2015336 (Refugee)

This matter concerned an application for merits review of a decision by the Minister's delegate to refuse to grant the applicant, a citizen of China, a Protection XA subclass 866 Visa. The applicant had arrived in Australia in May 2016 and remained onshore since August 2017. The applicant's protection visa application was lodged in November 2017, and subsequently refused by the delegate on 21 September 2020. The applicant then sought merits review of this decision before the Tribunal.

The core legal issues before the Tribunal were whether the applicant met the definition of a refugee under section 5H(1) of the Migration Act 1958 (Cth), and whether she would suffer serious harm as defined in section 5J(5) of the Act if returned to China, thereby establishing Australia's protection obligations under section 36(2)(a) or 36(2)(aa) of the Act. These questions hinged on the Tribunal's assessment of the applicant's claims regarding demolition of her apartment building in China, alleged lack of compensation, threats and assault by a property developer, and subsequent fear of arrest by Chinese authorities.

The Tribunal's reasoning focused on the applicant's credibility, finding significant inconsistencies and a lack of detail in her evidence regarding crucial aspects of her claims. Specifically, the Tribunal noted discrepancies concerning property ownership, the existence and timing of demolition notices, the circumstances of her alleged detention and forced signing of an agreement, her involvement in complaints to authorities, and the details of the demolition itself and any compensation received. The Tribunal applied the principle that an applicant must satisfy the Tribunal that all statutory elements are made out, and that while the onus of proof is not strictly applied in administrative inquiries, the applicant must supply sufficient detail to enable the Tribunal to establish the relevant facts. The Tribunal found that the applicant's claims lacked the necessary credibility and detail to establish a well-founded fear of persecution or a real risk of significant harm.

Consequently, the Tribunal affirmed the delegate's decision to refuse the protection visa. The Tribunal was not satisfied that the applicant met the definition of a refugee or that she would suffer serious harm if returned to China, and therefore concluded that Australia did not have protection obligations towards her.