2209523 (Refugee)

The applicant, a citizen of the Democratic Republic of Congo, sought a protection visa. Initially included as a secondary applicant in her guardian's visa application, she later sought to present her own claims after separating from her guardian. The dispute concerned whether she met the criteria for a protection visa, particularly in light of her personal circumstances and fears upon return to the Democratic Republic of Congo. The matter was heard by Melissa McAdam of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant qualified as a refugee under section 36(2)(a) of the *Migration Act 1958* (Cth) and, alternatively, whether she met the complementary protection criterion under section 36(2)(aa) of the Act. This involved determining if she had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and if there was a real risk of significant harm upon removal to the Democratic Republic of Congo. The Tribunal also considered the definition of "significant harm" and the availability of effective protection measures in the receiving country.

The Tribunal found that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(a) of the *Migration Act*. This conclusion was based on the applicant's detailed statement outlining her estrangement from her family, her lack of support networks in Australia and the Democratic Republic of Congo, and her specific fears of gender-based violence, rape, and lack of protection from authorities in her home country. The Tribunal considered the applicant's status as a young female with no family support, the risk of sexual and physical violence, and the lack of state resources for orphans in the Democratic Republic of Congo.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act*.