1609722 (Refugee)

The applicant, Master A, a young Australian-born Nepali citizen, sought review of a delegate's decision to refuse him a protection visa. The applicant's parents, Mr. B and Ms. C, also Nepalese citizens, had previously applied for protection visas for themselves and their daughter, Miss D, which were refused and the refusal upheld by the Refugee Review Tribunal. The applicant was born after this refusal, and his subsequent protection visa application was deemed invalid due to the family's prior refusal and the inability to make a further onshore application without ministerial intervention under s.48B of the Migration Act 1958. Consequently, only the applicant lodged a valid protection visa application, which was refused by a delegate. The applicant then applied to the Tribunal for a review of this refusal.

The core legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under s.36(2) of the Migration Act 1958, specifically whether he was a refugee or faced a real risk of significant harm if returned to Nepal. The applicant's claims centred on the opposition of his father's family and Nepalese society to his parents' inter-caste marriage, asserting that this opposition would lead to fear and an inability to survive in Nepal. He also argued that due to his father's family being located throughout Nepal, relocation within the country would not ensure safety, and that the destruction of his mother's family home in Kathmandu by an earthquake left them with no place to live.

The Tribunal affirmed the delegate's decision to refuse the protection visa. It found that the applicant did not satisfy the criteria under s.36(2) of the Act. The Tribunal considered the applicant's claims regarding the societal opposition to inter-caste marriages in Nepal and the alleged lack of safety due to caste and religious unrest. However, it did not find that these circumstances met the threshold for a well-founded fear of persecution or a real risk of significant harm as defined by the Act. The Tribunal noted that the applicant had not provided evidence to suggest he would not be able to access protection measures within Nepal, nor had he demonstrated that any risk he might face was not a general risk faced by the population at large.

Ultimately, the Tribunal concluded that the applicant did not satisfy the requirements for a protection visa, and therefore affirmed the decision of the delegate. The applicant was not found to be a refugee, nor was it established that he faced a real risk of significant harm upon removal from Australia. The Tribunal also found that the applicant did not satisfy the criteria under s.36(2)(b) or (c) as a member of the same family unit as a person who held a protection visa.