1619684 (Refugee)

This matter concerned the review of a decision to refuse a protection visa application made by the first and second named applicants, who are husband and wife, and their child. The applicants, who arrived in Australia in 2008, had lodged an initial protection visa application in August 2008, which was refused by a delegate in October 2008. The applicants did not attend their scheduled interview or Tribunal hearing, and the Refugee Review Tribunal upheld the delegate's decision in December 2008. A subsequent application by their child in 2011 was also refused and affirmed by the Tribunal. The Federal Court remitted the matter for a fresh decision, allowing the first applicant to make a further application under the complementary protection criterion, given his prior application was refused before the commencement of that criterion. The Tribunal was required to consider the claims of the first and second applicants, with the second applicant's claims to be assessed under both the Refugees Convention criterion and the complementary protection criterion.

The primary legal issues before the Tribunal were the credibility of the first and second applicants, and whether, on the accepted claims, they met the criteria for a protection visa under either the Refugees Convention or the complementary protection provisions. Specifically, the Tribunal had to determine if the first applicant had established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or if there were substantial grounds for believing that removal from Australia would result in a real risk of significant harm. For the second applicant, the Tribunal needed to assess her claims under both the Convention and complementary protection, and also consider her status as a member of the same family unit as the first applicant.

The Tribunal considered the criteria for a protection visa as set out in section 36 of the Migration Act 1958 (Cth) and Schedule 2 of the Migration Regulations 1994 (Cth). These criteria include obligations under the Refugees Convention and complementary protection grounds. The Tribunal noted that the first applicant's claims under the Refugees Convention had been determined, and the current review focused on the complementary protection criterion. The second applicant's claims were to be assessed under both the Convention and complementary protection. The Tribunal heard evidence from the first and second applicants with the assistance of an interpreter. The Tribunal's ultimate decision was to affirm the delegate's decision to refuse the protection visa.