1915899 (Refugee)

This matter concerned an application for a protection visa by an individual from China who claimed to be a devout underground Christian. The applicant alleged a lack of religious freedom in China, persecution of underground religious groups, and that he and his family had been harassed by police due to his beliefs. He stated he travelled to Australia for safety and feared arrest and mistreatment if returned to China, asserting he could not safely relocate within China. The Administrative Appeals Tribunal (AAT) reviewed the decision not to grant the visa.

The central legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36 of the Migration Act 1958 (Cth) and Schedule 2 of the Migration Regulations 1994 (Cth). This required determining if the applicant satisfied either the 'refugee' criterion or 'complementary protection' grounds, or was a family member of such a person. A significant procedural issue also arose regarding the Tribunal's ability to make a decision in the absence of the applicant, who failed to attend scheduled interviews and hearings.

The Tribunal considered the applicant's claims in light of the relevant guidelines and country information. Crucially, the Tribunal had invited the applicant to attend a hearing and provide oral evidence, advising that a decision might be made without further notice if he failed to attend. Despite multiple attempts to contact the applicant, including during a COVID-19 lockdown for a video or telephone hearing, no response was received. The Tribunal also noted the applicant's failure to attend a prior Department interview. Applying section 426A of the Act, the Tribunal concluded it was appropriate to make a decision on the review without further attempts to enable the applicant to appear. Based on the material before it, and the applicant's failure to satisfy the criteria for a protection visa, the Tribunal affirmed the original decision.