1604552 (Refugee)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Protection visa. The applicant, who had travelled to Australia on multiple occasions since 1998, applied for a Protection XA-PV visa onshore in October 2014. The core of the dispute revolved around whether the applicant's diagnosis of Alzheimer's disease would expose her to a real chance of serious or significant harm upon return to Nepal, thereby engaging Australia's protection obligations.

The Tribunal was required to determine if the applicant met the criteria for a protection visa, specifically under section 36(2)(a) of the Migration Act 1958 (Cth) (the Act) concerning the Refugee Convention, or under the complementary protection criterion in section 36(2)(aa) of the Act. The latter requires the Minister to be satisfied that there is a real risk of significant harm as a necessary and foreseeable consequence of the applicant's removal from Australia. The Tribunal also had regard to Ministerial Direction No. 56 and relevant country information from the Department of Foreign Affairs and Trade.

The Tribunal reasoned that while the applicant's Alzheimer's disease was a significant factor, it did not, on its own, establish a real chance of serious or significant harm upon return to Nepal to satisfy the criteria for a protection visa. Despite affirming the decision not to grant the visa, the Tribunal recommended the matter for Ministerial intervention under section 417 of the Act, suggesting that exceptional circumstances might warrant further consideration. The Tribunal ultimately affirmed the decision under review.