1933723 (Refugee)

This matter concerned an application for a protection visa by a citizen of China. The applicant claimed to have become interested in Falun Gong while in Australia and feared persecution upon return to China due to his practice. The Department of Home Affairs had previously refused the visa. The applicant was invited to attend a hearing before the Tribunal to present oral evidence and arguments, but his legal representative advised that the applicant did not wish to attend and consented to the Tribunal making a decision based on the available material.

The primary legal issue before the Tribunal was whether the applicant was a person in respect of whom Australia had protection obligations, either as a refugee under section 36(2)(a) of the Migration Act 1958 or under the complementary protection criterion in section 36(2)(aa). This required determining if 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 were substantial grounds for believing that he would suffer significant harm as a necessary and foreseeable consequence of being removed to China.

The Tribunal affirmed the decision not to grant the visa. It found that the applicant was a citizen of China and that China was his receiving country. Crucially, the Tribunal noted that the applicant had declined the opportunity to provide oral evidence or present arguments at a hearing. Consequently, the Tribunal was left only with the applicant's written claims, which it considered to be lacking in significant detail and substance. The Tribunal was unable to test these claims and therefore could not be satisfied that the applicant’s Falun Gong practice in Australia had brought him to the attention of Chinese authorities in a way that would expose him to a real risk of persecution or significant harm upon return. The Tribunal concluded that the applicant did not satisfy the criteria for a protection visa.