1921338 (Refugee)

This matter concerned an application for review of a decision not to grant a protection visa to a Chinese national. The applicant claimed to fear persecution in China due to his membership and activities in an unregistered Christian church. The applicant had arrived in Australia in 2009 as a student and had since established a de facto relationship, had two Australian-born children, and had parents and a sister residing in Australia. The applicant was in immigration detention at the time of the review.

The primary legal issue before the court was whether the applicant met the criteria for a protection visa, specifically whether he had a well-founded fear of persecution for reasons of religion in China, or alternatively, whether he faced a real risk of significant harm if returned to China under the complementary protection provisions. The court was required to assess the applicant's credibility, considering the consistency and detail of his evidence, as well as any delays in his application and his conduct in Australia.

The court affirmed the decision not to grant the protection visa. It found that the applicant's evidence lacked sufficient detail and was inconsistent, leading to doubts about his credibility. The court noted the significant delay in the applicant joining a church in Australia after his arrival in 2009, and his periods as an unlawful non-citizen and in immigration detention. These factors, combined with the lack of a well-founded fear of persecution, meant that the applicant did not satisfy the refugee criterion under s.36(2)(a) of the Migration Act 1958. Furthermore, the court found that the applicant did not satisfy the complementary protection criterion under s.36(2)(aa), as there were no substantial grounds to believe he would suffer significant harm upon removal from Australia.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.