1801291 (Refugee)

This matter concerned an application for a Protection (Class XA) visa by a Sri Lankan national. The applicant arrived in Australia in July 2012 and claimed to be the de facto partner of a person who held a Temporary Protection (Class XD) visa, with whom she had two children. The core dispute revolved around whether the applicant met the criteria for a protection visa, particularly in relation to her family unit status and the type of visa held by her de facto partner. The case was before the Tribunal on remittal.

The legal issues before the Tribunal were whether the applicant was a person in respect of whom Australia had protection obligations under the 'refugee' or 'complementary protection' criteria, or alternatively, whether she was a member of the same family unit as a person who held a protection visa of the same class. A key consideration was whether the applicant was a 'prescribed applicant' for the purposes of regulation 2.08F of the Migration Regulations 1994, which deals with the conversion of Protection (Class XA) visa applications to Temporary Protection (Class XD) visa applications.

The Tribunal reasoned that the applicant was a non-citizen of Sri Lanka, and despite lacking formal identity documents due to displacement from the civil war, her identity and nationality were sufficiently established. Crucially, the Tribunal found that the applicant was a member of the same family unit as her de facto partner, who held a Temporary Protection (Class XD) visa granted under section 36(2)(aa) of the Migration Act 1958. The Tribunal determined that the applicant was a 'prescribed applicant' under regulation 2.08F(2) because she was an unauthorised maritime arrival and had not been immigration cleared on her last entry.

Consequently, the Tribunal remitted the matter for reconsideration with the direction that the applicant's application for a Protection (Class XA) visa would be taken to be, and always to have been, an application for a Temporary Protection (Class XD) visa. As her de facto partner held a protection visa of the same subclass, the applicant would then meet the criteria in section 36(2)(c)(ii) of the Act.