1732984 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a Greek national who arrived in Australia in 2013 and whose visa subsequently ceased. The applicant claimed to have left Greece due to discrimination and economic hardship, asserting that individuals from the outer islands faced discrimination from mainland Greeks and lacked legal protection. The applicant did not wish to provide oral evidence, consenting to a decision based on the available material, and indicated an intention to seek ministerial intervention.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically considering the provisions of section 36(3) of the Migration Act 1958. This section requires that a non-citizen must have taken all possible steps to avail themselves of a right to enter and reside in any country apart from Australia, including their country of nationality. The Tribunal was required to determine if the applicant possessed such a legally enforceable right to enter and reside in another country, and if so, whether they had exhausted all avenues to exercise it.

The Tribunal reasoned that the applicant, as a citizen of the European Union, had a right to enter and reside in other EU countries. It applied the established legal principle that for the purposes of section 36(3), this right must be legally enforceable and existing, not merely potential or past. The Tribunal noted that the applicant had not demonstrated that he had taken all reasonable steps to avail himself of this right to enter and reside within the European Union. Consequently, the Tribunal concluded that the applicant did not satisfy the requirements of section 36(3).

The Tribunal affirmed the decision not to grant the applicant a protection visa. It also noted that the applicant and his agent remained at liberty to seek ministerial intervention directly if they believed the case warranted it based on compelling or compassionate circumstances.