1510817 (Refugee)

This matter concerned an application for a protection visa by a citizen of China. The applicant claimed to have practiced Falun Gong in China and alleged that he had been detained and tortured on account of his religious beliefs. He further claimed that his parents had paid significant bribes to facilitate his departure from China and that he feared persecution if returned. The applicant’s visa had ceased in March 2018, and he had lodged his protection visa application in August 2014.

The primary legal issue before the Tribunal was whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically his practice of Falun Gong, such that Australia had protection obligations towards him under the Migration Act 1958 (Cth). This required the Tribunal to assess the applicant's credibility and determine if the harm he claimed to fear was real and significant, and if it was for a Convention reason. The Tribunal also considered the applicant's nationality and whether he was excluded from protection under subsection 36(3) of the Act.

The Tribunal applied the principles that the onus rests on the applicant to specify all particulars of their claim and provide sufficient evidence to establish it, and that the Tribunal is not obliged to assist in establishing the claim. The Tribunal noted that a claim of fear does not automatically establish its genuineness or that it is well-founded. In assessing credibility, the Tribunal referred to the principles outlined in *Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan* (1996) 40 ALD 445, emphasizing the need for a reasonable approach. The Tribunal found the applicant to be a national of China and not excluded from protection.

The Tribunal affirmed the delegate's decision to refuse the application for a protection visa. This outcome was based on the delegate's dissatisfaction that the applicant had a well-founded fear of harm as a result of his Falun Gong practice, particularly noting the applicant's failure to attend a scheduled interview to substantiate his claims.