1504361 (Refugee)

The Administrative Appeals Tribunal (AAT) considered an application for a protection visa made by an individual from Nepal. The applicant sought protection in Australia due to a well-founded fear of persecution. The dispute centred on whether the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth), specifically concerning the definition of a refugee or grounds for complementary protection.

The primary legal issue before the Tribunal was whether the applicant qualified as a refugee under Article 1A(2) of the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol. This required determining if the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and was unable or unwilling to avail themselves of the protection of Nepal. Alternatively, the Tribunal considered whether the applicant met the complementary protection criterion, which involves a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia.

The Tribunal was required to assess the applicant's claims in light of the criteria set out in s.36 of the Act and Schedule 2 of the Regulations, and to consider relevant policy guidelines and country information. The applicant's case involved an inter-caste relationship, and the potential for discrimination, violence, or death arising from this relationship, despite the wider family and society being unaware of it. However, the Tribunal found that the applicant did not satisfy the criteria for a protection visa, nor did it appear the applicant was a family member of someone who did.

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