1411278 (Refugee)

[2015] AATA 3142

1411278 (Refugee) [2015] AATA 3142 (6 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1411278

COUNTRY OF REFERENCE:                  Nepal

MEMBER:David McCulloch

DATE:6 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 06 July 2015 at 11:35am

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 was invited by the Tribunal to appear before it on 17 June 2015 to give evidence and present arguments. The applicant sent back to the Tribunal the hearing invitation form, signed by him dated 11 May 2015, indicating that he and his adviser would be attending the hearing. The applicant did not appear before the Tribunal at the time and place scheduled.  The applicant’s authorised recipient had advised the Tribunal on 15 June 2015 that it was no longer acting for the applicant. The Tribunal as a consequence wrote to the applicant providing relevant forms to provide the option of appointment of another representative and to change of contact details.  Following the applicant’s failure to attend the hearing, Tribunal staff left two phone messages for the applicant at a number provided by him, but no response was forthcoming. Tribunal staff spoke to the applicant’s former representative who confirmed that the applicant was fully aware of the scheduling and time of the hearing.

   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 whether the Tribunal can be satisfied of the applicant’s factual claims and, if it is, whether the applicant 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] July 1995. An application for a Protection visa was lodged [in] October 1995, at the time the entry permit was due to expire. The application for a Protection visa was refused by the Department [in] October 1996. A review of that decision was sought by the Tribunal which affirmed the Department’s decision on 22 October 1997.

11. The applicant made an application to the Minister pursuant to s.417 of the Act.  [In] February 2010, the applicant was advised that the Minister had personally considered the case and decided that it would not be in the public interest to intervene.

12. The current application for a Protection visa was lodged [in] September 2013.

13. 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 the complementary protection criterion (section 36(2)(aa) of the Act).

14. The applicant’s adviser, in a written submission, argued that under SZGIZ v MIAC there is an obligation to consider both the Refugees Convention criterion and the complementary protection criterion. The Tribunal disagrees with this assessment and refers to SZVGG v MIBP [2015] FCCA 405 in which the Court held that there was no obligation for the Tribunal to consider again whether the applicant met the refugee criterion in circumstances where it had already decided that he did not.

    Claims and extract of evidence from previous Tribunal decision

15. In his application form for a Protection visa as part of the current application, the applicant claims that he joined the Panchayat Party in 1985. He fears that he will face harm at the hands of other political parties including the Communist Party of Nepal (CPN) and the Nepali Congress (NC) Party, as well as significant harm from the Maoists.

16. The applicant provided a Statutory Declaration to the Department as part of his current application. That declaration provided the following information.

17. The applicant was born in the western part of [Nepal] which the applicant states is a stronghold of Maosits and other communists, and anti-monarchy parties.

18. The applicant continues to hold pro-monarchy views. The applicant, when in Nepal, was involved with the Nepal Panchayat Parishad (NPP) which is a monarchy party. The applicant became involved with the NPP due to his father’s involvement and advocacy for the Panchayat system of government in Nepal. The applicant joined the party in 1985. The applicant’s father was head of the village Panchayat.  The applicant studied [a sport] which was aligned to the NPP. Because of the applicant’s advocacy of pro-monarchy political views he became a person of adverse interest to the anti-monarchist parties, including the Maoists.

19. After the demise of the Panchayat system of government and Nepalese Congresses stand, monarchists faced intimidation. The applicant was once physically assaulted by a group of anti-monarchists. As a result, the applicant was forced to leave his home town and came to Kathmandu in 1993. In Kathmandu the applicant continued to express his political opinion, as a result of which he faced intimidation and harm in Kathmandu as well. The applicant travelled back to his home town, but was identified and targeted and faced physical violence. As a result of this, the applicant decided to leave Nepal and come to Australia.

20. The applicant fears harm because the NC party was re-elected to power in 2013, and they are against the restoration of the monarchy and the Panchayat system of government. As the Maoists were wiped out, they may instigate a ‘people’s war’ again. The applicant states that he is unable to get state protection even if he relocates to other areas of Nepal.

21. The applicant’s adviser provided a written submission dated 20 May 2014 to the Department in respect of the current Protection visa application. The submission provides country information on the current situation for people holding the political opinion against Maoists in Nepal. It is submitted that the reports establish that:

    ·The security and political situation in Nepal remains volatile and dangerous;

    ·Human rights violations in Nepal continue despite government promises to curb them;

    ·There is impunity for human rights abuses in Nepal and the inability of authorities to provide meaningful protection to victims;

    ·The split in the Maoist party has threatened the already fragile peace process; the new hardline Maoist party that emerged from the split retook the CPN-Maoist name and declared they would continue their armed struggle;

    ·The hardline Maoist groups have already started collecting donations to recommence their people’s revolt against the government;

    ·The new hardline Maoist party have declared they will harm anyone who does not support them; and

    ·The applicant’s profile places him in the category of persons at risk

22. Submissions are made with respect to links between Indian Maoists and Nepalese Maoists. Submissions are made as to the various criteria for protection.  General submissions are made as to credibility.  Reference is made to previous decisions of the Tribunal. It is submitted that those decisions establish that:

    ·Tribunal members have accepted that in appropriate cases affective relocation is not possible for people like the applicant in either India or Nepal;

    ·Tribunal members have accepted that Maoists continue to operate within impunity in Nepal; and

    ·The state’s security system fails to respond appropriately to the protection needs of citizens.

23. Submissions are made with respect to the complementary protection criterion.

24. Evidence given by the applicant as part of his initial application for protection, and relevant independent information, are contained in the decision of the Tribunal with respect to the initial application.  The following is an extract from the Tribunal’s decision dated 22 October 1997:

    The Applicant claims fear of persecution in Nepal on the Convention-related grounds of "political opinion".

    The Applicant claims that he joined what he called "the Panchayat party" in Nepal in 1985. He claimed that "the Panchayat party" held government until 1990. He claims that he is at risk of harm from members of the other political parties in Nepal, naming the Communist Party of Nepal (CPN), the United Marxist Leninist Party (UML), and the Nepali Congress (NC) Party, all of which currently hold seats in the elected Nepalese parliament, where the so-called "Panchayat  party" is also represented.

    The Tribunal notes that there was no Panchayat "party" as such before 1990, nor did it hold government up to that date; the King was absolute monarch. The term Panchayat describes a non-party, absolutist system of four-tier non-party village council (pancha, from the Sanskrit, appears to refer to the five-member composition of these councils) administrative structure, with the King at its head. The system was introduced in 1961, after a ten-year experiment with democracy (see Lok Raj Baral and R. Andrew Nickson, "History" under "Nepal" in Regional Survey of the World (Europa, 1993; at pp. 597 602). Political parties were banned until the King himself declared an end to the system in late-1989 as a pragmatic move in the face of potentially catastrophic opposition. The Applicant claimed that his father was not only a local representative, or pratan, in the old Panchayat system, but also a member of what was commonly known as the mandale.

    The Tribunal notes that the term mandale was widely-used in Nepal from the 1970s to define members of a pro-pancha group called the Rastravadi Swatantra Vidyarthi Mandal. The term mandal means "caucus" in Nepali. The mandale have been described by Amnesty International, in its June 1992 report (Nepal: A Summary of Human Rights Concerns [London] AI index: ASA 31/02/92, p.9) and other sources as anti-leftist vigilantes (see IRBDC Report NPL11256 dated 21 July 1992) who gained a reputation for using violent and threatening means in order to assert pro-Panchayat, anti-leftist views. They have also been described as "Government paid agents sneaked into student ranks to terrorise ... politically conscious students" (IRBDC op. cit.). The mandale were banned by the King in 1979, apparently because their violent methods inflamed the very same opposition that it was formed to suppress (ibid.).

    The Applicant described his father's mandale activities during the 1980s as having only involved distribution of pro-pancha pamphlets throughout the local community, which he became too old to undertake and which he passed on to the Applicant and his siblings, The Applicant was unable to show that kind of activity was ever logically a part of the mandal's work: pamphleteering is not the kind of covert business in which the mandale were involved, nor was there a need for mandale or pro-pancha civilians to extend their support through pamphleteering, since the system they supported was deeply entrenched and not openly contested; the Applicant's father was not a student, nor according to the Applicant did he use violence to further his beliefs, nor was the Applicant anything more than a high school pupil at the time.

    The Tribunal notes that, in early 1990, the Nepalese police faced difficulty protecting large numbers of people, particularly in Kathmandu, from attacks aimed at pro-pancha supporters and especially at persons suspected of being mandale. The month of April of that year marked the height of a period of widespread public backlash against the mandale and the former Panchayat system, but the wave of violence subsided with the establishment of an interim Constitution and announcement of general elections (Lok Raj Baral and R. Andrew Nickson, op cit.).

    The Applicant claimed that neither he nor his father were targeted in the anti-mandale purges of 1990. His father was not attacked notwithstanding that he would have been a well-known local figure under the former regime. The Applicant said that his father escaped harm because the aged were protected from violence for the very reason of their age. The Tribunal notes that this fact appears to resonate through all the evidence regarding "political violence" in Nepal, as further discussed below. The Applicant claimed that he himself was beaten up in early 1990 but never systematically targeted or pursued.

    The Tribunal notes that general elections were held on 12 May 1991, and the NC formed Nepal's first democratically-elected government. It undertook no purges of political enemies or of former Panchayat supporters. This is argued in detail in DFAT cable KM6598 dated 1 March 1994:

    POST HAS MENTIONED THE HUMAN RIGHTS AND LAW AND ORDER SITUATION IN NEPAL CLOSELY OVER MANY YEARS AND HAS DISCUSSED THESE MATTERS WITH A WIDE RANGE OF INTERLOCUTORS BOTH OFFICIAL AND UNOFFICIAL AND REPRESENTING A RANGE OF POLITICAL OPINION WE HAVE NO REASON TO BELIEVE THAT MEMBERS OF THE PREVIOUS ADMINISTRATION ARE SUBJECT TO PERSECUTION OR VIOLENCE.

    [1]. THE NATIONAL DEMOCRATIC PARTY IS A REGISTERED POLITICAL ENTITY WHICH IS GROWING IN STRENGTH. IT'S LEADERS AND MEMBERS ARE OFTEN RESPECTED AND PROMINENT BUSINESS AND INDUSTRY LEADERS. MANY WERE PART OF THE PREVIOUS PANCHAYAT ADMINSITRATION (sic).

    2.       AS YOU CORRECTLY OBSERVED VIOLENT POLITICAL CONFLICT IN NEPAL CENTRES AROUND THE CONGRESS PARTY AND THE LEFT-WING COALITION. EVEN THIS IS SPORADIC. TO OUR KNOWLEDGE THE NDP HAVE NOT BEEN INVOLVED IN ANY INCIDENTS AND ITS MEMBERS AND SUPPORTERS ARE NOT SINGLED OUT FOR VIOLENCE.

    3.       EVEN MEMBERS OF EXTREMIST ORGANISATIONS SUCH AS THE NOW DEFUNCT  BIDHYARTHI MANDAL (THE STUDENT WING OF THE PANCHAYAT ADMINSITRATION (sic) WHICH FUNCTIONED AS A MECHANISM FOR INTIMIDATION OF OPPONENTS) ARE NOT APPARENTLY SUBJECT TO HARRASSMENT (sic). TO OUR KNOWLEDGE, NO MEMBERS HAVE BEEN ARRESTED, IMPRISONED OR TORTURED BY THE PRESENT GOVERNMENT. ON THE CONTRARY, THE PRESENT NEPALI CONGRESS GOVERNMENT HAS BEEN CRITICIZED FOR NOT BRINGING TO JUSTICE PEOPLE PERCEIVED TO HAVE BEEN RESPONSIBLE FOR EXCESSES UNDER THE PANCHAYAT SYSTEM MANY OF WHOM REMAIN AS PROMINENT PUBLIC FIGURES, AS AN ILLUSTRATION, A PREVIOUS CHAIRMAN OF THE BIDHYARTHI MANDAL NOW HOLDS THE POST OF SPOKESMAN FOR THE NATIONAL DEMOCRATIC PARTY.

    4, THE SITUATION DURING THE PEOPLE'S MOVEMENT FOUR YEARS AGO WAS MORE VOLATILE AND THERE WERE REPORTS THAT IMMEDIATELY FOLLOWING THE COLLAPSE OF THE PANCHAYAT SYSTEM, SOME ELEMENTS OF THE PEOPLE'S MOVEMENT EXACTED RETRIBUTION ON PRO-PANCHAYAT GROUPS RESULTING IN SPORADIC BEATINGS AND A FEW DEATHS.).

    The Tribunal put it to the Applicant that, on the evidence before it, the broad wave of violence in 1990 died down after a few months as the political process stabilised and the way forward became more clear. In reply, the Applicant said that the violence has never ended in Nepal. He cited the incidental outbursts of violence between opposing party supporters during election campaigns as evidence of this; he also appeared to cite clashes between pro-pancha groups and communist supporters at public rallies. The Tribunal put it to the Applicant that these outbursts were isolated in time, severity, cause and sentiment from the events of early 1990 and that they involved spontaneous violence between youths, perpetrated from all sides and similarly sustained. The Applicant disagreed but failed to show how the incidents to which he referred could be seen purely as a purge directed by a single or concerted source against pro-pancha groups or individuals.

    The Applicant claimed at the hearing that his brother's disappearance is proof of the continuing purge on Panchayat supporters and their families. The Tribunal asked the Applicant when his brother disappeared. In reply, he said "1990". When asked for more detail, he said "April",

    The Tribunal notes that during the tenure of the NC government, there were the two National Democratic Parties with pro-pancha sympathies. Distinguished by the names of their respective leaders, Surya Bahadur Thapa and Lokendra Bahadur Chand, the two parties gained a total of only four parliamentary seats in the 1991 elections. In February 1992, they merged into the one National Democratic Party, known as the Rashtriya Prajatantra Party (RPP) (see Khadka, N., "Democracy and Developments in Nepal: Prospects and Challenges" in Public Affairs [Volume 66, Spring 1993]).

    The Tribunal notes that a CPN-UML coalition of the won government from the NC in elections held in November 1994. Once in power, it did not launch any purge against members of opposition groups or parties (DFAT country information dated 7 April
    1995/11 April 1995). On 11 September 1995, after less than a year in office, the CPN¬UML coalition government fell in the wake of a "no confidence" motion in the Nepalese parliament. It was replaced the next day by an NC-led "centrist" coalition that included the Rashtriya Prajatantra Party (RPP), also known as the National Democratic Party, which is variously described as "palace-leaning", "rightist", "supporting the traditional village-level system of administration known as the Panchayat", and "royalist" (ref. India Today, September 30, p. 132; Sydney Morning Herald, 12 September 1995, p. 10; Far Eastern Economic Review, 21 September 1995, p. 22; The Economist, 16 September 1995, p. 36). The transfer of power was reportedly peaceful (ref. Introduction to the "Nepal" chapter of the US Department of State's Country Reports on Human Rights Practices for 1995 [Washington DC: US Government Printing Office, March 1996]).

    In March 1997, a vote of no confidence in NC Prime Minister Sher Bahadur Deuba led to the RPP and the UML putting before the King a joint claim to govern. This led to the investiture of a new UML-dominated government led by an RPP breakaway group under the new Prime Minister Lokendra Bahadur Chand. Chand soon consolidated his government with the unanimous support of the RPP incumbency and on a trust motion that secured the support in his intra-party rival Surya Bahadur Thapa. Six months later, however, this odd coalition of communists and monarchists collapsed in the third change of government since elections in 1994. An NC-led vote of no confidence in Chand's government forced a further shifting of the RPP's allegiances and a new government was sworn in in early October 1997, still headed by the RPP, but now under Surya Bahadur Thapa, and now opposed in parliament by the RPP's sometime allies the CPN and the UML (refs. "Nepal's Communists, Allies Stake Claim to Rule" [Reuter Business Briefing Download, sourced from Reuter News Service, 10 March 1997] DIMA CIS doe, No. CX21827; "Chand Govt. May Not Last Long", The Hindu, India 28 March 1997 [LEXIS/NEXIS Electronic Download, sourced from The Hindu] DIMA CIS doe. No. CX22765; "Nepal Government Falls" [Reuter Business Briefing Download, 6 October 1997] DIMA CIS doc. no. CX25948).

    The Applicant seemed aware that the arguably reconstructed Panchayat supporter Thapa was now the Prime Minister of Nepal, but did not see this fact as being inconsistent with his claims as to the endangered status of RPP supporters. Rather, he provided two letters of reference from his local RPP district secretary stating that he was "an active activist" with the party and was given six months' shelter by the party in Kathmandu following threats on his life by CPN and UML supporters, and suggesting that he not return to Nepal "for about 5 years". One of the letters states that the Applicant left for Kathmandu in 1993 and stayed there for two years in his [relative]'s house, and then presumes to be in a position to assess that he was not safe there either and had to leave the country.

    The Tribunal put it to the Applicant that it seemed incongruous for the author of the letter, though more senior and influential in local politics, to be sitting in the alleged firing line and arguing that lower-status members of the party were in greater danger than he. In reply, the Applicant said that people like the local secretary have guards and he did not.

    However, from the evidence, it still stands that the party was able to provide the Applicant with a reasonable standard of protection in Kathmandu for six months under the party's protection, or two years with his [relative], depending on which of the party's letters one recalls.

    The Applicant himself told the Tribunal that he stayed for two years in Kathmandu with [another relative]. This left the Tribunal convinced that the letters from the so-called "district secretary" cannot at all be considered reliable. The Applicant asked for additional time to seek further supporting letters from his political party, but on the strength of the party's reliability and expertise to date, the Tribunal declined to offer the Applicant the requested delay.

    The Applicant claimed at the hearing that he only survived in Kathmandu over the two years he was there by hiding away in [this other relative]'s house, where no-one could find him, financially supported all that time by his father. However, in his primary application, he claimed that whilst in Kathmandu, he joined a [sports] club that had a reputation for being linked with adherents to the Panchayat. This claim indicates that the Applicant allowed himself and his sympathies to be easily imputed through knowing exposure amongst pro-pancha [sport] exponents. Addressing such a position, the Applicant claimed that no-one would have recognised him in that club, but it stands that he had initially claimed that no-one could help but recognise him there. The two claims were never reconciled.

    The Applicant left Nepal legally on a regularly-issued passport.

    Independent information

    Background to monarchist parties in Nepal

1. 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

2. 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 violence against 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 <Attachment>

3. 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 or others on members or supporters of royalist political parties in Nepal since 2011. The following information was obtained (current to April 2015).

4. 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.

5. 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

6. 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

7. 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

   Assessment

8. Based on the evidence before it, the Tribunal finds that the hearing invitation was sent to the last address for service provided in connection with the review and, in the circumstances, pursuant to section 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it, also taking account of attempts by the Tribunal to contact the applicant following his failure to appear at the hearing, but without any response.

9. The mere fact that a person claims fear of persecution or harm for a particular reason does not establish either the genuineness of the asserted fear or that it has a real chance or real risk or arising, or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

10. For the purposes of s.36(2)(aa) (the complementary protection criterion) the Tribunal must determine whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Nepal, there is a real risk that he will suffer significant harm.

11. On the evidence provided, the Tribunal is not satisfied about significant aspects of the applicant’s circumstances including: further details of the applicant’s political activities; details of the claimed assault by anti-monarchists before travelling to Kathmandu in 1993; details of harm and intimidation suffered by the applicant whilst in Kathmandu from 1993 to 1995; details of harm on later visits back to his village. The Tribunal is therefore not satisfied that the applicant has been subject to any threats or harm based on pro-royalist political opinion and activities.  The Tribunal is therefore not satisfied that there is past political involvement and harm suffered by the applicant that provides a foundation for a real risk of significant harm to the applicant should he return to Nepal.

12. In any event, even if the Tribunal were satisfied of the factual claims made by the applicant (which it is not), the independent evidence cited in this decision indicates that there have been no reports since 2011 of harm perpetrated by Maoists or other parties or groups against pro-monarchists supporters.  That being the case, the Tribunal is not satisfied that there is a real risk of significant harm to the applicant should he return to Nepal today, from Maoist groups, the Communist Party, the Nepali Congress, or any one else, based on political involvement and harm that occurred over 20 years ago, or should the applicant reengage in pro-monarchy politics on return.  Nothing in the independent evidence provided by the applicant changes the Tribunal’s view in this respect.

13. The Tribunal considers the applicant’s claim that the Maoists may reengage in a ‘people’s war’ is entirely speculative and is not satisfied that there is a real risk of significant harm on this basis.

14. There is no other basis on which the Tribunal is satisfied that the applicant faces a real risk of significant harm should he return to Nepal.

15. It follows that, on the information before it, 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 for the purposes of s.36(2)(aa) as a result of past or future involvement in pro-monarchy political parties in Nepal, or as a result of harm from Maoists or other Nepalese political parties, or for any other reason.

16. 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 s.36(2)(aa).

17. 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

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

    David McCulloch
    Member