1612309 (Refugee)

The applicant, an elderly widowed woman from Serbia, sought a protection visa on the basis of complementary protection. She claimed that upon return to Serbia, she would face a real risk of significant harm due to her advanced age, significant health issues, and the perceived corruption and mistreatment of the elderly within the Serbian healthcare system. She further asserted that she had no living family members in Serbia to provide care, and that aged care facilities were limited and often abusive. The applicant also indicated an intention to seek Ministerial Intervention under s.417 of the Migration Act 1958 if her protection visa application was unsuccessful.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa, specifically under the complementary protection provisions of s.36(2)(aa) of the Migration Act 1958. This required the Tribunal to determine if there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Serbia, the applicant faced a real risk of suffering significant harm. The Tribunal was also asked to consider referring the matter for Ministerial Intervention.

The Tribunal affirmed the decision not to grant the applicant a protection visa. It found that the applicant did not satisfy the criteria under s.36(2) of the Act. While acknowledging the applicant's submissions regarding her health, lack of family support in Serbia, and the general conditions of the Serbian healthcare system, the Tribunal concluded that these circumstances did not establish a well-founded fear of persecution or a real risk of significant harm as defined by the Act. The Tribunal noted that the Minister's powers under s.417 were non-compellable and non-reviewable, but it did consider the material before it, observing that compassionate grounds appeared to exist, including the applicant's age, serious ill-health, inability to travel, and the presence of her Australian citizen son. However, the ultimate decision to intervene rested solely with the Minister.