1611346 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant who claimed to be an Indian national seeking a protection visa. The delegate had refused the visa on the grounds that the applicant possessed a right to enter and reside in Nepal and had not taken all steps to avail himself of this right, thus concluding that Australia did not owe him protection obligations under the Migration Act 1958 (Cth) (the Act). The applicant's claims included fear of honour crimes and significant harm if returned to India due to domestic violence and threats from his brother.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36 of the Act. This involved determining if the applicant had a well-founded fear of persecution in India, or if he faced a real risk of significant harm if removed to Nepal, and whether he had taken all possible steps to avail himself of his right to enter and reside in Nepal. The Tribunal also considered the complementary protection criterion under section 36(2)(aa) and the exclusionary provisions in sections 36(5) and 36(5A) of the Act.

The Tribunal found that India was the country of reference for assessing the applicant's claims. It acknowledged the applicant's claims of domestic violence and threats from his brother but ultimately did not accept the underlying premise of these claims, finding that the applicant had not established a well-founded fear of persecution in India. Crucially, the Tribunal determined that the applicant had a right to enter and reside in Nepal under the Indo-Nepal Treaty of Peace and Friendship and that he had not taken all possible steps to avail himself of this right. The Tribunal also found no substantial grounds to believe that, as a necessary and foreseeable consequence of availing himself of this right, the applicant would suffer significant harm in Nepal. The Tribunal noted that the applicant did not claim he would be refouled from Nepal to India, and the evidence did not suggest this would occur.

Consequently, the Tribunal affirmed the delegate's decision to refuse the grant of a protection visa. It concluded that Australia did not have protection obligations in respect of the applicant as he did not satisfy the criteria under section 36 of the Act, and it was therefore unnecessary to undertake further assessment of the substantive merits of his protection claim.