1417062 (Refugee)

This matter concerned an application for judicial review of a decision by the Refugee Review Tribunal (RRT) to affirm the refusal of protection visas to the first and second named applicants. The third and fourth named applicants, who were Australian citizens, were not the subject of the Tribunal's assessment of protection claims. The first and second applicants, nationals of India, had a lengthy and complex migration history in Australia, including multiple previous applications for protection visas, reviews by the RRT, and appeals through the Federal Magistrates Court, Federal Court, Full Federal Court, and the High Court, all of which ultimately upheld the refusal of their applications. Their most recent application was lodged in December 2013, following the Federal Court's judgment in *SZGIZ v MIAC* [2013] FCAFC 71.

The primary legal issue before the Tribunal was whether the applicants satisfied the criteria for a protection visa under section 36(2) of the *Migration Act 1958* (Cth), specifically in light of the *SZGIZ* decision. The applicants sought to rely on *SZGIZ* to argue that their most recent application, lodged after previous unsuccessful applications, was valid. The Tribunal was required to determine if the *SZGIZ* judgment permitted a subsequent application on different grounds when previous applications had been refused, and whether the applicants met the criteria for complementary protection or family membership.

The Tribunal reasoned that while the *SZGIZ* decision allowed for subsequent applications based on different criteria than those previously assessed, it did not obligate the Tribunal to reconsider grounds already determined to be unsuccessful. The Tribunal found that the applicants had not provided evidence to suggest they had a right to enter and reside in any country other than India, nor were they excluded from Australia's protection under section 36(3) of the Act. Crucially, the Tribunal was not satisfied that the applicants met the criteria for a protection visa under section 36(2)(aa) (complementary protection) or section 36(2)(c) (family membership). Consequently, as they did not satisfy the criteria for a protection visa, they could not be granted one.

The Tribunal affirmed the decision not to grant the applicants protection visas.