1934653 (Refugee)

This matter concerned an application for a Protection visa by a woman from Nepal. The applicant’s claims for protection stemmed from two main sources: her marriage to a man of a higher caste, which led to pressure from his family and eventual separation, and a past sexual assault by a group of men from her village. The applicant contended that upon return to Nepal, she would face harm from her former husband and his family, and also from the men who had sexually assaulted her, who she claimed continued to harbour resentment. The decision was made by Deputy President Denis Dragovic of the Tribunal.

The central legal issues before the Tribunal were whether the applicant faced a real chance of serious harm or a real risk of significant harm in Nepal, as a necessary and foreseeable consequence of removal. This required the Tribunal to assess the credibility of the applicant's claims regarding her husband's potential actions and the ongoing threat posed by the men who had assaulted her, considering the passage of time and the circumstances in her village. The Tribunal also considered the cumulative effect of these factors on the applicant's safety and well-being.

The Tribunal accepted the applicant's narration of events but found that neither her former husband nor the men who had sexually assaulted her posed a real chance of serious or significant harm. Regarding the husband, the Tribunal noted that despite past threats, he had not resorted to violence and that less severe actions were available to him which he had not pursued. Concerning the sexual assault, the Tribunal found that while social ostracisation and verbal taunting might occur, the motivations for the men to inflict serious harm were outweighed by reasons they would not act violently, particularly given the time elapsed and the potential consequences for them. The Tribunal concluded that any prejudice or abuse the applicant might face from the community, when considered cumulatively with the other factors, did not amount to serious or significant harm.

Consequently, the Tribunal was not satisfied that the applicant met the criteria for a Protection visa under s 36(2)(a) or s 36(2)(aa) of the Act. The Tribunal affirmed the decision not to grant the applicant a Protection visa.