2007574 (Refugee)

The Tribunal considered the claims of an applicant seeking a protection visa. The applicant contended that upon return to Portugal, they would face serious harm due to a lack of access to mental health facilities, an inability to subsist due to their mental health condition and lack of family support, and the impact of the COVID-19 pandemic. The Tribunal was required to determine whether Australia owed protection obligations to the applicant under sections 36(2)(a) (refugee status) and 36(2)(aa) (complementary protection) of the Migration Act 1958 (Cth).

The Tribunal's reasoning focused on the availability of healthcare and social security in Portugal. It found that as a Portuguese citizen, the applicant would be entitled to access healthcare, including mental health services and necessary medication, on the same basis as any other citizen. While acknowledging that Portuguese mental health facilities might be under-resourced, the Tribunal concluded there was no evidence of systematic or discriminatory denial of treatment. Regarding the applicant's capacity to subsist, the Tribunal noted Portugal's welfare system, including a non-contributory social disability pension for individuals with severe mental illness, which the applicant would be eligible for. The Tribunal determined that the benefits available would be sufficient for the applicant to subsist, thereby mitigating the risk of destitution. Furthermore, the Tribunal found that the lack of family support in Portugal, while presenting challenges, would not amount to serious harm, given the applicant's entitlement to social security and healthcare. The impact of COVID-19 was also considered, with the Tribunal finding no systematic or discriminatory exposure or treatment of the applicant.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa. It concluded that there were no substantial grounds for believing that the applicant would suffer significant harm, as defined by the Act, upon return to Portugal. This was based on the assessment that the applicant would have access to necessary healthcare and social security benefits, and that the Portuguese government had not acted with intent to cause significant harm. Consequently, the Tribunal found that Australia did not owe protection obligations to the applicant under either section 36(2)(a) or 36(2)(aa) of the Migration Act 1958.