2202420 (Refugee)

The applicant, a national of Estonia, sought review of a decision by the Minister to refuse to grant a protection visa. The applicant claimed to fear harm from criminal associates of an individual they had informed on, and that their identity had been revealed in media reports. The applicant also contended that their mental health condition meant they would not receive adequate care in Estonia, as health and mental health facilities there were under-resourced. The applicant further argued that they had developed close ties to the Australian community, including an Australian citizen son, and that these factors warranted Ministerial intervention. The Administrative Appeals Tribunal (AAT) affirmed the Minister's decision.

The primary legal issue before the court was whether the applicant had established a well-founded fear of persecution for a reason specified in section 5 of the *Migration Act 1958* (Cth), specifically as a member of a particular social group. This involved determining whether the applicant's fear of harm from criminal associates constituted persecution, and if the group defined by their past actions as a criminal informant, coupled with their revealed identity, constituted a particular social group for the purposes of the *Migration Act*. The court also considered whether the applicant's mental health condition and the state of Estonian health facilities were relevant to the assessment of protection needs, and whether the applicant's ties to Australia and the delay in applying for protection were factors that could be considered in the overall assessment.

The court affirmed the Tribunal's decision, finding that the applicant had not established that they belonged to a particular social group within the meaning of the *Migration Act*. The court reasoned that while the applicant's fear of harm was real, the group defined by their past actions as a criminal informant and the subsequent revelation of their identity did not meet the criteria for a particular social group, which requires a characteristic that is immutable or fundamental to identity, or a characteristic that is so integral to a person's identity that they should not be required to change it. The court also found that the evidence did not establish that the applicant would be unable to obtain adequate protection in Estonia, nor that the mental health facilities were so deficient as to amount to persecution. The court further held that the applicant's ties to Australia and the delay in applying for protection did not override the assessment of the core protection claims.

The court ordered that the application for review be dismissed.