1834592 (Refugee)

The applicants, citizens of China, sought review of a decision by the Minister for Home Affairs to refuse them protection visas. Their temporary visa had been cancelled, and they subsequently applied for protection visas, which were refused on the basis that their claims of religious persecution were unconvincing and did not meet the criteria for protection under the Migration Act 1958 (Cth). The applicants claimed to be members of an unregistered Catholic church and alleged that the mother had been briefly detained.

The court was required to determine whether the applicants had a well-founded fear of persecution for reasons of religion, as defined by section 5J of the Migration Act, and whether Australia had protection obligations towards them under section 36(2)(a) or complementary protection obligations under section 36(2)(aa). This involved assessing the credibility of the applicants' claims, considering whether any claimed persecution would involve serious harm and be an essential and significant reason for that harm, and whether effective protection measures were available in China. The court also had to consider the principle that new claims and evidence should generally be presented to the primary decision-maker, and the potential for drawing adverse inferences from the late introduction of claims or evidence without reasonable explanation.

The court found that while the applicants' religious beliefs and practices might lead to low levels of societal discrimination in China, this did not reach the threshold of harm required to engage Australia's protection obligations. The court applied the principles outlined in section 5J of the Migration Act regarding well-founded fear of persecution, noting that the fear must be based on specific reasons such as religion and involve serious harm. The court also considered the applicants' migration history and the fact that they had left young children in their home country, and that a late claim regarding fraudulent agents for their initial visa was made without a reasonable explanation, potentially leading to an adverse inference.

The Tribunal affirmed the decision not to grant the applicants protection visas.