2317851 (Refugee)

The Administrative Appeals Tribunal considered the case of a citizen of Kiribati who sought a protection visa for Australia. The applicant claimed to have suffered physical and emotional harm from a former partner and asserted that returning to Kiribati would result in death due to this harm and her current medical condition. She also contended that domestic violence was prevalent in her home country, reporting such issues was culturally taboo, and reconciliation was encouraged over prosecution, with limited police and community resources available.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2) of the *Migration Act 1958* (Cth), specifically whether she was a refugee due to a well-founded fear of persecution, or alternatively, whether she was entitled to complementary protection under section 36(2)(aa) due to a real risk of significant harm if removed from Australia. The Tribunal also had to consider the applicant's responsibility to provide sufficient evidence to establish her claims, as outlined in section 5AAA of the Act.

The Tribunal reasoned that the onus was on the applicant to establish the necessary facts to satisfy the criteria for a protection visa, citing established case law that a decision-maker is not required to make the applicant's case for them or uncritically accept all allegations. The Tribunal noted the applicant's multiple entries and departures from Australia and the delay in lodging her protection visa application. While acknowledging the applicant's medical reports detailing neurosurgery and a pre-existing condition, the Tribunal found that the applicant had not provided sufficient detail or evidence to demonstrate that she would face persecution or significant harm upon return to Kiribati, nor had she established that effective protection measures were unavailable. The Tribunal concluded that the applicant had not satisfied the requirements of section 36(2) of the Act.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.