1724639 (Refugee)

This matter concerned an application for review of a delegate's decision to refuse the applicant, a United States citizen born in another country, a protection visa. The applicant had arrived in Australia on a visitor visa and subsequently applied for a protection visa. The applicant's father, a US citizen, had abandoned the family, and the applicant's mother was unable to care for him due to health issues. The applicant had been cared for by his grandmother and then his maternal aunt in Australia, who had obtained legal guardianship. An earlier application for an orphan relative visa had been unsuccessful.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36 of the Migration Act 1958 (Cth). This involved determining if Australia had protection obligations towards the applicant, either under the "refugee" criterion (section 36(2)(a)) or the "complementary protection" criterion (section 36(2)(aa)). The Tribunal was required to assess whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or alternatively, whether there was a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia.

The Tribunal found that the applicant did not meet the "refugee" criterion as there was no claim of persecution or a well-founded fear of persecution. However, the Tribunal was satisfied that the applicant met the "complementary protection" criterion under section 36(2)(aa). This was based on the assessment that as a US citizen with no legal right of return to his country of birth, no one to care for him there, and the potential for serious harm if placed in the foster care system in the US, there was a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia. The Tribunal also considered the best interests of the child in its assessment.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(aa) of the Migration Act.