1708431 (Refugee)

This matter concerned an application for a protection visa by a woman from the Philippines, who was married to an Australian citizen and had two Australian citizen children. The applicant had remained in Australia unlawfully after her tourist visa expired. Her husband had passed away in 2013. The applicant sought protection on behalf of her children, alleging that if she were forced to return to the Philippines without them, she would suffer severe emotional distress, and that her children would be left without care and face hardship due to the Philippines' social security system. The applicant explicitly stated that she had not experienced any harm in her place of residence. The Administrative Appeals Tribunal reviewed the decision not to grant the applicant a protection visa.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2) of the Migration Act 1958 (Cth), specifically whether she was a refugee or faced a real risk of significant harm if returned to the Philippines, and whether she qualified as a member of the same family unit as a person who held a protection visa. The Tribunal was required to consider the applicant's claims in light of the definitions of "refugee" and "significant harm" as provided in the Act, and to take into account relevant guidelines and country information.

The Tribunal reasoned that the applicant did not satisfy the refugee criterion under section 36(2)(a) as there were no claims of persecution based on the prescribed grounds. Furthermore, the Tribunal found that the applicant did not meet the complementary protection criterion under section 36(2)(aa), as she had not established substantial grounds for believing that there was a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia. The applicant's concerns related to the care of her Australian citizen children and potential hardship in the Philippines, rather than a well-founded fear of persecution or significant harm to herself. The Tribunal also noted that the applicant did not satisfy the criterion under section 36(2)(b) or (c) as she was not a member of the same family unit as a person who held a protection visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.