1807182 (Refugee)

The case involved two applicants, a son and his step-father, who sought protection visas in Australia. They applied as members of the same family unit as the first-named applicant, who was the son's mother and the step-father's wife. The initial application was refused by a delegate of the Minister for Home Affairs, who found that the first-named applicant had access to statutory effective protection in another European Union country. The applicants sought merits review of this decision. Tragically, the first-named applicant passed away during the review process. The Tribunal was required to determine whether the remaining applicants met the refugee criterion or were entitled to complementary protection.

The legal issues before the Tribunal were whether the applicants qualified as refugees under the Migration Act 1958, and if not, whether they met the criteria for complementary protection. Specifically, the Tribunal had to consider if there was a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and if effective protection measures were available in a receiving country. For complementary protection, the Tribunal needed to assess if there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia to a receiving country, the applicants faced a real risk of suffering significant harm.

The Tribunal found that it had no jurisdiction concerning the first-named applicant due to her passing. For the second and third-named applicants, the Tribunal affirmed the delegate's decision to refuse the protection visas. The Tribunal reasoned that as Hungarian nationals and European Union citizens, the applicants had the right to enter and reside in another EU country, which provided them with statutory effective protection. The Tribunal concluded that there was not a well-founded fear that another EU country would return them to Hungary, nor were there substantial grounds to believe they would suffer significant harm as a necessary and foreseeable consequence of relocating within the EU. Therefore, Australia did not have protection obligations towards them under section 36(3) of the Act. The Tribunal noted that while EU citizens could be expelled on grounds of public policy or security, this would only occur in cases of very serious threats, which were not considered applicable to the applicants. The Tribunal expressed sympathy for the applicants' situation and suggested exploring other visa options or applying for Ministerial Intervention.