1419983 (Refugee)

This matter concerned an application for a Protection visa by a Nepalese national. The applicant sought review of a decision by the Tribunal to affirm the refusal of his visa application. The Tribunal was required to consider whether the applicant met the criteria for a Protection visa under section 36 of the Migration Act 1958 (Cth) and Schedule 2 of the Migration Regulations 1994 (Cth).

The primary legal issue before the Tribunal was whether it could consider claims relating to complementary protection under section 36(2)(aa) of the Act, given that the applicant had previously been refused a visa on the basis of the refugee criterion under section 36(2)(a). The Tribunal also had to determine whether the applicant had established that Australia owed him protection obligations under the complementary protection criterion, which requires a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia.

The Tribunal, applying the Full Federal Court's decision in *SZGIZ v MIAC* (2013) 212 FCR 235 and the Federal Court's decision in *AMA15 v MIBP* [2015] FCA 1424, concluded that it was confined to considering claims under section 36(2)(aa) where an earlier application had been refused on the basis of section 36(2)(a). The Tribunal noted that the applicant's representative had requested a deferral pending a Federal Court appeal on this issue, but proceeded to consider the complementary protection claims. The Tribunal also considered relevant Ministerial Directions and policy guidelines.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a Protection visa, finding that the applicant did not satisfy the criteria under section 36(2) of the Act.