1912790 (Refugee)

The applicant, a citizen of China, sought a protection visa based on claims of persecution by Chinese authorities due to his and his wife's breach of the "one child" policy with the birth of their second son. He alleged mistreatment, detention, and the imposition of a substantial fine. The applicant arrived in Australia on a tourist visa in 2012 and delayed lodging his protection visa application for four years, stating he was only informed of this option in 2016. The decision reviewed was made by Senior Member Louise Nicholls of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically whether he qualified as a refugee under section 36(2)(a) of the Migration Act 1958 (Cth) or was entitled to complementary protection under section 36(2)(aa). This required an assessment of whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or if there was a real risk of significant harm if returned to China.

The Tribunal affirmed the decision not to grant the protection visa. While acknowledging the applicant's claims regarding the "one child" policy, mistreatment, and fines, the Tribunal found that the applicant's own evidence indicated that the incidents of harassment ceased around 2008, his children were registered, and the fines had been paid. The applicant also stated that his family had not received any threats or harm while he was in Australia. Crucially, the applicant admitted he could pay any outstanding money owed to the government but preferred life in Australia. The Tribunal concluded that the applicant had not established a well-founded fear of persecution or a real risk of significant harm upon return to China, and therefore did not meet the criteria for a protection visa.