1715333 (Refugee)

The Administrative Appeals Tribunal (AAT) reviewed a decision by a delegate of the Minister for Immigration and Border Protection to refuse a Chinese national a Permanent Protection (Class XA) (Subclass 866) visa. The applicant sought review of this refusal, having originally applied for the visa in May 2016. The delegate had refused the visa in July 2017, finding the applicant did not meet the criteria for a protection visa, specifically the refugee or complementary protection grounds.

The primary legal issues before the Tribunal were whether the applicant met the refugee criterion or the complementary protection criterion, as defined by section 36 of the *Migration Act 1958* (Cth) and Schedule 2 of the *Migration Regulations 1994* (Cth). The Tribunal was required to assess the applicant's claims, which concerned disputes with local authorities over the demolition of his home, subsequent detention, threats, and fear for his safety upon return to China.

The Tribunal noted that the applicant had been invited to a hearing to present his case but, by completing a "Response to hearing invitation" form, had consented to the Tribunal making a decision on the papers without a hearing. The Tribunal exercised its power under sections 425(2)(b) and 425(3) of the *Migration Act 1958* to proceed without a hearing, meaning the applicant had no further entitlement to one. Crucially, the Tribunal found that because the applicant had not participated in a hearing where his credibility could be tested, and had consented to a decision on the papers, it was not in a position to assess the veracity of his claims. Consequently, the Tribunal was not satisfied that the applicant met either the refugee or complementary protection criteria.

The Tribunal affirmed the delegate's decision not to grant the applicant a Permanent Protection (Class XA) (Subclass 866) visa.