1716967 (Refugee)

The Administrative Appeals Tribunal (AAT) considered an application for a protection visa made by an Eritrean national. The applicant claimed to fear persecution if returned to Eritrea due to his past involvement with the Eritrean People’s Liberation Front (EPLF), his failure to complete mandatory national service, and his mental health conditions. The AAT was required to determine whether the applicant met the definition of a refugee under the Migration Act 1958 (Cth) and whether any exclusion clauses applied.

The central legal issues before the AAT were whether the applicant had a well-founded fear of persecution for a Convention reason, and if so, whether he was excluded from being a refugee due to having committed serious non-political crimes or acts contrary to the purposes and principles of the United Nations. The Tribunal also needed to consider the complementary protection criterion, which involves assessing whether there are substantial grounds for believing that the applicant would suffer significant harm if removed from Australia. This included assessing the risk of torture, cruel, inhuman, or degrading treatment or punishment.

The AAT found that while the applicant had a history that included criminal offences and mental health issues, the Tribunal was satisfied that he met the definition of a refugee under section 5H(1) of the Act. However, the AAT determined that it lacked the power to definitively determine issues relating to section 5H(2) (exclusion clauses) or section 36(1)(C) (complementary protection). Consequently, the AAT remitted the matter to the Department of Home Affairs for reconsideration, directing them to consider whether the exclusion clauses in section 5H(2) applied and to assess the applicant's claim under section 36(1)(C).