1719348 (Refugee)

The applicant, a citizen of the Philippines, sought a Protection visa, claiming she feared returning to her home country due to past experiences of inhuman treatment and physical harm from her cousin, as well as ongoing harassment and discrimination related to her sexual orientation as a homosexual. She also cited health issues, including anxiety and depressive disorders, which she believed would be exacerbated by a return. The delegate of the Minister refused to grant the visa, and the applicant sought review of this decision in the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant met the criteria for a Protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), or alternatively, whether she met the complementary protection criterion under section 36(2)(aa). This involved assessing whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to the Philippines, the applicant would suffer significant harm. The Tribunal also had to consider the meaning of "significant harm" as defined in sections 36(2A) and (2B) of the Act, and whether the applicant's claims of persecution based on her sexual orientation and membership of a particular social group, specifically "Lesbian in the Philippines," were well-founded.

The Tribunal considered the applicant's detailed account of her experiences, including physical assaults and threats from her cousin, Mr A, who viewed her as a disgrace due to her sexual orientation and birth out of wedlock. It also noted the social stigma and maltreatment she faced from other relatives and in society due to being homosexual. The Tribunal acknowledged the applicant's mental health struggles, including severe depression and anxiety, which she attributed to these experiences and which she believed would worsen upon return. The Tribunal found that the delegate had failed to adequately consider the evidence regarding the applicant's claims of persecution and the risk of significant harm.

Consequently, the Tribunal remitted the decision to the delegate for reconsideration, directing that the delegate must undertake a fresh assessment of the applicant's claims and the evidence presented, paying particular attention to the risk of harm she would face if returned to the Philippines.