1513924 (Refugee)

This matter concerned an application for a Protection visa by a citizen of Nepal who had overstayed his student and subsequent bridging visas. The applicant lodged his protection visa application approximately four years after becoming an unlawful non-citizen, citing depression and fear of harm from a political ethnic group known as "Limbuwan" as reasons for not departing Australia. The Tribunal was required to determine whether it could be satisfied as to the truth of the applicant's claims and whether he met the criteria for a protection visa.

The legal issues before the Tribunal were whether the applicant was a person in respect of whom Australia had protection obligations under the *Refugee Convention 1951* (as amended), as defined by Article 1A(2), or whether he met the complementary protection criterion under section 36(2)(aa) of the *Migration Act 1958* (Cth). This involved assessing whether the applicant had a well-founded fear of persecution for a Convention reason, or whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia, he would suffer significant harm.

The Tribunal affirmed the delegate's decision not to grant the visa, primarily due to the applicant's failure to attend scheduled hearings and provide further evidence or clarification of his claims. The Tribunal noted that while the applicant had provided a statutory declaration detailing his alleged fear of the Limbuwan group and his involvement in an opposing group, his absence prevented the Tribunal from exploring or testing these claims. Applying the principles that the onus is on the applicant to supply the relevant facts and that a decision-maker is not required to make the applicant's case, the Tribunal was not satisfied as to the truth of the applicant's claims. Specifically, the Tribunal was not satisfied that the applicant had any political involvement in Nepal, that he or his colleagues were threatened by Limbuwans, or that he would face a real chance of serious or significant harm upon return to Nepal for any claimed or other reason. Consequently, the Tribunal was not satisfied that Australia had protection obligations towards the applicant under either the refugee or complementary protection criteria.