1924718 (Refugee)

This case concerned an application for a protection visa by two non-citizens from South Africa. The applicants claimed they faced significant difficulties due to their age, health, isolation, and financial and housing issues, leading to a likelihood of physical, mental, and economic harm. The matter came before the Tribunal for review of a delegate's decision to refuse the protection visa application.

The legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) as refugees, or under section 36(2)(aa) on complementary protection grounds. Specifically, the Tribunal had to determine if the applicants held a well-founded fear of persecution in South Africa, or if there were substantial grounds for believing they would suffer significant harm as a necessary and foreseeable consequence of removal. The Tribunal was also required to consider whether the applicants' circumstances fell within any unique or exceptional circumstances as set out in the Minister's guidelines, warranting referral for ministerial intervention.

The Tribunal found that while the applicants faced considerable difficulties and adverse conditions in South Africa, these circumstances did not amount to persecution as defined by the Act. Consequently, the Tribunal was not satisfied that the applicants met the refugee criterion under section 36(2)(a) or the complementary protection criterion under section 36(2)(aa). However, the Tribunal acknowledged the strong compassionate circumstances presented by the applicants' age, health, isolation, and financial precarity, which, if not recognised, would result in serious and irreversible harm and hardship.

Accordingly, the Tribunal affirmed the decision to refuse the protection visa but referred the case to the Department for consideration by the Minister under section 417 of the Act, recognising the unique and exceptional circumstances.