above reasons, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Conclusion
For the reasons given above I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions not to grant the applicants protection visas.
Date of Hearings: 19 December 2024 and 10 February 2025
Representative of the applicants: N/A
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.
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36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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