1715623 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa. The applicant, a national of China, claimed a fear of persecution due to her Christian beliefs. The applicant declined to attend an interview with the Tribunal and requested the matter be determined on the papers. The Tribunal also noted that the applicant's second child had obtained Australian citizenship after the delegate's decision.

The primary legal issue before the Tribunal was whether the applicant had a well-founded fear of persecution in China for one of the five prescribed reasons under section 5J of the Migration Act 1958, or if there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal, she would suffer significant harm, as defined by section 36(2)(aa) of the Act. The Tribunal was required to assess the applicant's claims against the relevant country information and the statutory criteria for protection visas.

The Tribunal reasoned that the onus was on the applicant to establish all statutory elements of her claim, and a decision-maker was not obliged to construct the case for her. The applicant's submissions indicated a desire to access Ministerial Intervention rather than directly challenging the delegate's decision on its merits. The Tribunal noted that the applicant appeared to have commenced practicing her Christian faith only after arriving in Australia and had not experienced past harm in China. Considering the provided country information, which indicated that religious practice in China is possible within state-sanctioned boundaries but restrictions can vary, the Tribunal found insufficient detail to conclude that the applicant would be subject to serious or significant harm upon return.

The Tribunal affirmed the decision not to grant the applicant a protection visa. The Tribunal did, however, acknowledge the applicant's lengthy period of residence in Australia since 2006, her role as the primary carer of two Australian-born children who are now citizens, and the potential hardship that her return to China might cause to an Australian citizen or their family.