1414536 (Refugee)

This matter concerned an application for a Protection visa by a woman who claimed to be a victim of family violence and feared significant harm if returned to Nepal. The applicant, a convert to Christianity from Hinduism, alleged that her husband had become abusive after her conversion, culminating in threats and physical violence. She expressed a fear of being ostracised, targeted by Hindu extremists, and subjected to sex trafficking in Nepal due to her status as a separated woman without male protection. She also indicated that India would not be a safe destination. The decision was made by Mara Moustafine, a member of the Tribunal.

The primary legal issue before the Tribunal was whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia to Nepal, there was a real risk that she would suffer significant harm. This required an assessment of whether the applicant met the criteria for a Protection visa under section 36(2) of the Migration Act 1958, specifically the complementary protection criterion in paragraph 36(2)(aa). The Tribunal also considered the definitions of "significant harm" and relevant Ministerial Directions and policy guidelines.

The Tribunal reasoned that the applicant did not satisfy the criterion in section 36(2) of the Act. While the applicant detailed her fears and experiences of alleged family violence and the potential dangers she might face in Nepal, the decision explicitly states that there was no suggestion that she satisfied section 36(2) on the basis of being a family member of a person who already held a protection visa. This indicates that the Tribunal focused on the applicant's individual claim for protection and found it did not meet the required threshold.

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