1410197 (Refugee)

[2015] AATA 3674

1410197 (Refugee) [2015] AATA 3674 (10 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1410197

COUNTRY OF REFERENCE:                  Nepal

MEMBER:David McCulloch

DATE:10 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 10 November 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] September 2013 and the delegate refused to grant the visa [in] May 2014.

3. The applicant appeared before the Tribunal on 28 October 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.

   [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’).

7. 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.

8. 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

9. The applicant entered Australia, on a [temporary] visa, on a fraudulent Nepalese passport in the name of [his Alias].  This passport was surrendered when the applicant lodged his first Protection visa application -[in 2010].  The applicant provided, as part of that application, a passport which he says is genuine and in his own name.  The applicant’s first Protection visa application was refused by the delegate of the Minister [in] April 2011. A review by the Tribunal upheld the delegate’s decision on 10August 2011. The current application for a Protection visa was made [in] September 2013.

10. 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 criterion 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 and evidence before previous Tribunal

11. In the application forms as part of the current Protection visa application, the applicant made the following claims. He says that he left Nepal because he is targeted by Maoists due to his political opinion and his refusal to join with them. The applicant was a member of the Rastriya Prajantra Party (RPP), [District 1], which promotes the monarchy. This leads to a targeting by Maoists who have threatened the applicant in the past. The applicant says that he cannot get state protection as Maoists have influence amongst authorities and that he cannot relocate to other parts of Nepal. It is indicated that recent country information confirms that Maoists who have separated from the main party will continue with armed revolution.

12. The applicant’s former adviser in a letter accompanying the current Protection visa application said that further documentation would be forwarded in support of the application for a complementary protection visa application. No documents were forthcoming.

13. In the interview with the delegate of the Minister with respect to the current application, the applicant said that he was not proposing to forward additional claims and that all the information he wished to be considered had been already provided. He indicated that he wished his previous evidence and claims to be considered.

14. The claims made by the applicant is part of the first Protection visa application together with evidence given by the applicant in the Tribunal hearing with respect to the application are contained in the following extract from the Tribunal’s decision dated 10 August 2011.

    Claims and evidence

    The Tribunal has before it the Department's file relating to the applicant which includes his protection visa application lodged -[in 2010] containing his hand written reasons for claiming protection under questions 41 to 46 (“PV written claims”); his statutory declaration dated [2010] containing his further claims for protection (“statutory declaration claims”); and an audio recording of his interview with the Department [in] October 2010 (the Departmental interview). The Tribunal had regard to the applicant's oral claims and evidence given at a Tribunal hearing on 8 July 2011. The hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The Tribunal also had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.

    The Tribunal and the Departmental file contain copies of the applicant's current Nepali passport. The Department found this to be his genuine passport.

    Relevant background

    Personal and family

    The applicant is presently [age] years of age. He was born in [his home town], Nepal. [District 1] is about [number] kilometers from Kathmandu, the capital of Nepal. He lived in this area all his life until he left Nepal for Australia in [year]. His [family composition] live together in [home town]. He is single with no dependent.

    Education and employment history

    The applicant's level of education is grade 9 which he completed in about [year] and since then he worked in his family farm until he left Nepal for Australia. In Australia he worked as [occupations].

    Australian immigration history

    The applicant came to Australia in [year] on a false passport. He purchased this passport for Rs. [amount] from an agent or broker in Kathmandu, containing an Australian [temporary] visa. At the hearing he said that his paternal uncle living in [another country] gave him the money to purchase this false passport. He stated at the Departmental interview that his genuine passport (referred to above) was mailed to him from Nepal after he arrived in Australia.

    Political background

    At the hearing the applicant gave evidence that he has been a member of his local Rashtriya Prajatantra Party (RPP) since about 2003. He wrote in his "statutory declaration claims" that members of his family “are not interested in any political parties and they do not like politics”. He wrote that he was “influenced to be involved in politics because of my school friend's father who was a local politician and he taught me a lot about politics. He was a pro-Monarchist”. He also wrote that he reveres the King of Nepal “as a reincarnation of a Hindu deity Vishnu, the god of protection”. He gave evidence at the hearing that he was an ordinary member of the RPP but he was active. He has been part of organising the RPP's activities in [his home town] and its surrounding villages. The activities included promoting the RPP and the pro-Monarchist views; visiting people's homes and inviting them to RPP meetings; preparing the meeting venues; celebrating the King's birthdays; and campaigning for the local RPP candidate at the [date] national elections in Nepal. He said at the hearing that his local RPP candidate was [Candidate name]. It is noteworthy that some independent sources confirm this.

    Events that led the applicant to leave [his home town] and subsequently Nepal

    The applicant gave evidence at the hearing that like the previous years since 2004, he and 4 other RPP members, pro-Monarchists and anti-Maoists (co-workers) made arrangements to celebrate King Gayanendra's birthday on 7 July [year]. It was the King's [number] birthday. It was celebrated on a football ground in [his home town] and about [number] guests attended from [the town] and the surrounding villages. They decorated the King's photograph with flowers and they cut a cake and distributed sweets amongst the attendees.

    When he was returning home at the end of the celebration, he heard that a group of Maoists attended the venue of the celebration. They were armed.

    They attacked those who were present and abducted [Mr A], who was one of the co-workers. [Mr A] is a very close friend of him. He lived near his home and they grew up together. They visited each other's homes all the time and knew each other's families very well. Immediately upon hearing the news of [Mr A’s] abduction the applicant became very fearful that the Maoists will also target him and so he did not go home and went to [a] village which is about 2 and ½ hours away on foot and stayed there at a friend's house for about 10 days. He did not feel safe there and so he then moved to [Village 2] which is about 7 hours away on foot from [that village] and stayed there in a hotel until [date]. When he was in [Village 2], he still feared that the Maoists will find him and either get him to become a Maoist and if he refused they will kill him and so he considered exploring the options for leaving Nepal and with this in mind he moved to Kathmandu. He found a broker in [Town 3], near Kathmandu, who advised that he can get him out of Nepal to Australia placing his photo on someone else's passport with an Australian visa and it will cost him Rs.[amount]. The applicant gave further evidence at the hearing that he then rang his paternal uncle early in the morning on [a date in] September [year] and explained his circumstances and convinced him that his only way to avoid the harm from the Maoists is to leave Nepal and asked him to give him [the required amount] and his uncle sent him the money in the same evening via the Western Union in [Town 3]. The following day he paid the broker and gave his photograph and subsequently he got the false passport containing his photograph. The applicant noted in his protection visa application that he left Nepal on [date] and that he arrived in Australia [the next day] which is also confirmed by his Departmental records.

    The applicant's reasons for claiming protection

    In his "PV written claims", his "statutory declaration claims" and at the hearing the applicant claims that he fears that he will be harmed and even be killed by the Maoists if he returns to Nepal because he is a member of the RPP, he is a pro-Monarchist, he is an anti-Maoist and because he was one of the organisers of the King's birthday in July [year].

    No other basis of fearing persecution if he returns to Nepal was raised by the applicant in the application and in the review process.

    Consideration of the applicant's claims

    In response to the Tribunal enquiries at the hearing, the applicant gave evidence that during the time he joined the RPP in 2003 and until the incident on 7 July [year] (when the Maoists attacked the King's birthday celebration in [his home town]) the hostilities or adversities he faced from the Maoists were limited to them telling him to leave the RPP, to stop supporting the Monarchy and to join the Maoists; and verbal threats from them that if he did not do so he will be harmed. He stated that he did not take these threats seriously and they did not do anything to him and he continued his RPP and pro-Monarchy activities including taking part in organising and celebrating the King's birthdays in [earlier years]. He also gave evidence that the Maoists attack on the King's birthday celebration in July [year] and abducting his friend [Mr A] made him fear that they will target him as well and that is why he left his village and eventually Nepal.

    The applicant wrote in his "statutory declaration claims" and at the hearing that [Mr A] either became a Maoists or he has been killed by the Maoists. The Tribunal then asked how he knows this and he said that although he has not spoken with [Mr A’s] family or the other 3 co-workers, he has spoken with his parents and they have said that [Mr A] has not been seen since July [year]. He said that in these circumstances and given that this is the usual practice of the Maoists, he believes that [Mr A] has either become a Maoist or he has been killed by the Maoists. He gave evidence that the matter was reported to the police and the RPP leadership and no action was taken by the police because they are afraid of the Maoists. He also gave evidence that the matter was not publicised in the local media because of fear of Maoists reprisal and it was not publicised in the Kathmandu or the national media because the incident happened in a remote village. The Tribunal then commented that given that his belief in regard to this attack and abduction by the Maoists is based on no positive evidence or not even based on his conversations with the [Mr A’s] family or the 3 co-workers and is based on his parents' and his personal opinion, the Tribunal had difficulty accepting this claim.

    In response to the Tribunal enquiries the applicant gave evidence at the hearing that his uncle agreed to give him Rs.[the required amount] which is a very large amount of money after talking to him for 30 minutes or so. He stated that he had last spoken to his uncle when his uncle called his parents a few months earlier and his uncle did not know the background to his fear of harm from the Maoists although he knew that he was a pro-Monarchist and a RPP member. He stated that his uncle was convinced after talking to him for 30 minutes or so that he needed to leave Nepal for his safety without talking to his parents or any further considerations and was not concerned whether the broker was reliable and trustworthy despite the large amount of money being involved. The Tribunal expressed concern about these claims and stated that it found it implausible that his uncle would give him such a large amount of money after just talking to him for 30 minutes or so only and without any further considerations and without even talking to his parents. The applicant then stated that his uncle loves him and believed him and he would have given him even a greater amount of money for his safety.

    The Tribunal asked the applicant at the hearing to explain why he delayed lodging the protection visa application for about 10 months. He responded by stating that the delay was because he did not know about the refugee or the protection visa option. He said that although he had many Nepali friends in Australia and he has always lived in shared accommodation with a few other Nepali friends in Australia no one told him about the refugee visa option until a friend did in about the middle of last year. He added that if he knew earlier he would have applied earlier. The Tribunal then commented that it had difficulty accepting this explanation given that many Nepali living in Australia would be aware of the refugee visa option as many makes such applications and that if he was a genuine refugee who was really escaping persecution in Nepal and was not wanting to return to that persecutory environment his number one priority would have been, from the moment he first entered Australia, to explore how he can avoid returning to Nepal and if he did this he would have found out about the refugee option. The Tribunal added that it considers it likely that he did not apply for protection immediately after coming to Australia because he did not really have any risk of persecution from the Maoists in Nepal and he has no fear of facing persecution from them if he returns to Nepal and that he fabricated these claims of past harm to establish that he is a refugee.

    In response to the Tribunal's enquiries at the hearing the applicant gave evidence that he knows that the other 3 co-workers that organised the King's birthday celebration in [year] are in [his home town] and the Maoists have not harmed them. He said that the Maoists have not harmed his parents and siblings living in [the town] but initially after he left they enquired about his whereabouts. The Tribunal then commented that given that there is no positive evidence that the Maoists have adducted his co-worker [Mr A] and harmed him; that they have not targeted his other 3 co-workers; that they have not targeted his family; and he had only suffered verbal threats and the harm never went beyond such threats, the Tribunal may consider that his fear of facing harm from the Maoists if he returns to Nepal is not persecution and also not real but all in his mind and based on mere speculation. He then responded by stating that he thinks that the Maoists have not targeted his other 3 co-workers because they are rich and they may have given them money.

    The Tribunal commented at the hearing that the applicant claims that he will be harmed by the Maoists because he was an active member of the RPP and will continue to be so if he returns to Nepal. The Tribunal further commented that the RPP is a legal political party in Nepal and engages in political activities like the other legal political parties in Nepal. The Tribunal referred to Country Information indicating that, although the Maoists may engage in street brawls in rallies of political rivals including the RPP, these incidents are isolated rather than widespread targeting of political opponents. The applicant then stated that like his other 3 co-workers he can also avoid the harm from the Maoists by giving them money but he does not have the money. He added that he can also avoid the harm by joining the Maoists but he does not want to do that because he is strongly against the Maoists' ideology and principles and he is a strong supporter of the Monarchy and the RPP and will continue to do so if he returns to Nepal.

    Independent information

    Background to monarchist parties in Nepal

1. The Rastriaya Prajatantra Party (RPP), also known as the National Democratic Party, is a historically monarchist party that was formed in 1992 by a ‘merger of two groups that both called themselves the National Democratic Party, one led by S.B. Thapa and the other led by L.B. Chand’.[1]

   [1] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1036.

2. Factionalism along Thapa versus Chand lines eventually led to splits in the RPP. The first of these ruptures occurred in early 1998, when the RPP ousted Chand and nine of his supporters for lack of loyalty to Thapa in his then-position as Prime Minister. Chand went on to form a ‘new RPP’, ‘RPP (Chand)’, but in January 2000 – following the party’s dismal showing in the 1999 elections – RPP (Chand) merged back into the RPP.[2] Further rifts between the Thapa and Chand factions resulted in another split in 2005: this time, it was Thapa and his supporters who left and formed their own party – the Rashtriya Janshakti Party (RJP).[3] Unlike Chand, S.B. Thapa did not return to the RPP, but his absence did not end the divisions within the party.[4] The Rastriaya Prajatantra Party – Nepal (RPP-N) was born out of the RPP’s third split, in 2006.[5]

   [2] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1036.

   [3] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1036.

   [4] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1037.

   [5] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1037.

3. Throughout the mid-2000s, the RPP was, by its own report, taking an ‘increasingly pro-democratic stance’,[6] but there were elements within the party that ‘approved participating in King Gyanendra’s government’ after he seized absolute power in 2005.[7] In essence, these individuals were out of step with an RPP that was beginning to question the king’s actions and distance itself from the monarchy.[8] In January 2006, RPP President Rana expelled ten of these ‘royalist dissidents’, who went on to form the RPP‑Nepal (RPP-N) under the leadership of Kamal Thapa.[9]

   [6] “About us: Rastriya Prajatantra Party (RPP)” n.d., Website of the RPP, - Accessed 30 July 2010.

   [7] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1038.

   [8] “The RRP: Radicalism or Ruse?” 2007, Nepalinetbook (blog), 3 December, - Accessed 30 July 2010 – Attachment 1; “RPP doesn’t favour monarchy: Rana” 2007, Nepal News, 19 August, - Accessed 2 August 2010 – Attachment 2; Chapagain, K 2010, “Nepal: Third Failure in Parliament to Elect a Premier”, New York Times, 2 August, - Accessed 3 August 2010; “About us: Rastriya Prajatantra Party (RPP)” n.d., Website of the RPP, - Accessed 30 July 2010.

   [9] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1037. Please note, Kamal Thapa is not to be confused with S.B. Thapa

4. The position on the monarchy remains a key difference between the RPP and RPP-N. Sources suggest that the RPP has retreated from a pro-royalist stance, while the RPP-N continues to advocate a return to a Hindu monarchist state.  The International Crisis Group report also notes that the RPP and RJP both ‘accept that Nepal should remain a republic, but ‘are unclear about what they stand for.’[10]

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

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

5. 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.

6. 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 until recently.

7. 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.  In 2012, the UCPN-M was removed from the United States list of world-wide terrorist organisations. 

8. 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.’  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.’

9. 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.

   Hearing, credibility, findings and assessment

10. 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’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

11. The Tribunal, in its assessment of the applicant’s first Protection visa application, implicitly accepted, without clearly deciding, certain aspects of the applicant’s claims. The Tribunal proceeded on the basis that there had been an attack by Maoists during the King’s birthday celebrations in July [year]. It proceeded on the basis that the applicant, before this time, had been subject to threats that he should leave the RPP and join the Maoists but that the applicant never took these threats seriously (as the applicant stated to the Tribunal) and did not change his behaviour and did not suffer any harm from Maoists.

12. The Tribunal found that the applicant’s claim that his colleague who was taken during the events of July [year] has either been killed or become a Maoist was purely speculative. It was noted that the applicant based this information on what had been told to him by the applicant’s family and had not spoken to his colleague’s family or his other three co-workers about their colleague’s fate.

13. The Tribunal noted, on the applicant’s own evidence, no harm had subsequently come to his other three co-workers who organised the celebrations of July [year]. The applicant indicated this was probably because they are rich and they may have given Maoists money.

14. The Tribunal with respect to the current application independently assessed the evidence. It has the benefit of additional evidence provided by the applicant in the interview with the delegate of the Minister with respect to the current application and in the Tribunal hearing.

15. Based on all the evidence, the Tribunal now has credibility concerns with the applicant’s evidence of his colleague being kidnapped by Maoists in [year], evidence about the fate of his colleague, subsequent visits by Maoists to the applicant’s family looking for the applicant, and these events being the reason for the applicant leaving Nepal.

16. First, there is an inconsistency in the applicant’s account as to what happened on the day that [Mr A] was taken by the Maoists in [year].  The first Tribunal decision records that the applicant gave evidence in the hearing that he heard about [Mr A] being taken on his way home from the celebration. He indicated that he never went home, and left the village. In contrast, in the Tribunal hearing with respect to the current application, the applicant said that he was at his home when he heard what had happened. After some exploration, the applicant said that a villager came to the house to tell him of the taking of [Mr A].

17. The Tribunal put the information from the first Tribunal decision to the applicant in accordance with the procedural requirements of section 424AA of the Act.  In response to the inconsistency, the applicant reiterated that he was at home when he heard about the kidnapping of [Mr A].  He did not otherwise explain the reason for the inconsistency.

18. Whilst the location of the applicant when he heard about the kidnapping of [Mr A] is a tangential issue, the Tribunal finds it unlikely that the applicant would not be aware of where he was when he heard of this extremely distressing event, or he would be confused as to whether he left the village immediately before going home or not. The inconsistency in this evidence causes doubt as to the applicant’s claimed events on this day.

19. Secondly, the applicant has given inconsistent evidence as to the source of his knowledge that [Mr A] had disappeared without trace. The first Tribunal decision records that the applicant had learned that there had been no news of [Mr A] from his own parents, and indicated that he had not spoken with [Mr A’s] family or the other three co-workers. In contrast, in the Tribunal hearing with respect to the current application, the applicant indicated that he spoke to [Mr A’s] family soon after his arrival in Australia and again in either 2011 or 2012.

20. The Tribunal put the information from the first Tribunal decision to the applicant in accordance with the procedural requirements of s.424AA of the Act. In response to the inconsistency, the applicant said that in fact he had spoken to his father after he came to Australia, and there was screaming and crying in the background from [Mr A’s] family who lived nearby. When the Tribunal explored this further, and asked how it would be possible to hear [Mr A’s] family, who were presumably in a different home whilst he was on the phone to his father, the applicant said that his father went to [Mr A’s] family home to say that the applicant was on the phone and this caused them to get upset.

21. The Tribunal considers that the applicant has been directly inconsistent as to whether he spoke to [Mr A’s] family or not. The Tribunal draws no adverse inference from the claim that he spoke to [Mr A’s] family in 2011 or 2012 because this could have occurred after the Tribunal hearing with respect to the first application. It does draw an adverse inference from the applicant’s claim in the current Tribunal hearing that he spoke to [Mr A’s] family shortly after his arrival in Australia and its inconsistency with prior evidence. The Tribunal does not accept the applicant’s tortuous explantion when the discrepancy was pointed out to him that [Mr A’s] family were either in the background during the phone call with his father or that his father, during the course of the conversation with the applicant, went to [Mr A’s] home and told them he was on this phone with the applicant, which caused them to become upset.

22. The Tribunal draws an adverse inference as to the credibility as to the applicant’s claims of [Mr A’s] kidnapping and disappearance as a result of this evidence.

23. Thirdly, the applicant’s evidence about Maoists visiting the applicant’s family home after the applicant left for Australia was unsatisfactory.  In the Tribunal hearing with respect to the current application, the applicant said that there were frequent intimidating visits by Maoists to the family home searching for the applicant after he left for Australia. When the Tribunal asked the applicant how long these visits continued for, he said for some time up until about 2011. He said that the visits have now stopped. In contrast, the first Tribunal decision records that the applicant in the hearing gave evidence that initially after the applicant left for Australia they enquired about his whereabouts. The Tribunal also notes that in the Statutory Declaration and written claims provided by the applicant as part of his first Protection visa application, no mention is made by the applicant of visits by Maoists to the family home after the applicant left for Australia.

24. The information from the first Tribunal decision was put to the applicant under the procedural requirements of s.424AA of the Act. The information was relevant because it refers a visit or visit by Maoists initially after the applicant left for Australia. There was no reference to ongoing visits. Given the that the applicant gave evidence to the Tribunal as part of the first application in 2011 (in July) it might have been expected that in giving evidence to the Tribunal the applicant would have told the Tribunal there had been ongoing visits up until 2011 by Maoists to the family home (given that the applicant had told the Tribunal in the current application that visits had continued up until 2011). 

25. In response the applicant said that when he came to Australia, Maoists used to threaten and ask about the applicant but that this no longer continues.  The Tribunal reiterated the concern with the evidence. The applicant said that he was not asked this question in the first Tribunal hearing. The Tribunal pointed out that the decision records that he said there were visits initially.  The applicant acknowledged this. The applicant said that until 2011 they used to come to his place. He then said that initially they threatened but later on they only came to the village and kept an eye out.

26. The Tribunal also raised with the applicant the fact that his Statutory Declaration as part of his initial application made no reference to visits by Maoists to his family after the applicant left for Australia. The Tribunal considered that, had this happened, they would be significant events, that the Tribunal might have expected the applicant would have included this in his written claims. The applicant indicated that his intention was to expand on the claims orally.

27. Whilst the Tribunal acknowledges that it is a reasonably fine point as between the applicant’s claim in the 2011 Tribunal hearing that there were initial visits by Maoists, as compared to his claim in the Tribunal hearing with respect to the current application that there were ongoing visits until 2011, the Tribunal is of the view that there is an inconsistency on this point. It does not make sense that the applicant would not have indicated in the 2011 hearing that there had been ongoing and intimidating visits to his parents up until at least the period before the Tribunal hearing. The applicant’s explanation, when the inconsistency was pointed out, that in fact the intimidating visits only occurred initially and then the Maoists just hung around the village keeping an eye out is not consistent with what the applicant told the Tribunal initially in the hearing with respect to the current application. In the Tribunal’s view this is an explanation the applicant has constructed when the inconsistency was pointed out to him.

28. The Tribunal also considers it unlikely, that if Maoists were undertaking ongoing intimidating visits to the applicant’s home, that the applicant would not have included this in his original written claims. This would be a key issue that goes to the risk of harm to the applicant. The Tribunal is not persuaded by the applicant’s explanation that this was simply an issue he thought he would explain orally.

29. The overall evidence on this issue causes the Tribunal to have significant doubts as to the applicant’s claims that his family were subject to intimidating visits by Maoists looking for the applicant to either harm him or force him to join them.

30. Fourthly, the delay of 10 months from arriving in Australia until the applicant applied for a Protection visa is not consistent with the applicant fleeing due to the fear of harm claimed. In response to this concern, the applicant in the Tribunal hearing agreed that this was a bit late.  He said that he did not know what to do and did not have access to information or other Nepalese people. He said his English was not good. The Tribunal indicated that, nevertheless, it had concerns that if the applicant had left Nepal for the reasons claimed, that he would have investigated protection options at an earlier opportunity.

31. The Tribunal considers that the delay is not consistent with the applicant’s claims of an urgent need to leave Nepal for the reasons claimed. The Tribunal considers that had the applicant feared a real risk of significant harm of returning to Nepal he would have investigated and made an application for a Protection visa at an earlier point in time. While acknowledging language difficulties, the Tribunal considers that the applicant would have sought assistance within the Nepalese community in Australia and availed himself of the Department of Immigration services which provide for assistance in different languages.

32. For these four reasons, and considering all of the evidence, the Tribunal is not satisfied with key aspects of the applicant’s claims. The Tribunal is not satisfied that a colleague of the applicant was abducted by Maoists in [year] and has not been seen since, and has either been killed or forced to join the Maoists.  The Tribunal is not satisfied that the applicant is a specific target of Maoists who want to harm him as a result of organising the King’s birthday celebrations or due to his involvement in the RPP or RPP-N, generally or due to them wanting him to join the Maoists, or that Maoists have undertaken visits to the applicant’s family, issuing threats and searching for the applicant.

1. The applicant indicated in the hearing that his three fellow co-workers have not suffered any harm but they had been able to buy off Maoists with donations. The applicant indicated that his knowledge that donations had been paid was based on rumours from people who he had spoken to in his village. Given the credibility issues with the applicant’s evidence, and its disbelief of the [year] claimed events, it is not satisfied that these three other co-workers have been targeted by Maoists, and therefore is not satisfied that they have paid donations to avoid being targeted. In any event, on the applicant’s own evidence that his knowledge that donations have been paid is based on rumour, the Tribunal is of the view that this is speculative.

2. The Tribunal acknowledges that it is has made adverse findings on claims that the Tribunal considering the original claim implicitly accepted. However, the Tribunal in this matter refers to additional inconsistencies based on the evidence given in the Tribunal hearing with respect to the current application, as well as the Tribunal’s current assessment of all the evidence.

3. In terms of the applicant’s claim to have been a member of the RPP or the RPP-N there were certain problems with this evidence to the Tribunal. The applicant’s written claims, and evidence in the first Tribunal hearing, was that the applicant was a member of the RPP.  In contrast, in the interview with the delegate of the Minister with respect to the current application, the applicant said that he was a member of the RPP-N.  The applicant in the Tribunal hearing with respect to the current application said that he was involved in the RPP-N.  He was able to correctly indicate that the RPP-N continues to supported the monarchy unlike the RPP.  The applicant indicated that he had been politically involved since 2006 or 2007.  When the Tribunal pointed out that his initial claims indicated that he had been a member of the RPP since 2003, the applicant maintained that the involvement started in 2006 or 2007.  When asked when the RPP-N was formed, the applicant indicated that it was formed in 1990. When the Tribunal pointed out that, based on its independent information, it was not established until 2006, the applicant insisted that it was established in 1990. The applicant initially gave evidence to the Tribunal that he had never been involved in the RPP. When the Tribunal pointed out certain inconsistencies, the applicant said that he had been forced to be involved in the RPP early on.

4. This evidence creates some doubt about the truth of the applicant’s claimed involvement in royalist political parties in Nepal. Nevertheless, with some difficulty, the Tribunal gives the applicant the benefit of the doubt and proceeds on the basis that the applicant has had some involvement with royalist political parties in Nepal.

5. The Tribunal is prepared to accept that the applicant was a pro monarchist and anti-Maoist and was involved in organising birthday celebrations for the King.  The Tribunal is not satisfied that the [year] celebrations involved an attack by Maoists and the abduction of the applicant’s colleague.

6. The applicant gave evidence in the Tribunal hearing with respect to the first application, that Maoists used to ask him to join the party but he did not take this seriously. The Tribunal notes that in the interview with the delegate of the Minister with respect to the current application, the applicant indicated that Maoists used to mentally give him torture. In the hearing, the Tribunal explored the contradiction between these two statements. The applicant said that there was some tension in the requests.  He said that the serious threats only occurred after the [year] incident. As indicated, the Tribunal has not accepted the events of [year] or a subsequent targeting of the applicant or his family. The Tribunal is prepared to accept that were verbal comments from Maoists to the applicant concerning his involvement in monarchist political parties and saying he should join the Maoists, but the applicant did not take these requests seriously. The Tribunal is not satisfied that the applicant was subject to intimidating or serious threats or requests by Maoists for him to join their party or otherwise.

7. The Tribunal accepts that the applicant will continue to be a supporter of the monarchy if he returns to Nepal and opposed to the Maoists.

8. The Tribunal put to the applicant the independent information contained in this decision indicating that since 2011 there had been very few recent reports of harm perpetrated by Maoists against members of royalist political parties in Nepal. Other than two incidents in 2011, there were no reports of harm in subsequent years. This information would suggest that, if the applicant had had involvement with royalist political parties in Nepal and continued to do so in the future, there would be no real risk of the applicant suffering significant harm from Maoists as a result of that involvement. The applicant responded that what is reported does not reflect what is actually happening.

9. Given the Tribunal’s findings, and the fact that it is not satisfied that the applicant’s colleague was abducted by Maoists, that co-workers have been targeted or made to pay bribes as a result, or that there is an ongoing targeting or searching for the applicant by Maoists or a desire to force him to join their party, the Tribunal is not satisfied that there is a real risk of significant harm to the applicant on returning to Nepal on those grounds.

10. In terms of a more general risk to the applicant based on past or future involvement in royalist political parties, the Tribunal is not satisfied that the independent evidence establishes that there is a real risk of significant harm in Nepal today to individuals who are, or have been, involved with royalist political parties. The Tribunal considers that the independent information outlined provides an accurate picture of the situation and is not satisfied with the applicant’s claim that what actually happens is not reported.  The Tribunal makes an assessment based on the assumption that the applicant had some involvement in royalist political parties, but has not been subject to any serious intimidation or harm from Maoists nor have Maoists specifically targeted him as a person of interest. The Tribunal proceeds on the basis that the applicant might continue to be involved in royalist politics should he return to Nepal. On that basis, and given the independent evidence, the Tribunal is not satisfied that the applicant faces a real risk of significant harm from Maoists on returning to Nepal based on involvement in royalist political parties.

11. The Tribunal is not satisfied with claims by the applicant that Maoist separatists will continue with armed revolution to any extent that would create a real risk of significant harm to the applicant based on involvement in royalist political parties, based on the applicant’s own profile and in light of independent information before the Tribunal.

12. The applicant indicated to the Tribunal that there was no other basis on which he feared harm.

13. 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 as a result of: involvement in royalist political parties in Nepal, both in the past and future; a co-worker being abducted in [year] and having disappeared, and potentially killed, or made to join the Maoists; Maoists searching for the applicant with a view to either harming him as part of forcing him to join their party;  the applicant or his co-workers having to pay a bribe to Maoists to escape harm; or for any other reason.

14. For the reasons given 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)(aa).

15. 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

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

    David McCulloch
    Member