1818708 (Refugee)

This matter concerned an application for a protection visa by a citizen of Nepal. The applicant claimed to fear persecution upon return to Nepal due to his homosexuality, alleging he had been attacked by his partner's brother and that police were unable to protect him. He also asserted that he faced societal discrimination and that his partner had committed suicide. The decision under review affirmed the delegate's decision not to grant the visa.

The Tribunal was required to determine whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group, specifically gay men in Nepal, under section 36(2)(a) of the Migration Act 1958 (Cth). Alternatively, the Tribunal considered whether the applicant would suffer significant harm as a necessary and foreseeable consequence of removal from Australia, engaging the complementary protection criterion under section 36(2)(aa) of the Act.

In reaching its decision, the Tribunal considered relevant country information regarding the situation for gay people in Nepal, as well as policy guidelines and Department of Foreign Affairs and Trade assessments. The Tribunal noted that the applicant could return to Kathmandu, where he had lived his entire life with his parents, and that his mother was supportive of his sexual orientation. While acknowledging that the applicant might face some societal discrimination and negative attitudes, the Tribunal concluded that there was not a real chance or real risk of him suffering serious or significant harm in Nepal due to his identity as a gay man. Consequently, the Tribunal was not satisfied that Australia had protection obligations towards the applicant under either the refugee or complementary protection criteria.

The Tribunal affirmed the decision not to grant the applicant a protection visa.