1418081 (Refugee)

The applicant sought review of a decision by the Refugee Review Tribunal (RRT) to affirm the refusal of her application for a protection visa. The applicant had lodged her initial protection visa application in November 2013, claiming fear of harm and persecution upon return to China due to various factors including intimidation by villagers, assault by her ex-husband, and difficulties with her hukou registration, property rights, and social benefits. The delegate's decision record indicated that the applicant had previously applied for a protection visa in October 1996 under a different name and date of birth, which was refused and subsequently affirmed by the RRT. A request for Ministerial Intervention was also refused.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa under section 36(2) of the *Migration Act 1958* (Cth). This involved considering the applicant's claims of persecution and the implications of her previous visa applications and the statutory bar under section 48A of the Act. The Tribunal also had to determine if the applicant met the criteria for complementary protection or family membership.

The Tribunal's reasoning was informed by the Full Federal Court's decision in *SZGIZ v MIAC*, which clarified that section 48A of the *Migration Act 1958* (Cth) only bars further applications that duplicate the same essential criterion for a visa as a previous unsuccessful application. This meant that an application based on complementary protection or family membership was not necessarily barred if the earlier application was based solely on the refugee criterion. However, in this instance, the Tribunal found no suggestion that the applicant satisfied the criteria for being a member of the same family unit as a person who held a protection visa. Consequently, the applicant did not satisfy the criterion in section 36(2).

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