1829488 (Refugee)

The Administrative Appeals Tribunal reviewed a decision not to grant protection visas to a husband and wife. The applicants, who were of Madurese ethnicity, claimed to fear persecution in Indonesia due to their inter-sectarian marriage, with the husband being Shia Muslim and the wife Sunni Muslim. They had previously relocated after an attack but had since had limited contact with their families and communities. A significant factor in the case was that their child was an Australian citizen.

The Tribunal was required to determine whether the applicants met the criteria for a protection visa under the Migration Act 1958. Specifically, it needed to assess if they had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether effective protection measures were available to them in Indonesia. The Tribunal also considered the implications of the applicants' Australian-born child being a citizen.

The Tribunal found that the third applicant, the child, was an Australian citizen and therefore did not meet the requirements for a protection visa. However, the Member considered the case to involve unique and exceptional circumstances warranting referral to the Minister for special consideration under section 417 of the Act. The Member accepted that the separation of the parents from their Australian citizen child would cause irreparable damage to the child's well-being and likely result in serious, ongoing, and irreversible harm and continuing hardship to the child. Consequently, the Tribunal affirmed the decision not to grant the protection visas but referred the matter to the Department for consideration by the Minister.