1816778 (Refugee)

This matter concerned a Protection visa application lodged by Mr A and Ms A, citizens of Nepal. The applicants claimed they faced danger in Nepal due to their inter-caste marriage, which occurred without Mr A's father's approval. They asserted that their lives were at risk from their parents, relatives, and the wider community, alleging threats of violence and physical harm. The delegate refused to grant the visa, finding the applicants' claims lacked credibility and that there was no real risk of significant harm if they were returned to Nepal. The delegate also considered that section 36(3) of the Act applied, as the applicants had not taken all possible steps to avail themselves of a right to reside in India. The applicants sought review of this decision by the Tribunal.

The Tribunal was required to determine whether the applicants met the criteria for a Protection visa, specifically considering claims related to complementary protection under section 36(2)(aa) and member of the same family unit criteria under subsections 36(2)(b) and (c). This was in light of the Federal Court's approach in *AMA15 v MIBP* [2015] FCA 1424, which held that where an applicant's previous visa refusal was based on the refugee criterion (s.36(2)(a)), the Tribunal should only consider claims under the complementary protection criterion and family unit criteria. The Tribunal also had to assess the credibility of the applicants' claims, including allegations of threats, violence, and the inability of authorities to provide protection.

The Tribunal affirmed the delegate's decision not to grant the Protection visas. The Tribunal found that the applicants had not satisfied the criteria for a Protection visa. While acknowledging the applicants' claims regarding their inter-caste marriage and the alleged fear of harm, the Tribunal did not find them to be credible or to establish a well-founded fear of persecution. The Tribunal noted that the applicants had not demonstrated that they met the requirements for complementary protection or as members of the same family unit as a person holding a protection visa. Consequently, the Tribunal concluded that Australia did not have protection obligations towards the applicants under the relevant provisions of the Act.