1805543 (Refugee)

The Tribunal considered the protection visa application of an applicant who arrived in Australia in 1998 and subsequently lodged an application for a protection visa. The applicant's initial application was refused in 1998, and a subsequent review by the Refugee Review Tribunal in 1999 also affirmed the refusal. The applicant remained in Australia unlawfully for 14 years before being located in 2013 and detained. The current decision concerns the applicant's claims for protection, specifically in relation to the complementary protection criterion under section 36(2)(aa) of the Migration Act 1958 (Cth), following a remittal from the Federal Court.

The primary legal issue before the Tribunal was whether the applicant satisfied the complementary protection criterion, given that his earlier application based on the refugee criterion had been refused. The Tribunal was required to determine if the applicant had established a claim for complementary protection, taking into account the limitations imposed by section 48A of the Migration Act 1958 (Cth), which bars further protection visa applications in certain circumstances where a previous application has been refused. The Tribunal also had to consider the relevance of country information and ministerial directions.

The Tribunal reasoned that, in light of Federal Court authorities such as *SZGIZ v MIAC* and *AMA15 v MIBP*, its consideration was confined to the complementary protection criterion. The applicant's claims revolved around fears of harm from villagers and authorities in China due to issues concerning farmland, social benefits, and a cancelled household registration. However, the Tribunal found that the applicant's evidence presented at the hearings differed from his initial application and that he lacked a clear understanding of the proceedings or the basis for his claims. Crucially, the Tribunal noted the applicant had provided no supporting documents beyond his passport. The Tribunal also considered the validity of a section 438 certificate, referencing case law that limited its use in judicial proceedings, and concluded it was not valid for the purposes of non-disclosure in this context.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa. It found that the applicant did not satisfy the criterion in section 36(2) of the Migration Act 1958 (Cth), including any basis related to being a family member of someone who met the refugee or complementary protection criteria.