1421008 (Refugee)

This matter concerned an application for a protection visa by a bisexual man from Mongolia. The applicant had previously applied for a protection visa in 2011, which was refused, and his subsequent review application was also unsuccessful. The current application was made in July 2013, and the Tribunal was required to consider whether the applicant met the complementary protection criterion.

The primary legal issue before the Tribunal was whether the applicant qualified for a protection visa under the complementary protection provisions, specifically s.36(2)(aa) of the Migration Act 1958 (Cth). This required determining if Australia had protection obligations towards the applicant on grounds other than those covered by the Refugee Convention. The Tribunal also had to consider the application of s.48A of the Act, which imposes a bar on further protection visa applications in certain circumstances, and whether the applicant's previous application and review impacted his ability to make a further claim.

The Tribunal affirmed the decision not to grant the applicant a protection visa. It found that the applicant's previous application had been refused, and while the current application was made before the amendments to s.48A in May 2014, the Tribunal considered the principles established in cases like *SZRNJ v MIAC* and *SZGIZ v MIAC*. These cases indicated that a further application based on complementary protection could be valid even if a prior application had been refused, provided it did not simply duplicate the same essential criterion. However, the Tribunal concluded that the applicant did not satisfy the criteria for a protection visa, nor was he a member of the same family unit as a person who held a protection visa. Therefore, the Tribunal affirmed the decision to refuse the protection visa.