2116956 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by two applicants, identified as the applicant and the second applicant. The dispute concerned whether the applicants met the criteria for the grant of a protection visa, specifically relating to claims of persecution based on their ethnic Korean background and their online posts concerning North Korean nuclear tests. The Tribunal was required to assess the evidence presented by the applicants against the relevant provisions of the Migration Act 1958 and associated guidelines.

The legal issues before the Tribunal included whether the applicants were refugees within the meaning of section 5H of the Act, which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal also had to consider the complementary protection criterion under section 36(2)(aa), which requires substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia, there is a real risk of suffering significant harm. This involved assessing whether the harm feared constituted torture, cruel, inhuman, or degrading treatment or punishment, and whether effective protection measures were available in their country of origin.

The Tribunal's reasoning focused on the sufficiency of the evidence provided by the applicants to substantiate their claims. While the applicants asserted fears of prosecution, discrimination, harassment, and attack due to their ethnicity and online activities, the Tribunal found that the evidence did not establish a well-founded fear of persecution or a real risk of significant harm. The Tribunal noted that the applicant did not appear before it, and the evidence regarding past incidents, such as the argument with soldiers and the bankruptcy of a factory, lacked corroboration and did not demonstrate a direct link to persecution for a Convention reason. Furthermore, the Tribunal considered that the applicants had not provided sufficient evidence to support their claims about the consequences of their online posts, particularly in light of the advice from their migration agent that their reasons for protection were not sufficient. The Tribunal also considered the possibility of internal relocation within China and the availability of state protection.

Ultimately, the Tribunal affirmed the decision not to grant the applicants protection visas. The applicants were refused a Class XA - Protection visa (subclass 866) under section 65 of the Act.