2004847 (Refugee)

The applicant, a national of China, sought review of a decision not to grant her a Protection visa. The dispute centred on her claims of fear of harm if returned to South Korea, despite not being a citizen of that country. The applicant's representative advised the Tribunal that the applicant did not wish to participate in the hearing, consenting to a decision being made based on the available evidence.

The primary 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 clause 866.221 of the Migration Regulations 1994 (Cth). Specifically, the Tribunal had to determine if Australia owed the applicant protection obligations under the Refugees Convention, which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and being outside her country of nationality. The Tribunal also considered the grounds for complementary protection, which involve a real risk of significant harm.

The Tribunal reasoned that it is the applicant's responsibility to specify all particulars of their claim and provide sufficient evidence to establish it, and the Tribunal is not obliged to make or assist in making the applicant's case. Based on the evidence, including a Chinese passport and national ID card, the Tribunal found the applicant to be a national of China and not a citizen of South Korea. Crucially, the applicant had made no claims for protection against her country of nationality, China, nor had she provided any information suggesting past or feared future harm in China.

Consequently, the Tribunal concluded that the applicant did not satisfy the criterion in clause 866.221 for a Protection visa, as her claims for protection related solely to harm feared if returned to South Korea and not to her country of nationality. The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.