1415435 (Refugee)

The applicant, a citizen and national of China, sought a protection visa. The dispute concerned whether the applicant met the complementary protection criterion under section 36(2)(aa) of the Migration Act 1958 (Cth), following a previous refusal of a protection visa. The matter came before the Tribunal, presided over by Senior Member Josephine Kelly.

The primary legal issue before the Tribunal was whether the applicant satisfied the complementary protection criterion. This required the Tribunal to consider the applicant's claims in light of Ministerial Direction No. 56 and relevant Departmental guidelines, specifically PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines, as well as any country information assessments prepared by the Department of Foreign Affairs and Trade. The Tribunal was also required to consider the operation of section 48A of the Migration Act 1958 (Cth), which imposes a bar on further protection visa applications in certain circumstances, and how it applied to an application focusing solely on the complementary protection criterion, as established in cases such as *SZGIZ v MIAC* and *AMA15 v MIBP*.

The Tribunal reasoned that section 48A, as interpreted by the Full Federal Court, confined the bar to further protection visa applications that duplicated earlier unsuccessful applications on the same essential criterion. In this instance, the applicant's current application was limited to the complementary protection criterion, distinct from his earlier refugee criterion claim. The Tribunal found no suggestion that the applicant satisfied section 36(2) by being a member of the same family unit as a person who held a protection visa under section 36(2)(a) or (aa). Consequently, the Tribunal concluded that the applicant did not satisfy the criterion in section 36(2).

The Tribunal affirmed the decision not to grant the applicant a Protection visa.