2319894 (Refugee)

This matter concerns an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant the applicant, a New Zealand citizen, a protection visa. The applicant arrived in Australia in 1999 and last entered in August 2004. He applied for a protection visa in November 2023, which was refused on the basis that he was not owed protection obligations. The applicant subsequently applied to the Tribunal for a review of this decision.

The central legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36 of the *Migration Act 1958* (Cth), specifically whether he was owed protection obligations under the 'refugee' criterion or on 'complementary protection' grounds. The applicant claimed fear of returning to New Zealand due to family conflict with gangs, the violent death of a relative, general fear following the Christchurch massacre, community animosity towards deportees, and concerns about his mental health and the unreliability of New Zealand authorities.

The Tribunal considered the applicant's claims in light of the evidence. It was noted that the applicant was a New Zealand citizen and that New Zealand was the receiving country for the assessment of his protection claims. The Tribunal applied the principles that if it makes an adverse finding on a material claim but cannot do so with confidence, it must proceed as if the claim might be true, while also acknowledging it is not required to accept all allegations uncritically or to have rebutting evidence before making a finding. The Tribunal found that the applicant's claims regarding gang violence and community clashes between different Pacific Islander communities in New Zealand were not substantiated to the required standard, and that the evidence did not establish a real chance of him being persecuted or suffering significant harm upon return to New Zealand.

The Tribunal affirmed the delegate's decision to refuse the protection visa.