2301960 (Refugee)

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse the applicant, a citizen of China, a protection visa. The applicant arrived in Australia in April 2018 on a student visa and applied for a protection visa in January 2022, claiming he left China because he is gay and feared persecution due to homosexuality not being accepted in China. He stated he had not experienced harm in China but believed Chinese authorities would not protect him if he returned.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36 of the *Migration Act 1958* (Cth), specifically whether he was a refugee owing to a well-founded fear of persecution, or alternatively, whether Australia had protection obligations under the complementary protection criterion due to a real risk of significant harm upon removal. The Tribunal was required to consider the applicant's claims in light of the legislative definitions of "refugee" and "well-founded fear of persecution," including the requirement for a real chance of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether effective protection measures were available in China.

The Tribunal noted that the applicant failed to provide requested information from the Department to substantiate his claims, including details about his experiences as a gay person in China, his involvement with the LGBTI community, and the reasons for the significant delay in lodging his protection visa application. Furthermore, the applicant elected not to attend the hearing and provided no further evidence, consenting to a decision on the papers. The Tribunal found that the applicant had not provided any evidence to establish a well-founded fear of persecution or a real risk of significant harm. Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.