1414679 (Refugee)

This matter concerned an application for protection visas by a husband and wife, who are citizens of Fiji. The applicants claimed they feared harm in Fiji due to their Indo-Fijian ethnicity, their perceived political opinions against the military government, and the general violence and harassment faced by the Indian community in Fiji. They also claimed the applicant wife would face additional harm as a female of Indo-Fijian ethnicity. The Tribunal was required to determine whether the applicants met the complementary protection criterion under s.36(2)(aa) of the Act.

The Tribunal considered the application in light of previous protection visa applications made by the applicants in 2008, which were refused. The current application was made in August 2013, prior to amendments to the *Migration Act 1958* (Cth) in May 2014. The Tribunal applied s.48A of the Act as it stood before the amendments, which prevented a further application for a protection visa if an earlier application had been refused, unless the further application was based on a different criterion. The Tribunal noted the Full Federal Court's decision in *SZGIZ v MIAC*, which held that s.48A did not prevent a non-citizen who had applied based on the refugee criterion from making a further application based on the complementary protection criterion. However, the Federal Court in *AMA15 v MIBD* held that if an applicant had already been assessed against the refugee criterion, neither the delegate nor the Tribunal had jurisdiction to consider a further application based on the complementary protection criterion against the refugee criterion.

The Tribunal found that it was not satisfied that the applicants were persons in respect of whom Australia had protection obligations under either s.36(2)(a) (refugee criterion) or s.36(2)(aa) (complementary protection criterion). Consequently, they could not satisfy the family membership criteria under s.36(2)(b) or (c). The Tribunal affirmed the decision not to grant the applicants protection visas. The Tribunal also noted that the applicants had requested a referral to the Minister for consideration under s.417 of the Act, and indicated that it would refer the matter to the Department for this purpose, having considered the applicants' circumstances and the relevant ministerial guidelines.