2211511 (Refugee)

The applicant sought review of a decision by the Administrative Appeals Tribunal (AAT) to affirm the refusal of a protection visa. The applicant, who had a history of involvement in student politics in Nepal, claimed to fear persecution upon return to his home country. The AAT considered the applicant's significant delay in lodging his protection visa application, his return visit to Nepal after the alleged events giving rise to his fear, and his criminal convictions in Australia for serious sexual offences against children, which led to the cancellation of his student visa.

The central legal issues before the court were whether the applicant had established a well-founded fear of persecution or a real risk of suffering significant harm if returned to Nepal, as required by sections 36(2)(a) and 36(2)(aa) of the Migration Act 1958. This involved assessing the applicant's credibility, the genuineness of his claimed fear in light of his conduct, and whether any such fear was a necessary and foreseeable consequence of his removal. The court also considered the applicant's explanation for his delay and his return visit to Nepal, which he stated was to assist his sister, and his assertion that he believed he could obtain permanent residency in Australia, thus negating the necessity of a protection visa application.

The court found that the applicant's conduct, including his substantial delay in applying for protection and his return visit to Nepal after the alleged events, was inconsistent with someone genuinely fearing persecution. The applicant repeatedly explained his delay by stating he did not see the necessity of applying for a protection visa until his student visa was cancelled, and that he was confident of obtaining permanent residency. He also stated he had "nothing to go back to in Nepal." The court noted that the applicant did not satisfy the criteria under section 36(2) of the Migration Act 1958.

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