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Tribunal: Member R Smidt

Australia has an obligation under the Migration Act 1958 to protect individuals who can satisfy one of two criteria.[1] The ‘refugee criterion’ broadly requires the applicant to have a ‘well-founded fear of persecution’[2] should they be returned to their country of origin and ‘complementary protection’ grounds require that there would be ‘a real risk of significant harm’ if the applicant were to be removed from Australia and sent to a receiving country – usually the country of origin.

The applicants are a family of four. The parents arrived in Australia separately on temporary visas, met and commenced a relationship that produced two children. After their arrival, the parents remained in Australia on a series of temporary and bridging visas or unlawfully. In June 2011 the applicants applied for protection visas. These applications were refused and the Tribunal affirmed that decision. An application for Ministerial intervention was unsuccessful.

The parents were granted further bridging visas, and due to a change in legislation were permitted to apply a second time for a protection visa under the complementary protection criterion which previously did not exist. The two children also applied for protection visas and were considered against both the refugee and complementary protection criteria.

The parents claimed the family would be at risk of harm if they were returned to China because of their Christian beliefs, and because they were members of the ‘Local Church’. At the hearing the applicants abandoned their claim related to having problems associated with China’s family planning regulations. The parents claimed that they had been refused Chinese passports and that their household registration in China had been cancelled. Without this neither they nor their children would have access to basic services.

The AAT reviewed the evidence, along with available country information and concluded that there was no credible evidence to support the applicants’ claims in respect of China’s family planning laws. The Tribunal also found that applicants had not practiced their religion for many years and country information indicated that household registration would be unlikely to be withheld or passports denied.

The AAT was not satisfied that any of the applicants were persons in respect of whom Australia has protection obligations and affirmed the decision of the Department of Home Affairs for all four applicants.

Read the full decision on AustLii.


[1] Section 36(2) of the Migration Act 1958

[2] Section 5H of the Migration Act 1958