1934505 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa. The applicant, an elderly woman suffering from Alzheimer's disease and dementia, claimed to fear returning to South Africa due to her vulnerability and isolation. The Tribunal had to determine whether the applicant met the criteria for a protection visa, either under the refugee criterion or the complementary protection criterion.

The primary legal issues before the Tribunal were whether the applicant qualified as a refugee under section 36(2)(a) of the Migration Act 1958 (Cth), and if not, whether she met the complementary protection criterion under section 36(2)(aa). This involved assessing the applicant's fear of persecution or significant harm in South Africa, considering her advanced age, cognitive decline, and the general safety concerns in her country of origin. A key aspect of the assessment was the applicant's competence to give evidence and instructions, given her medical condition.

The Tribunal found that the applicant did not meet the refugee criterion. However, it was satisfied that the applicant met the complementary protection criterion under section 36(2)(aa). The Tribunal reasoned that as a necessary and foreseeable consequence of removal to South Africa, there was a real risk that the applicant would suffer significant harm, particularly given her severe dementia and Alzheimer's disease, which would be exacerbated by detachment from her family support in Australia. The Tribunal noted that the medical evidence indicated her cognitive function had severely declined and that separation from her daughter would be detrimental to her psychiatric health.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(aa) of the Migration Act.