1709106 (Refugee)

This matter concerned an application for a protection visa by two applicants from China. The applicants alleged a dispute with local government in 2011, which they claimed led to unfair treatment, a lawsuit, and an inability to repay a bank loan, describing local government agents as "gangs." The applicants remained in China until early 2014, overstayed their visas, and did not lodge their protection visa application until August of the following year. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicants were entitled to protection in Australia as refugees or on complementary protection grounds.

The Tribunal considered whether the applicants had satisfied the statutory elements for a protection visa. It noted that the onus is on the applicant to establish their claim and provide sufficient evidence, and that a decision-maker is not required to make the case for the applicant. The Tribunal highlighted the applicants' delay in applying for the visa and their failure to respond to an invitation for an interview with the Minister's delegate in April 2017, which would have provided an opportunity to elaborate on their claims for the first time. The Tribunal also sought more up-to-date information regarding potentially affected family members in China.

The Tribunal reasoned that the mere assertion of a fear of persecution or significant harm does not establish its genuineness or well-foundedness. The applicants' claims regarding a 2011 dispute were not sufficiently substantiated to demonstrate a nexus with Australia's protection obligations under section 5J(1)(a) of the Migration Act 1958. Furthermore, the applicants did not satisfy the criteria for complementary protection under section 36(2)(aa) of the Act, nor did they establish that they were members of the same family unit as a person who met the criteria for a protection visa.

Consequently, the Tribunal affirmed the decision not to grant the applicants a protection visa.