1511665 (Refugee)

This matter concerned an application for Protection visas by a family of six, with the primary claims relating to the second applicant, a student. The applicants sought review of a decision not to grant them Protection visas, arguing that the second applicant faced mistreatment and abuse at school in South Korea, and that the South Korean education system could not cater to her needs, leading to a fear of persecution. The applicants contended that Australia had protection obligations under either the "refugee" criterion or the "complementary protection" criterion.

The court was required to determine whether the applicants met the criteria for a Protection visa under section 36 of the Migration Act 1958 (Cth). Specifically, the court had to consider whether the second applicant was a refugee within the meaning of Article 1A(2) of the Refugee Convention, owing to a well-founded fear of persecution for reasons of membership of a particular social group, or whether Australia had complementary protection obligations due to a real risk of significant harm upon removal. The court also had to consider whether the other applicants, as family members, could satisfy the visa criteria.

The Tribunal found that the first named applicant did not satisfy the criteria under section 36(2)(a) (refugee criterion) or section 36(2)(aa) (complementary protection criterion) of the Act. Consequently, as the primary applicant did not meet these criteria, the remaining applicants, as family members, were unable to satisfy the criteria under section 36(2)(b) or (c) of the Act. Therefore, the Tribunal affirmed the decision not to grant the Protection visas to any of the applicants.