1602494 (Refugee)

This matter concerned an application for review of a decision not to grant protection visas to two applicants, nationals of India. The applicants arrived in Australia on temporary visas in May 2015 and subsequently became unlawful non-citizens. They applied for Bridging visas on departure grounds, which were refused, and then applied for Protection visas. The first applicant stated he feared returning to India because his friend's wife's relatives wanted to harm him, alleging he was a witness to a murder related to a village marriage custom, though the word "murder" was altered to "marriage" on the application. He also claimed that a relative of the girl involved was a senior official, which prevented him from seeking police assistance.

The Tribunal was required to determine whether Australia owed protection obligations to the applicants under sections 26(2)(a) and (aa) of the Act, considering both refugee and complementary protection criteria. This involved assessing the credibility of the applicant's claims of fear of harm in India, the relevance of country information regarding a senior official from the applicant's home village, and whether the alleged harm constituted significant harm as defined by the Act. The Tribunal also considered the mandatory requirements of Ministerial Direction No. 56, including relevant policy guidelines and country information assessments.

The Tribunal concluded that Australia did not have protection obligations towards the applicants in respect of India. It found that the applicants were nationals of India and assessed their claims against that country. While acknowledging the applicants might have a right to enter and reside in Nepal, this was not determinative as the primary assessment was against India. The Tribunal was not satisfied that the applicants met the criteria for a protection visa under either section 36(2)(a) or (aa) of the Act, finding that the evidence did not establish a real risk of significant harm upon return to India.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicants protection visas. As the applicants failed to satisfy the criteria under sections 36(2)(a) or (aa), they were also unable to satisfy the criteria under sections 36(2)(b) or (c), and therefore could not be granted the visa.