2017942 (Refugee)

The applicant, a citizen of the Czech Republic, sought a Protection visa in Australia. She had entered Australia on a visitor visa, married an Australian citizen, and had an Australian citizen son. Following domestic violence, she separated from her ex-partner and was living in crisis accommodation. The applicant did not fear harm in the Czech Republic and believed its authorities would protect her. However, she feared separation from her son, who was subject to a 'no fly' restriction by order of the Family Court, preventing him from leaving Australia. The Department refused her Protection visa application.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Protection visa, specifically under section 36(2)(a) (as a refugee) or section 36(2)(aa) (complementary protection) of the Migration Act 1958. The applicant's case hinged on her fear of separation from her Australian citizen son, rather than a fear of harm in her country of nationality.

The Tribunal considered the applicant's claims in light of the relevant legislative provisions and Ministerial Directions. It was accepted that the applicant did not fear harm in the Czech Republic and would not be persecuted there. Therefore, she did not satisfy the criterion of being a refugee under section 36(2)(a). The Tribunal also examined whether she met the complementary protection criterion under section 36(2)(aa), which requires a substantial ground for believing that, as a necessary and foreseeable consequence of removal from Australia, there is a real risk of suffering significant harm. The Tribunal found that separation from her son, while a distressing consequence, did not constitute "significant harm" as defined by the Act, nor did it establish that Australia had protection obligations towards her.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Protection visa, as she did not satisfy the criteria under section 36(2) of the Act.