1713029 (Refugee)

The Administrative Appeals Tribunal (Cth) considered the case of an applicant from Serbia seeking a protection visa. The applicant, who had arrived in Australia on a partner visa and whose application for a combined partner visa had previously been refused, lodged the current application under complementary protection grounds. She claimed a fear of arbitrary deprivation of life, degrading treatment, and deep depression if she returned to Serbia without her husband, an Australian citizen, and their young children.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa, specifically whether she had a well-founded fear of persecution or faced a real risk of significant harm upon removal from Australia to Serbia. The Tribunal was required to assess the applicant's claims against the definitions of "refugee" and "significant harm" as provided in the *Migration Act 1958* (Cth), and consider the availability of effective protection measures in Serbia.

The Tribunal reasoned that the applicant had not established a well-founded fear of persecution. While acknowledging her stated fears of degrading treatment and depression, the Tribunal found no evidence of past harm or a present, genuine fear of persecution for reasons recognised under the Act. The applicant herself indicated that separation from her husband might not be indefinite and that his visits could mitigate her feared harm, suggesting uncertainty about the severity and inevitability of the feared consequences. Furthermore, the Tribunal noted that the applicant's children were not of school age and that they would not be compelled to depart Australia if her visa was refused, suggesting that alternative arrangements for her children's care in Australia were possible. The Tribunal also considered the possibility of the applicant applying for a partner visa offshore, which she had been advised to do previously.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa. While the Tribunal would forward evidence of the applicant's children and husband's business to the Minister, it was noted that requests not meeting the Ministerial Guidelines would be finalised by the Department. The applicant was also advised that it remained open to her to provide further information to the Minister regarding unique or exceptional circumstances.