1912586 (Refugee)

The applicant, a female citizen of China, sought review of a decision affirming the refusal of her protection visa application. Her son was the second applicant. The applicants arrived in Australia in 2015 and 2016 respectively. The primary dispute concerned whether the applicant had a well-founded fear of persecution, or a real chance of suffering significant harm, if returned to China, based on claims of family violence and potential lack of state protection.

The court was required to determine whether the applicant had established a claim for protection under the Migration Act 1958 (Cth). Specifically, the court had to consider whether the applicant's fear of her ex-husband constituted persecution, whether she belonged to a particular social group, and whether the Chinese authorities would be unable or unwilling to protect her from this harm. The court also had to assess the credibility of the applicant's claims and the evidence presented.

The court affirmed the decision under review, finding that the applicant had not established a well-founded fear of persecution. While acknowledging the history of family violence, the court found that the applicant's ex-husband's actions, while serious, did not rise to the level of persecution as defined by the Migration Act. The court noted that the ex-husband's behaviour had not been consistent or persistent since the applicant's departure in 2010, and that there was no evidence he was actively seeking her out with the intent to cause serious harm upon her return. Furthermore, the court found that the applicant had not demonstrated that she belonged to a particular social group that would place her at risk of persecution. Despite affirming the decision, the court referred the case for Ministerial intervention under s 417 of the Act, considering the circumstances of the second applicant.