2014588 (Refugee)

This matter concerned an application for a protection visa by a citizen of China. The applicant claimed to have opposed a local government reconstruction plan, which led to him being assaulted and threatened by police. The Administrative Appeals Tribunal (AAT) was required to review the delegate's decision to refuse the visa.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for a protection visa, specifically under section 36 of the Migration Act 1958 (Cth) and Schedule 2 of the Migration Regulations 1994 (Cth). This involved assessing whether the applicant had established a well-founded fear of persecution or harm for a Convention reason or on complementary protection grounds, and whether Australia had protection obligations towards him. A further issue was whether the Tribunal could make a decision in the applicant's absence, given his failure to attend a scheduled hearing.

The Tribunal affirmed the delegate's decision to refuse the visa. It noted that while it accepted the applicant was a Chinese citizen, the applicant had failed to provide sufficient detail to substantiate his claims of involuntary land acquisition, trouble with Chinese authorities, or harm. The Tribunal reiterated that the onus is on the applicant to provide the necessary facts and evidence to satisfy the statutory elements for a protection visa, and that a decision-maker is not required to construct the applicant's case. The Tribunal had invited the applicant to attend a hearing and present oral evidence, but he failed to attend or respond to communications, leading the Tribunal to proceed with the decision under section 426A of the Act without further action to enable his appearance.