1711460 (Refugee)

The Administrative Appeals Tribunal considered the protection visa applications of a woman and her de facto partner, both Indian nationals. The primary applicant claimed she had witnessed and reported organ trafficking at a hospital in India where she worked, leading to threats and intimidation. She sought protection in Australia on the basis of a well-founded fear of persecution.

The legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under section 36(2)(a) or (aa) of the Migration Act 1958, and if not, whether they were entitled to complementary protection. This involved determining if the primary applicant had a well-founded fear of persecution in India, or if either applicant faced a real risk of significant harm in a third country, specifically Nepal, which they could potentially access.

The Tribunal reasoned that while the applicants had a right to reside in Nepal under the Indo-Nepal Treaty and available administrative arrangements, they had not taken all possible steps to avail themselves of this right. Crucially, the Tribunal found no evidence that the applicants would face persecution or significant harm in Nepal, nor that Nepal would return them to India where they might face such harm. The Tribunal noted the lack of any reports of organ trafficking from the specific hospital mentioned by the applicant, and concluded that the applicants' personal circumstances and the general conditions in Nepal did not support a well-founded fear of persecution.

Consequently, the Tribunal affirmed the delegate's decision to refuse the grant of protection visas. The Tribunal was not satisfied that Australia had protection obligations in respect of either applicant, meaning they did not satisfy the criteria for a protection visa.