1620667 (Refugee)

The applicant, a male born in China, sought review of a decision not to grant him a protection visa. The applicant claimed to have become a Christian in Australia and alleged that his mother had been arrested and tortured in China for her involvement in an underground church and for receiving Christian materials from overseas, which he had sent. His parents were subsequently arrested, and his mother confessed that he had provided the materials. The applicant expressed fear of returning to China due to these events.

The primary legal issues before the court were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, which requires a well-founded fear of persecution, or under section 36(2)(aa), which concerns complementary protection due to a real risk of significant harm as a necessary and foreseeable consequence of removal. The court also considered the definition of "significant harm" and the circumstances under which a person would not be taken to face such a risk.

The court reasoned that the applicant had not established a well-founded fear of persecution under section 36(2)(a). While acknowledging the applicant's claims regarding his mother's experiences and his own fear, the court found that the applicant had not demonstrated that he himself had experienced persecution or had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Furthermore, the court determined that the applicant did not satisfy the criteria for complementary protection under section 36(2)(aa), as he had not shown a real risk of suffering significant harm as a necessary and foreseeable consequence of removal. The court noted that the applicant had not claimed to have experienced harm in China prior to leaving, and his involvement in sending religious materials online was not considered sufficient to establish a direct risk of persecution or significant harm upon return, particularly in light of the delay in his application and his ability to speak English and Mandarin.

The Tribunal affirmed the decision not to grant the applicant a protection visa.