1504204 (Refugee)

This matter concerned an application for review of a delegate's decision to refuse the applicant, a citizen of China, a Protection visa. The applicant claimed to fear persecution in China based on his past membership of Falun Gong, his Christian faith, and his identity as a wealthy Chinese businessman. He also asserted that he would not receive adequate medical care in China for his various health conditions. The delegate was not satisfied that the applicant would face persecution as a Falun Gong practitioner or a Christian, nor did she consider "wealthy Chinese businessmen" to be a cognisable group. She also found no adverse interest from Chinese authorities due to a failed business and was not satisfied his ill health would engage Australia's protection obligations.

The Tribunal was required to determine whether Australia had protection obligations towards the applicant under the Complementary Protection provisions of the Migration Act 1958, specifically s.36(2)(aa). This required the Tribunal to be satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia, there was a real risk that he would suffer "significant harm." Significant harm is defined to include arbitrary deprivation of life, the carrying out of the death penalty, or subjection to cruel, inhuman, or degrading treatment or punishment. The Tribunal noted that due to previous assessments under s.36(2)(a), the applicant could only have his claims assessed under the Complementary Protection provisions.

The Tribunal considered the applicant's evidence, including his oral testimony and documentary material regarding his medical conditions. It acknowledged that the applicant suffered from significant medical concerns that might affect his memory and ability to give evidence. The Tribunal also reviewed the delegate's decision and the applicant's interview with the delegate. After considering all the material, the Tribunal affirmed the delegate's decision not to grant the applicant a Protection visa, finding that the applicant did not satisfy the criteria under s.36(2) of the Act.