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Tribunal: Member C Smolicz

The applicant applied to the AAT for review of a decision made by the Department of Home Affairs (the Department) to refuse to grant her a protection visa.

Australia has an obligation under the Migration Act 1958 to protect individuals who are found to be a refugee or to whom other ‘complementary protection’ grounds apply.[1] The ‘refugee criterion’ broadly requires applicants to have a ‘well-founded fear of persecution’ should they return to the country of their nationality.[2] The ‘complementary protection’ grounds broadly require that there is ‘a real risk of significant harm’ to the applicant should they be removed from Australia and sent to a receiving country.[3]

The applicant was a woman from Bulgaria. Her Australian citizen husband passed away and she was left to care for her two children. In her application, the applicant claimed that she could not return to Bulgaria because she would face discrimination as a widow and unaccompanied female. She stated that she feared that she would not be able to support herself. She claimed Bulgaria does not have an effective police force and that she would not be able to obtain state protection in Bulgaria.

The applicant attended a Department protection interview however declined to give oral evidence at the AAT hearing. The applicant admitted there was no reason she could not return to Bulgaria and she wanted to remain in Australia so she could be with her two Australian children. The applicant conceded she only applied for the protection visa so that it could be refused and she could then apply for ministerial intervention.

The AAT found the applicant did not claim to fear serious or significant harm in Bulgaria and admitted that she applied for the protection visa so that she can remain in Australia with her children. The decision under review was affirmed.

The AAT noted that the Minister has an entirely discretionary power to intervene in cases to grant a visa where the outcome of a review application is unsuccessful.[4]

The AAT noted it would be up to the applicant and her agent to make a request for intervention directly to the Minister if they believed that the applicant’s case met the ministerial intervention guidelines.

Read the full decision on AustLII.


[1] Section 36(2) of the Migration Act 1958

[2] Section 36(2)(a) and Section 5H  of the Migration Act 1958

[3] Section 36(2)(aa) and Section 36(2A) of the Migration Act 1958

[4] Section 417 of the Migration Act 1958