1419021 (Refugee)

This matter concerned an application for a protection visa by a primary applicant and her child. The primary applicant, born in China, claimed persecution based on her family's Christian religious beliefs and violations of family planning policies. She alleged that her mother was forced to hide until her birth, her father was detained and sterilised, and her mother faced arrest and financial penalties. The applicants had entered Australia on student and student guardian visas respectively, with the primary applicant remaining in Australia as an unlawful non-citizen after her visa ceased.

The legal issues before the court were whether the applicants met the criteria for a protection visa, specifically considering the refugee criterion under s.36(2)(a) and the complementary protection criterion under s.36(2)(aa) of the Act. The court was required to determine if the primary applicant had provided sufficient particulars and evidence to establish her claims of persecution and a real risk of significant harm if returned to China, and whether the Tribunal had correctly applied the relevant legal principles and policy guidelines.

The court affirmed that the onus rests entirely on the applicant to specify all particulars of their claim and provide sufficient evidence to establish it, as mandated by s.5AAA of the Act. The Tribunal is not obligated to identify or assist in establishing the applicant's claims, nor is it required to accept allegations uncritically. The court reiterated that a mere claim of fear of persecution or risk of significant harm does not satisfy the statutory requirements; the applicant must satisfy the Tribunal that all elements of the claim are made out. The Tribunal had considered the applicant's written statement, relevant country information, and departmental guidelines, including Ministerial Direction No. 56.