1419804 (Refugee)

This matter concerned an application for a Protection visa by a man from Nepal. The applicant claimed he feared persecution by Maoists in his home country, alleging he had been forced to assist them in the past and had been threatened for refusing to join their party. He further contended that upon his removal from Australia, there was a real risk he would suffer significant harm. The delegate of the Minister refused to grant the visa, and the Administrative Appeals Tribunal affirmed that decision.

The primary legal issue before the court was whether the applicant had established a well-founded fear of persecution for a Convention reason, as defined by Article 1A(2) of the 1951 Convention Relating to the Status of Refugees and as qualified by sections 91R and 91S of the Migration Act 1958 (Cth). This required determining if the applicant faced serious harm and systematic and discriminatory conduct, and whether such harm was either inflicted by the authorities or officially tolerated, or uncontrollable by them. A secondary issue was whether there were substantial grounds for believing that the applicant would suffer significant harm as a necessary and foreseeable consequence of his removal to Nepal.

The Tribunal found that the applicant had not established a well-founded fear of persecution for a Convention reason. While acknowledging the applicant's account of past encounters with Maoists and the general climate of fear in his village, the Tribunal concluded that the evidence did not demonstrate that the applicant would face persecution for a Convention reason upon return to Nepal. Specifically, it was not satisfied that the alleged threats or harm amounted to persecution as defined by the Convention, nor that the government of Nepal was unable or unwilling to protect him. Consequently, the Tribunal affirmed the delegate's decision to refuse the Protection visa.