2010545 (Refugee)

This matter concerned an application for review of a delegate's decision to refuse a protection visa. The applicant, a French national born in New Caledonia, claimed his wife had instigated his removal from her protection visa application to improve her own chances, and that his family had pressured him to divorce her due to marrying outside their custom. He also referred to his wife making allegations of domestic violence against him, and an apprehended violence order taken out by him against her. The applicant stated he would return to his home island in New Caledonia, where his parents reside, and that while there was unrest in the capital, Noumea, he did not fear harm on his home island.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) (the Act), specifically whether he had a well-founded fear of persecution in France, or under section 36(2)(aa) of the Act, whether there was a real risk of significant harm as a necessary and foreseeable consequence of his removal from Australia. The Tribunal also considered whether the applicant qualified as a member of the same family unit as a person who met these criteria, pursuant to sections 36(2)(b) and (c) of the Act.

The Tribunal found that the applicant did not have a well-founded fear of persecution. While acknowledging recent unrest in Noumea, it noted the applicant's evidence that he would reside on his home island, where such problems did not exist. The Tribunal also found that the applicant did not face a real risk of significant harm. It reasoned that separation from his children, while difficult, did not constitute significant harm under the Act, and that any potential disapproval from his village due to his marriage was mitigated by his separation from his wife and the fact his children would not be returning to New Caledonia. Furthermore, the Tribunal determined that the applicant was not a member of the same family unit as any qualifying person, particularly given his separation from his wife, finding their relationship was not genuine and continuing.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa, as he did not satisfy the criteria under section 36(2) of the Act.