SZVSB v Minister for Immigration

This matter concerned an application by SZVSB (the Applicant) for judicial review of a decision by the Administrative Appeals Tribunal. The Applicant had previously applied for a Protection visa, which was refused, and had also sought ministerial intervention under section 417 of the *Migration Act 1958* (Cth), which was also declined. The Applicant subsequently lodged a second application for a Protection visa. A delegate of the Minister refused this second application, finding that the Applicant did not meet the criteria for protection under either section 36(2)(a) (refugee status) or section 36(2)(aa) (complementary protection) of the *Migration Act*. The Tribunal, on review, affirmed the delegate's decision, but held that it was only entitled to consider the Applicant's claims under the complementary protection provisions due to the operation of section 48A of the *Migration Act*.

The primary legal issue before the court was whether the Tribunal erred in law by limiting its review to only the complementary protection grounds under section 36(2)(aa) of the *Migration Act*, to the exclusion of the refugee protection grounds under section 36(2)(a). This question arose because the Applicant's first Protection visa application had been refused, and section 48A of the *Migration Act* generally prevents a person whose visa application has been refused from applying for most other visas while remaining in Australia.

The court was required to determine the correct interpretation and application of section 48A in the context of a second Protection visa application, particularly in light of the decision in *AMA15 v Minister for Immigration* [2015] FCA 1424, which confirmed that the Tribunal was correct to consider only complementary protection claims in such circumstances. The Tribunal's decision was based on its assessment of the Applicant's credibility, finding significant inconsistencies between the claims made in his first and second Protection visa applications. The Tribunal was not satisfied that there were substantial grounds for believing that the Applicant would suffer significant harm if returned to China, and this adverse credibility finding was central to its decision.

The Tribunal affirmed the delegate's decision to refuse the Second Protection visa. It found that the Applicant had not established that he was owed protection obligations under section 36(2)(aa) of the *Migration Act*, primarily due to adverse credibility findings. The Tribunal concluded that the Applicant had not provided credible reasons for fearing harm upon return to China, noting significant discrepancies in his stated grounds for persecution between his earlier and later visa applications.