1609652 (Refugee)

This matter concerned an application for a protection visa by a woman from Tonga. The applicant had separated from her husband in 2014 and alleged a history of domestic abuse by him. She stated she had a right to enter and reside in another country where her ex-husband had returned, and she feared harm from him there due to his alcohol and drug abuse and the small Tongan community. The applicant had obtained restraining orders against him in Australia. The Administrative Appeals Tribunal was required to determine whether Australia had protection obligations towards the applicant, particularly in light of her right to enter and reside in another country.

The Tribunal considered the provisions of section 36 of the Migration Act 1958 (Cth), which outlines the criteria for a protection visa. Specifically, it examined subsection 36(3), which states that Australia is taken not to have protection obligations in respect of a non-citizen who has not availed themselves of a right to enter and reside in a country other than Australia. The Tribunal also considered the exceptions to this provision under subsections 36(4), (5), and (5A). The applicant’s claim for protection was based on her fear of harm from her ex-husband in the country to which she had a right to return.

The Tribunal affirmed the decision not to grant the applicant a protection visa, finding it unnecessary to determine whether Australia had protection obligations under section 36(2) given the potential application of section 36(3). However, the Tribunal considered the case to be appropriate for referral to the Minister for consideration under section 417 of the Migration Act. This referral was based on the applicant being a victim of serious domestic violence and the strong compassionate circumstances, including the fact that her five children are Australian permanent residents, are thriving in Australia, and would suffer serious disruption and irreversible harm if their mother were removed. The Tribunal encouraged the applicant to submit further information directly to the Minister regarding her exceptional and compassionate circumstances.