1805247 (Refugee)

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse the applicant, an Indonesian citizen, a protection visa. The applicant arrived in Australia in December 2012 and applied for a protection visa in June 2017, currently holding a bridging visa. The delegate refused the visa on the grounds that the applicant was not a refugee under section 5H(1) of the *Migration Act 1958* (Cth) and that there were no substantial grounds to believe she would suffer significant harm upon removal to Indonesia.

The legal issues before the court were whether the applicant met the criteria for a protection visa, specifically whether she was a refugee as defined by the Act or faced a real risk of significant harm upon removal to Indonesia, thereby engaging Australia's protection obligations under section 36(2)(a) or (aa) of the Act. The court also considered the applicant's claims of fear stemming from her first husband's disappearance and threats from his family, as well as her subsequent marriage to an Australian citizen and the birth of their child.

The court reasoned that the applicant had not established that she met the criteria for a protection visa. While acknowledging the applicant's initial fear of her first husband's family, the court noted her evidence that, due to her remarriage and the birth of her son, she no longer feared returning to Indonesia and believed her first husband's family would not act against her. The court applied the principles that an applicant must satisfy the decision-maker of the statutory elements and that a decision-maker is not required to make the applicant's case or uncritically accept all allegations.

Although the Tribunal affirmed the decision not to grant the protection visa, it referred the matter to the Minister for consideration under section 417 of the Act. This referral was based on the potential for strong compassionate circumstances, specifically the risk of serious, ongoing, and irreversible harm and continuing hardship to the applicant's Australian citizen son and the Australian family unit, should the applicant be removed from Australia.