1717835 (Refugee)

This matter concerned an application for a protection visa by an applicant who identified Taiwan (Republic of China) as their country of reference. The applicant did not attend the hearing scheduled by the Tribunal, nor did they contact the Tribunal to explain their absence. The Tribunal was satisfied that the applicant had been properly invited to the hearing and had received an SMS reminder. Consequently, the Tribunal proceeded to make its decision without the applicant's appearance, pursuant to section 426A of the Migration Act 1958 (Cth).

The primary legal issues before the court were whether the applicant met the criteria for a protection visa under section 36(2) of the Migration Act 1958 (Cth). This involved determining if the applicant was a refugee under section 36(2)(a) due to a well-founded fear of persecution, or if they qualified for complementary protection under section 36(2)(aa) due to a real risk of significant harm upon removal to Taiwan. The court also considered the applicant's responsibility to provide sufficient evidence to establish their claims, and the Tribunal's role in assessing these claims.

The court reasoned that the applicant bore the onus of satisfying the Tribunal of the statutory elements for a protection visa. In the absence of the applicant attending the hearing, the Tribunal was unable to test and examine the applicant's claims. Citing the Federal Court decision in *BZADA v MIC and RRT* [2013] FCA 1062, the court held that the Tribunal could not reach the requisite level of satisfaction to grant the visa without the applicant's presence and the opportunity to examine their evidence. The Tribunal noted that the applicant had not provided any information to establish a well-founded fear of persecution or a real risk of significant harm.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa. The court found that the applicant did not satisfy the criteria under section 36(2) of the Migration Act 1958 (Cth), as there was no evidence presented to demonstrate they met the requirements for either refugee status or complementary protection.