2118018 (Refugee)

The applicant sought a protection visa, claiming fear of persecution in India due to disabilities incurred from a motor vehicle accident in Australia. The primary dispute concerned whether these circumstances met the criteria for protection under Australian law, specifically relating to membership of a particular social group and the risk of significant harm upon return to India. The matter was heard by the Tribunal.

The Tribunal was required to determine if the applicant qualified as a refugee under section 5H of the *Migration Act 1958* (Cth) or if they met the complementary protection criterion under section 36(2)(aa) of the Act. This involved assessing whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether they faced a real risk of significant harm as a necessary and foreseeable consequence of removal to India.

The Tribunal found that the applicant's initial claim of persecution for membership of a particular social group was largely speculative and had been effectively abandoned in favour of a request for ministerial intervention on compassionate grounds. While acknowledging the devastating impact the inability to access necessary medical and psychological treatment in India would have on the applicant's health and dignity, the Tribunal could not identify the essential element of intention required to establish "significant harm" as defined by the Act. The Tribunal noted that the risk stemmed from the cessation of insurance entitlements upon departure from Australia, rather than an intentional act of harm by Indian authorities or individuals.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa. However, the Tribunal referred the matter to the Minister under section 417 of the Act for consideration of ministerial intervention on compassionate grounds.