1932468 (Refugee)

The applicant, a national of Nepal, sought review of the Department's decision to refuse him a protection visa. The applicant arrived in Australia in 2007 and applied for a protection visa in 2015. The Department refused the visa on the basis that the applicant had a right to enter and reside in India and had not availed himself of that right, thus possessing statutory effective protection in a third country. The applicant sought review of this decision before the Tribunal.

The primary legal issues before the Tribunal were whether the applicant qualified as a refugee under section 5H of the Migration Act 1958, and if not, whether Australia had protection obligations towards him under section 36(2)(aa) of the Act, concerning a real risk of significant harm upon removal to a receiving country. The applicant's claims for protection were based on past insurgency in Nepal, subsequent economic hardship exacerbated by an earthquake, and the perceived inability of Nepalese authorities to provide support to victims.

The Tribunal found that the applicant was a national of Nepal. It considered the applicant's claims in light of country information and relevant guidelines. The Tribunal concluded that the overall security situation throughout Nepal had dramatically improved, and that the applicant did not face a real chance of serious harm if returned. The Tribunal also noted the long period of unlawfulness and the delay in lodging the visa application. Consequently, the Tribunal determined that the applicant did not satisfy the criteria for a protection visa under section 36(2).

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