1416486 (Refugee)

The applicant, a citizen of Nepal, sought a protection visa. The dispute concerned whether he held a well-founded fear of persecution for reasons of membership of a particular social group, specifically being homosexual, and facing forced marriage, and whether he could access state protection in Nepal. The decision was made by Christine Cody.

The court was required to determine if the applicant's fear of harm in Nepal, stemming from his homosexuality and the potential for forced marriage, constituted a well-founded fear of persecution. This involved assessing whether homosexual individuals constituted a particular social group for the purposes of the *Migration Act 1958* (Cth), and whether the threats of harm, including family disapproval, social ostracism, and potential violence from groups like the Maoists, were sufficiently serious to amount to persecution. The court also had to consider the availability and effectiveness of state protection in Nepal for individuals in the applicant's situation.

The court considered the applicant's account of his experiences in Nepal, including his homosexual relationship, the discovery by his father, the reactions of his and his friend's families, and accusations by Maoists. It noted the applicant's delay in lodging his protection visa application after arriving in Australia. The court found that the applicant's sexual orientation placed him within a particular social group. It also considered the evidence regarding the conservative nature of Nepalese society and authorities concerning homosexuality, and the potential for harm, including forced marriage, if returned. The court affirmed the decision under review.