1709512 (Refugee)

The applicant sought review of a decision to affirm the refusal of a protection visa. The applicant claimed to be homosexual and to fear returning to Indonesia due to that country's stance on homosexuality. The applicant also indicated a desire to lawfully work in Australia and was married to an Australian citizen. The Tribunal considered the applicant's oral evidence, country information, and relevant guidelines, including Ministerial Direction No. 84, the Refugee Law Guidelines, and the Complementary Protection Guidelines.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, as a refugee with a well-founded fear of persecution, or under section 36(2)(aa), by facing a real risk of significant harm as a necessary and foreseeable consequence of removal to Indonesia. The Tribunal was required to assess the genuineness and well-foundedness of the applicant's asserted fear, and whether any feared harm amounted to "significant harm" as defined by the Act.

The Tribunal reasoned that the mere assertion of fear does not establish its genuineness or well-foundedness, and the onus rests on the applicant to satisfy the statutory elements. Applying principles of credibility assessment, the Tribunal noted that while a reasonable approach is required, it is not obliged to accept all allegations uncritically. The Tribunal found that the applicant had not satisfied the criteria for a protection visa, either as a refugee or under the complementary protection provisions. There was also no suggestion that the applicant qualified as a family member of someone who met these criteria.

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