2101380 (Refugee)

This matter concerned an application for review of a decision by the Department of Home Affairs to refuse a protection visa. The applicant, who had most recently departed Japan in July 2016, claimed to fear persecution by the Yakuza, a Japanese criminal gang, due to her family's demand for compensation following a traffic accident involving a Yakuza member. The applicant alleged that her father was assaulted and threatened by the Yakuza, and that the police were uncooperative, leading her family to go into hiding. The Administrative Appeals Tribunal (AAT) reviewed the delegate's decision.

The primary legal issue before the Tribunal was whether the applicant was a person in respect of whom Australia had protection obligations, either under the 'refugee' criterion or the 'complementary protection' criterion. This required the Tribunal to determine if the applicant had a well-founded fear of persecution for a Convention reason, or if there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia, she would suffer significant harm.

The Tribunal reasoned that it was the applicant's responsibility to establish her claims by providing sufficient particulars and evidence. The applicant had declined an opportunity for a hearing and had not provided any additional material to the Tribunal beyond her initial written claims. Consequently, the Tribunal had not had the opportunity to explore or test these claims with her. The Tribunal noted that the mere assertion of a fear does not establish its genuineness or well-foundedness, nor does it automatically establish a real risk of significant harm. The Tribunal was not required to make the applicant's case for her.

The Tribunal concluded that, based on the limited information before it and the applicant's failure to provide further evidence or participate in a hearing, it could not be satisfied that the applicant met the criteria for the grant of a protection visa. Accordingly, the Tribunal affirmed the delegate's decision.