1503968 (Refugee)

This matter concerned a review of decisions to refuse protection visas to two applicants from China. The applicants arrived in Australia in 2007 and 2009 respectively, leaving their child, [Child 1], in China with the first applicant's mother. Both applicants had previously applied for protection visas, which were refused by the Minister's delegate and affirmed by the Refugee Review Tribunal (RRT). Subsequent judicial review applications to the Federal Magistrates Court and the Full Federal Court were also unsuccessful. A second protection visa application was lodged by the applicants after the birth of their child, [Child 2], in Australia.

The primary legal issue before the Tribunal was whether the applicants were persons in respect of whom Australia had protection obligations under section 36(2)(aa) of the Act, meaning there were substantial grounds for believing that if removed from Australia to China, they would be at real risk of suffering significant harm. The applicants also raised concerns about separation from their child, [Child 2], as a consequence of their removal. The Tribunal was required to consider the applicants' claims in light of relevant Ministerial Directions, including complementary protection guidelines and country information assessments.

The Tribunal reasoned that the applicants had not established substantial grounds for believing they would suffer significant harm upon return to China, either as failed asylum seekers, returnees, or due to their unlawful departure. The Tribunal also found that harm arising from the act of removal from Australia, including separation from a child, did not prima facie meet the definition of significant harm under section 36(2A) of the Act, as the applicants had not provided sufficient evidence to establish such a claim. Consequently, the Tribunal was not satisfied that the applicants met the criteria for protection visas under section 36(2)(aa), nor could they satisfy the family membership criteria under sections 36(2)(b) or (c) due to statutory bars.

Despite affirming the decision to refuse the protection visas, the Tribunal referred the case to the Department for consideration under the Minister's discretionary power pursuant to section 417 of the Act. This referral was based on two particular circumstances: the potential impact of the applicants' removal on the wellbeing of their Australian permanent resident child, [Child 2], and the apparent validity of the applicants' second protection visa application at the time it was lodged, which might have allowed them to meet the family membership criterion when their child was granted a protection visa.