1419444 (Refugee)

This matter concerned an application for review of a decision by the Tribunal not to grant the first and second applicants Protection visas. The first applicant had previously lodged a protection visa application in 1997, which was refused and affirmed by the Refugee Review Tribunal in 1998. He remained in Australia as an unlawful non-citizen and subsequently lodged a second application for a protection visa in 2014. The second applicant entered Australia in 1998 on a temporary visa using a false passport.

The primary legal issue before the court was whether the first applicant's second protection visa application was barred by section 48A of the Migration Act 1958 (Cth), which generally prevents a non-citizen who has had a visa refused or cancelled from applying for a further visa while remaining in the migration zone. The court was also required to determine whether the applicants met the criteria for a protection visa under section 36(2)(aa) of the Act, which relates to complementary protection.

The court considered the Full Federal Court's decision in *SZGIZ v MIAC*, which held that the operation of the statutory bar in section 48A is confined to a further application that duplicates the same essential criterion for the grant of a visa as in an earlier unsuccessful application. This means it does not prevent an applicant from seeking a visa on different grounds, such as complementary protection or family membership, if their previous application was based on refugee criteria. However, in this instance, the Tribunal found that the first applicant's claims in his second application, relating to property demolition, loss of household registration, and inability to obtain employment or compensation, did not establish a fear of persecution or harm that would engage Australia's protection obligations under section 36(2)(aa). The Tribunal was not satisfied that either applicant met the criteria for a protection visa.

Consequently, the Tribunal affirmed the decision not to grant the applicants Protection visas.