1501876 (Refugee)

This matter concerned an application for a protection visa by an Indian citizen who arrived in Australia in 2008. The applicant's student visa was cancelled in 2011, and she subsequently remained in Australia unlawfully for a period before being granted bridging visas. Her onshore partner visa application was refused in 2013 due to Schedule 3 criteria, and a subsequent application for ministerial intervention was deemed inappropriate to consider. The applicant then applied for a protection visa in June 2014, citing fears of harm in India stemming from her father's murder and the subsequent threats and harassment she and her siblings allegedly received from the perpetrators and their family. The delegate refused the protection visa application, finding that the applicant had access to effective state protection in Nepal and had not taken all possible steps to avail herself of the right to enter and reside there, thus Australia had no protection obligations under s.36(3) of the Act. The applicant sought review of this decision before the Administrative Appeals Tribunal (AAT), following transitional provisions of the Tribunals Amalgamation Act (Cth) 2015.

The primary legal issue before the Tribunal was whether Australia owed protection obligations to the applicant under the Migration Act 1958 (Cth). This required the Tribunal to consider, firstly, whether the applicant, as a citizen of India, had a present right to enter and reside in Nepal. If such a right existed, the Tribunal then had to determine whether the applicant had taken all possible steps to avail herself of that right, as mandated by s.36(3) of the Act. The Tribunal was also required to consider relevant policy guidelines and country information assessments prepared by government departments, as per Ministerial Direction No. 56.

The Tribunal reasoned that the delegate's decision correctly identified the core legal question regarding the applicant's right to enter and reside in Nepal and the subsequent application of s.36(3) of the Act. The Tribunal noted the applicant's claims of persecution in India, including threats from her father's killers and a lack of faith in the Indian police. However, the delegate had made findings regarding the applicant's access to effective state protection in Nepal through a bilateral residency treaty and her present right to enter and reside there. The Tribunal indicated it would examine these findings and the applicant's actions in relation to availing herself of any such right. The Tribunal's ultimate determination would hinge on whether the applicant had exhausted all avenues to seek protection in Nepal, which would then preclude Australia from having protection obligations.