1409804 (Refugee)

[2015] AATA 3278

1409804 (Refugee) [2015] AATA 3278 (5 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1409804

COUNTRY OF REFERENCE:                  Nepal

MEMBER:David McCulloch

DATE:5 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 05 August 2015 at 8:33am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Nepal, applied for the visa [in] October 2013 and the delegate refused to grant the visa [in] May 2014.

3. The applicant appeared before the Tribunal on 15 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

9. The issue in this case is the credibility of the applicant and whether, on his accepted claims, he fulfils the criteria for protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background and complementary protection criterion only

10. The applicant arrived in Australia [in] April 2009 using a fraudulently obtained passport.  A Protection visa application was lodged [in] April 2010 which was refused by the Department [in] August 2010. That decision was affirmed by a decision of the Tribunal on 18 November 2010. A review of that decision by the Federal Court upheld the Tribunal’s decision in a judgement dated [in] March 2011. An appeal of that decision to the Full Federal Court, upheld the decision of the Federal Court [in] August 2011. The current application for a Protection visa was lodged [in] October 2013.

11. The current application is allowed as a result of the Federal Court decision of SZGIZ v MIAC (2013) 212 FCR 235, dated 3 July 2013. This allows a further protection visa application to be made before 28 May 2014 under the complementary protection criterion in a situation whereby the person’s prior protection visa application was made and refused prior to the commencement of the Complementary Protection provisions on 24 March 2012. This means that the Refugee Convention aspect of the applicant’s claims has been determined and the matter before the Tribunal relates only to complementary protection criterion (section 36(2)(aa) of the Act).

    Claims

12. The forms provided by the applicant to the Department with respect to the current Protection visa application indicates that the applicant is a member of the Rastriya Prajatantra Party (RPP) and supports the monarchy. It claims that he became an enemy of the Maoists as a result of this political affiliation and was targeted and harmed by Maoists.  The applicant fears future harm as a result. The applicant indicates that he cannot relocate or obtain state protection. It is indicated that recent country information indicates that Maoists want to recommence the People’s War and that the applicant fears harm as a result due to his political opinion.

13. The applicant’s adviser, in a covering letter to the application, indicated that further claims would be forthcoming. No further claims were provided.

14. The decision of the Tribunal in respect of the original 2010 Protection visa application provides an outline of the evidence considered by the delegate of the Minister. That outline was as follows:

    The applicant arrived in Australia [in] April 2009 on a passport in [another name and date of birth]. It contained a valid Vocational Education and Training Sector visa (TU-572). He submitted this and a passport in the name [applicant name] when he lodged the Protection visa application [in] April 2010. After having each passport examined by the DIA Document Examination Unit, the Delegate was satisfied that the applicant's identity was the latter name.

    The applicant claimed to be [age] and born in [Nepal]. He was married and had [children]. He had completed [stated] years of education in Nepal and had been a farmer.

    He claimed to have joined the Rastriya Prajatantra Party (RPP) [in] January 2006, because he supported the monarchy, because he was a Hindu and because he believed the RPP offered protection. He was the only member of his family involved with the RPP.

    He was an ordinary member of the RPP for two years, attending meetings. After this period he became an active member.

    In writing he claimed that six of his friends had been killed in October 2006 because of their RPP membership, and that after this he was threatened by Maoists. During his interview with the Delegate he added that he was involved in the 2008 election campaign, secretly distributing brochures to elderly people in his village and going to their homes to encourage them to vote for the RPP.

    He claimed to have been harassed and threatened by Maoists because of his RPP membership.

    In March 2009 (Falgun 2065) a group of Maoists threatened him at his home, took him into the jungle and told him that he would be killed if he did not join them. To protect himself he agreed to join them but asked for a month delay. (During the DIAC interview he stated that this was the first occasion on which he had had any contact with the Maoists. He also said that he had been threatened by them and told to join them on 2-3 occasions, but that after a while they stopped coming).

    After this incident he [reported] the incident to the police, who were unable to provide any assistance or protection because his village was too remote and dangerous.

    The applicant then moved to Kathmandu and stayed with an uncle who arranged his travel to Australia.

    In that period he did not speak to his wife, only doing so after he arrived in Australia. She told him that a week after he left the village, Maoists came to their home asking for him. She had told them she did not know his whereabouts. They left. The applicant told the DIAC this was the only occasion on which the Maoists had come to find him up to the time of the DIAC interview.

    During the DIAC interview he claimed that his cousin was killed by Maoists because of her RPP involvement.

    During the DIAC interview he was questioned to ascertain his level of familiarity with the RPP. For example he stated that its three ideological pillars were "religion, protection and development", that it was formed in 1960 (Nepal calendar year 2007). He also said that the RPP had never merged with other parties, or had split.

    As to why the applicant had waited one year to lodge the Protection visa application in Australia, he said that he did not speak English or know what to do. His cousin had helped him.

    The applicant submitted a number of supporting documents, which he told the Delegate he had received by courier from his uncle in Nepal two weeks before the interview. He claimed that a document headed "Active Membership Identity Card" was issued [in] January 2006 (although the translation indicated that it was issued [in] December 2008).

    He also stated that he had signed it in Nepalese (although the Delegate considered that the signature on it differed from that of the applicant).

    He also submitted a receipt, which he claimed had been issued at the same time as the above document. However the translation indicated that it was issued [in] January 2006.

    He also submitted a letter which he claimed had been obtained by his uncle in Nepal. It was signed [with a stated name].

15. The latter document on the letterhead of the RPP is dated [in] May 2010 and indicates that the applicant has been a member of the RPP since [date] January 2006 and has been actively helping the party from February 2008 until March 2009.

    Independent information

    Background to RPP and other monarchist parties in Nepal

16. An undated document on the RPP website indicates that the party was formed in 1990 and its ideology is based on nationalism, democracy and liberalism.[1] A monarchist party, the RPP won 20 seats in the 1994 election and joined the Nepali Congress-led government in September 1995. The governing coalition fell in March 1997, and was replaced for less than seven months by a coalition led by Chand as prime minister, which in turn was replaced by a coalition in which Thapa was prime minister. Chand and nine others were expelled from the RPP in January 1998 for threatening to support a no-confidence vote against Prime Minister Thapa. Chand formed RPP (Chand) which did not gain any seats at the May 1999 election, while the RPP won 11 seats. The two groups reunified in 2000, and in October 2002, Chand was re-appointed prime minister by the King. He resigned in May 2003 and was replaced by Thapa, which led to further factionalism. Thapa resigned in May 2004, and in March 2005, formed the Rastriya Janshakti Party (RJP). In January 2006, the RPP’s president, P S Rana, ousted ten members of the RPP’s central committee, who subsequently formed the Rastriya Prajatantra Party (Nepal) – RPP(N). In the April 2008 Constituent Assembly election, the RPP won eight seats, while the RPP(N) won four seats and the RJP three seats.[2]

    [1] Rastriya Prajatantra Party n.d., About Us – Rastriya Prajatantra Party (RPP) < Accessed 17 September 2012

    [2] ‘Nepal’ in Lansdorf, T (ed) 2012, Political Handbook of the World 2012, CQ Press, Washington DC, pp. 1011-1021, at pp. 1018-1020

17. According to the August 2012 ICG report, the conservative parties, which were close to the monarchy, ‘have been of marginal importance since 2008, after Nepal went from being a Hindu republic to a secular republic.’ Of these parties, only the RPP(N) “has a coherent political platform. It is clearly monarchist, rather than only royalist, and wants a referendum on republicanism, secularism and federalism.”[3] The ICG report also notes that the RPP and RJP both ‘accept that Nepal should remain a republic, but ‘are unclear about what they stand for.’[4]

    Recent Maoist or other violence against RPP members or supporters of monarchist parties

    [3] International Crisis Group 2012, Nepal’s Constitution (II): The Expanding Political Matrix, Asia Report N°234, 27 August, p. 21

    [4] International Crisis Group 2012, Nepal’s Constitution (II): The Expanding Political Matrix, Asia Report N°234, 27 August, p. 22

18. The Tribunal made a request of the Country of Origin Information Section of the Department of Immigration and Border Protection to research information about political attacks by Maoists on members or supporters of royalist political parties in Nepal since 2011. The following information was obtained.

19. Two reports of Maoist violence against pro-monarchy supporters in 2011 were located. No further reports of violence perpetrated by Maoists or others against conservative pro-monarchy supporters were located from 2011 to date.

20. Maoist violence periodically continued following the signing of the Comprehensive Peace Agreement in 2006. Much of this violence was perpetrated by underground and splinter faction Maoists groups and the Unified Communist Party of Nepal (Maoist) (UCPN-M) until 2012. Intra-party violence was noted in 2011 amongst Maoists.[5] In 2012, the UCPN-M was removed from the United States list of world-wide terrorist organisations. ^[6]

    [5] South Asia Terrorism Portal 2012, Nepal Assessment 2012, 9 January, para.10-13 < Accessed 10 January 201

    [6] South Asia Terrorism Portal 2013, Nepal Assessment 2013, 20 January, para.7 < Accessed 29 January 2013

21. Two incidents of Maoists violence against pro-monarchists in 2011 were located. On 26 April 2011, ‘[a]t least 14 RPP activists were injured in a clash with the UCPN-M cadres at Madi in Chitwan District. According to eye witnesses, the clash ensued after the Maoist cadres suddenly attacked the RPP activists while they were attending a party workers’ meeting at Madi.’[7] On 1 November 2011, ‘[a] cadre of Rastriya Prajatantra Party (RPP), Pemba Lama of Bhotang VDC-1, was injured when two local UCPN-M cadres – Raju Tamang and Mangale Tamang – attacked Lama with Khukuris on the charge of having different political belief.’[8]

    [7] South Asia Terrorism Portal 2011, Incidents involving Communist Party of Nepal-Maoist 2011, 30 December < Accessed 12 January 2012

    [8] South Asia Terrorism Portal 2011, Incidents involving Communist Party of Nepal-Maoist 2011, 30 December < Accessed 12 January 2012

22. According to the South Asia Terrorism Portal’s Nepal Assessment 2015, no Maoist insurgency related civilian deaths were record during 2014:

    The environment of peace that had been established in Nepal in 2013 survived, despite challenges, through 2014, with not a single insurgency-related fatality on record. Significantly, since March 2000, when the South Asia Terrorism Portal (SATP) database commenced compiling data on insurgency-related fatalities in Nepal, it was in 2013 that the Himalayan Nation did not record a single insurgency-related fatality during the course of a year, for the first time, and remained completely free of insurgency-related violence. At its peak in 2002, the insurgency saw 4,896 persons, including 3,992 Maoists, 666 Security Force (SF) personnel and 238 civilians, killed in a single year.[9]

    [9] South Asia Terrorism Portal 2015, Nepal Assessment 2015, para.1 < Accessed 23 March 2015

    Hearing, credibility, findings and assessment

23. In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where is was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’.

24. When the Tribunal asked the applicant in the hearing if there were any difficulties in him giving evidence, he said that he is distracted because of the earthquake in Nepal. He indicated that his home in his village was destroyed. He said that his wife and [children] are safe, but they have had to [relocate].

25. The Tribunal has significant credibility issues with substantive aspects of the applicant’s claims.

26. First, there have been very significant inconsistencies in the applicant’s claims as to which political parties he has been involved in, and when. As the independent information indicates, the RPP and the RPP-N are two different political parties, with the latter splitting from the former in January 2006.

27. As the decision of the Tribunal with respect to the first application records, the applicant, up until the hearing of that application by the Tribunal, had maintained that he was a member of the RPP, having joined in January 2006. The decision records that during the hearing, when the applicant was asked questions about the leadership of the RPP, which he did not answer correctly, he indicated that he was in fact a member of the RPP-N not the RPP. He said that he had been a member of the RPP-N since 2006.

28. In the Tribunal hearing with respect to the current application, the applicant said, for the first time, that he was in fact a member of both the RPP, from February 2006 and then he joined the RPP-N in April 2008.

29. The Tribunal decision with respect to the first application also records evidence before the Department indicating the applicant saying that the RPP had never merged with other parties or had split.

30. The Tribunal put to the applicant this information contained in the previous Tribunal decision in accordance with the procedural requirements of s.424AA of the Act. The information is relevant because it shows a shift in the applicant’s evidence from saying he was a member of the RPP to then saying that he was in fact a member of the RPP-N.  This, in turn, is inconsistent with the applicant’s evidence to the Tribunal in the hearing with respect to the current application that the applicant was a member of both political parties. Further, the applicant’s prior evidence, as recorded in the previous Tribunal decision, indicates him stating that the RPP never merged or split. This is inconsistent with the applicant’s evidence before the current Tribunal that he had moved from the RPP to the RPP-N, the latter having split from the former. It might suggest that the applicant has subsequently researched issues relating to the RPP and the RPP-N, which he clearly was not aware of in earlier iterations of his evidence.

1. The consequence of the Tribunal relying on the information, which raise a myriad of inconsistencies in the applicant’s evidence as to which political parties he was involved in and when, could cause the Tribunal to question the applicant’s involvement in any royalist political party and question his credibility more generally.

2. The applicant responded in the hearing that there was some misinterpretation in the first interview and that it is not necessary to know each and every detail. The applicant indicated that he would also like additional time to respond in writing, which the Tribunal agreed to. In his written response, the applicant said that he became a member of the RPP in 2006. He says that in 2008 he joined the RPP-N as it became the only political party supporting the monarchy. The applicant said he was not consistent in his evidence due to forgetfulness and nervousness. He claims that he was unable to answer the correct leader of the RPP-N at the previous hearing because he was depressed.

3. The Tribunal does not accept that the extent of inconsistencies in the applicant’s evidence relating to which political party he was a member can be explained by forgetfulness or nervousness, or distraction due to the earthquake. In relation to the latter, the Tribunal notes that the original Tribunal hearing was postponed due to it being scheduled immediately after the earthquake.  The applicant’s family was safe when he gave evidence to the Tribunal. While the Tribunal accepts that there would be understandable upset by the applicant at the fact that his home was destroyed it does not consider that this is a factor that can explain the many inconsistencies and difficulties in both this and other aspects of his evidence.

4. The Tribunal considers that the numerous inconsistencies in his evidence are due to the applicant not being truthful in his evidence. This is confirmed by the documentary evidence provided by the applicant in support of his claims discussed in the second point, below.

5. Second, documentary evidence provided by the applicant in support of his claims with respect to the first Protection visa application do not support his current claims that he was a member of the RPP but then joined the RPP-N.

6. The membership card that the applicant provided to the Department as part of the first application is a membership card of the RPP, which was issued [in] December 2008. On the applicant’s evidence to the Tribunal with respect to the current application, the applicant says that he had in fact moved from the RPP to the RPP-N in April 2008. This further undermines the applicant’s credibility relating to his involvement in royalist parties.

7. The letter that the applicant has provided supposedly from the RPP in 2010 attesting that the applicant has been a member since 2006 and was actively involved from February 2008 until March 2009 is not consistent with the applicant’s claim in the current Tribunal hearing that he joined the RPP-N in April 2008.

8. Third, the applicant has given inconsistent evidence relating to what happened when he was contacted by Maoists in March 2009. The decision of the Tribunal with respect to the first application records the applicant as providing evidence that Maoists threatened him at his home and took him into the jungle and told him that he would be killed if he did not join them. In questioning on this incident in the Tribunal hearing with respect to the current application, the applicant said that the Maoists came to his home and took him to just outside his home to an open area. There is an inconsistency with the applicant’s earlier claim that he was taken into the jungle rather than an open area adjacent to his home. The information contained in the previous Tribunal decision was put to the applicant in accordance with the procedural requirements of s.424AA the Act.

9. The applicant indicated that he would like additional time to respond in writing which the Tribunal agreed to. The applicant responded in writing.  He indicated that Maoists came to his home at midnight and he was taken out of the house and was kept in the yard and nobody was allowed to speak. The Maoists asked him to disown his membership of the RPP-N and they asked him to join them, threatening that they would murder him if he refused to obey. The applicant says it is also true that he was taken to a jungle by a group of Maoists and they threatened that they would kill him if he refused to support them or give up supporting the monarchy.

10. Despite this explanation, the applicant has referred to one key incident that occurred in March 2009, and has given different accounts as to what happened on this occasion. Whilst the applicant had previously mentioned as part of his first Protection visa application that there were other occasions on which there were encounters with Maoists, there remains nevertheless an inconsistency in what the applicant claims happened in March 2009. This is a more minor concern with the applicant’s evidence that buttresses other issues of concern identified.

11. Fourth, the applicant’s delay of a year from his arrival in Australia before seeking protection is not consistent with the applicant having an actual or well-founded fear of harm of returning to Nepal, given that the matters giving rise to the fear were the reason that the applicant left Nepal. The applicant in the hearing said that his agent in Nepal told him that as long as he had a visa he did not need to do anything and that he did not know what his options were.

12. The applicant in the hearing said that he faces particular difficulties because he is from a remote area. He also indicated that he would face difficulties on return because he left Nepal on a false passport and he does not have an exit stamp in his own passport.

13. Given the difficulties with the applicant’s evidence as identified, the Tribunal does not consider the applicant has been a truthful witness in relation to his substantive claims. There have been a myriad of inconsistencies in terms of what political party the applicant was a member of and when. He has provided documents which contradict his most recent claims to the current Tribunal. The applicant has given inconsistent evidence in the account of him being threatened by Maoists in March 2009. The applicant waited a year before claiming protection which is not consistent with the applicant having an actual or well-founded fear of harm of returning to Nepal. The Tribunal does not accept applicant’s evidence that he felt secure because he had a visa or that he did not know of his options. The Tribunal considers that if the applicant had a genuine fear of harm of returning to Nepal that he would have researched and made a protection claim at a much earlier opportunity than he did, notwithstanding that he had the legal right to stay in Australia for a limited period.

14. The Tribunal does not accept the applicant’s understanable concern about the welfare of his family, having needed to relocate after the earthquake, can explain the many difficulties with the applicant’s evidence, nor are they explained by nervousness. The inconsistencies are too significant and numerous to be explained by such factors.  A number of difficulties with the evidence predate the earthquake.

15. The Tribunal is not satisfied that the applicant has ever been a member of either the RPP or RPP-N or involved in royalist politics. The Tribunal is not satisfied that the applicant holds a political opinion in support of the royalist cause in Nepal. The Tribunal is not satisfied that the applicant has ever been threatened by Maoists as a result of his political activities or otherwise. The Tribunal is not satisfied that Maoists have threatened the applicant on the basis that he joined the party. The Tribunal is not satisfied that the applicant’s family have had any approach from Maoists since the applicant travelled to Australia.

16. The Tribunal gives little weight to the documents provided by the applicant in support of his claims given the issues raised in the second area of difficulties outlined with the applicant’s evidence, above.

17. Given the findings of the Tribunal, it is not satisfied that there is a real risk of the applicant facing significant harm as a result of past involvement in royalist politics or due to past threats of harm by Maoists, or visits by Maoists to the applicant’s family’s home since the applicant came to Australia.

18. The Tribunal is not satisfied that there is evidence before it to establish that the applicant is at any risk of significant harm due to living in a remote area in Nepal.

19. The Tribunal is not satisfied on the evidence before it that the general political and security situation in Nepal is such that the applicant faces a real risk of significant harm.  The Tribunal considers the claims that the Maoists would reinstigate the ‘people’s war’ are speculative and it does not consider there is a real risk of significant harm to the applicant on that basis.

20. In terms of the applicant’s facing harm because he will be returning on a passport that does not have an exit stamp, there is no independent evidence before it to support such a proposition.

21. Although not necessary for the purposes of this decision, given the Tribunal’s findings, the Tribunal does note the independent information referred to indicating that there have been no reports over the last three years of any violence perpetrated against members of royalist parties in Nepal by Maoists.  That indicates to the Tribunal that there is no real risk of significant harm to RPP or RPP-N members or supporters in Nepal in the reasonably foreseeable future.

22. In summary, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm due to past or future involvement in royalist political parties, his political opinion, past threats from Maoists, the applicant leaving on a fraudulent passport, the general political and security situation or for any other reason.  

23. Given the above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the complementary protection criterion. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

24. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    David McCulloch
    Member