1412258 (Refugee)

[2015] AATA 3167

1412258 (Refugee) [2015] AATA 3167 (14 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412258

COUNTRY OF REFERENCE:                  Nepal

TRIBUNAL MEMBER:  David McCulloch

DATE:14 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 14 July 2015 at 9:35am

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] April 2013 and the delegate refused to grant the visa [in] June 2014.

3. The applicant appeared before the Tribunal on 23 June 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.  However, the applicant largely communicated with the Tribunal in English.

4. The applicant was represented in relation to the review by his registered migration agent.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. 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).

3. 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.

4. 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’).

5. 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.

6. 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

1. The applicant initially arrived in Australia on a Student visa [in] October 2008 and departed [in] May 2009. The applicant re-entered Australia [in] May 2009 and departed [in] January 2010. The applicant re-entered Australia [in] February 2010. The applicant applied for a Protection visa [in] January 2011, which was refused by the delegate of the Minister [in] April 2011. That decision was affirmed by the Tribunal on 14 September 2011. The current application for a Protection visa was made [in] April 2013.

2. 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).

3. 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 submissions

1. The applicant provided a ‘detailed statement’ dated 8 April 2014 as part of his application for the current Protection visa, which provides the following information. The applicant was born in [Nepal] on[date].  He is Hindu and has never married. Both the applicant’s parents are alive and he has no siblings. As a teenager, the applicant formed a relationship with a boy who subsequently died from[a health condition].  It was a gay relationship but this was hidden. The applicant had to conceal his sexual orientation.

2. The applicant claims that his family and neighbours are Hindu and Conservative. He claims that Nepal does not accept homosexuality and that gay people in Nepal are harassed and discriminated against. The applicant claims that he would be dismissed from work for his sexual orientation. The applicant fears that he will be disowned if he reveals his sexuality to his family and forced into an unwanted marriage. The applicant claims that he has to hide his status when going to doctors or employers.

3. In 2010, the applicant left Nepal to avoid being married to a woman arranged by his family. The applicant pretended that he would marry the woman after completion of his studies.  The applicant claims that he will be unable to seek and obtain the assistance of the police or other authorities for his protection and there is a lack of basic resources.

4. While the applicant notes that following the decision of the Supreme Court, homosexuality is not illegal in Nepal, in practice society is conservative and there is homophobia. The applicant indicates that in Australia he visits gay bars and clubs, he watches porn movies and visits and chats with other men online.

5. The applicant in a letter to the Department of Immigration sent by email dated 29 May 2014 provided a number of Internet links to articles which are submitted as supporting the fact that the police authorities engage in discriminatory and harassing behaviour towards gay people, and that the applicant is at a risk of violence.

6. The Tribunal has accessed the Internet links of the articles provided by the applicant. They include:

   ·Article BuzzFeed News World, undated indicating a deterioration for LBGT rights;

   ·Independent Media Centre report dated 17 January 2007 indicating that Maoists view homosexuality as abhorrent;

   ·Human Rights Watch report dated 16 April 2007 referring to discriminatory attacks by Maoist soldiers on two women;

   ·ABC News report dated 15 September 2010 reporting the detention of 7 gay rights activists in a rally;

   ·Pulitzer Centre report dated 3 January 2011 indicating that law reform in Nepal for the LGBT community is progressive but that society can lag behind;

   ·United Nation News Centre report dated 21 March 2011 reporting on the calling of the United Nations Human Rights Office for Nepal to end all forms of discrimination; 

   ·Human Rights Watch report dated 1 April 2013 referring to the attacks on LGBT activists escalating, the arrest of for transgender women, and the strides in rights for the equality of LBLT people; and

   ·Gaystarnews report dated 1 April 2013 indicating that masked attackers harass gay activists.

7. It is submitted that homosexuals in Nepal face violence, rape, blackmail and murder threats and discrimination in the workplace and are not able to receive proper education. It is claimed that the applicant cannot seek the protection of the authorities. It is submitted that the applicant cannot relocate within Nepal. It is submitted that the government does not ensure that persons responsible for criminal activities are brought to justice, and that state security forces and Maoists continue to defy court orders and obstruct the rule of law.

8. The applicant provided a submission following the hearing. It makes reference to information provided in the hearing to the applicant indicating that a third party had indicated that he was not gay and had a girlfriend in Nepal. This is referred to further in this decision. The submission indicates that the applicant cannot be openly gay in Nepal for fear of retribution, including harm from his family. It is indicated that it is impossible for the applicant to be openly homosexual Nepal.

Independent information

1. The Tribunal asked the Country of Origin Information Section of the Department of Immigration and Border Protection to provide research as to the latest information about the treatment of homosexuals in Nepal, both in terms of legal status, protection from discrimination, state and police protection, risk of physical harm and general societal attitudes (including differences between rural areas and Kathmandu). The following response to that request was provided:

   Information located highlights the diversity of Nepal’s lesbian, gay, bisexual, transsexual and intersexual (LGBTI) community and the tendency of reporting to fail to delineate between the various sexual minorities within the LGBTI community. The majority of reports located generalise issues of the broader LGBTI community despite the experiences of each sexual minority differing based on the context of gender, sexual orientation, age, class or ethnicity, for example. Research located indicates that within the LGBTI community, transgender individuals are subjected to a higher level of discrimination than homosexuals.[1] Research further indicates that LGBTI persons legally have equal rights to all other Nepalese citizens and that there are no laws discriminating against homosexuals in Nepal. Despite anti-discrimination legislation, homosexuals may experience some social marginalisation and may be subjected to low-levels of discrimination in society. Homosexuals are not a targeted group and are not routinely subjected to ill-treatment or harm from the state or society in general. Numerous advocacy groups supporting homosexuals exist in Nepal. Society is historically tolerant of homosexuals. Moreover, the dominant religions in society are traditionally accepting of homosexuals. However notably, societal attitudes towards homosexuals tend to be more conservative in rural Nepal. Overall, Nepal is one of the most progressive countries in Asia for homosexual rights.

   [1] Bista, S 2013, ‘Legal status of Lesbian, Gay, Bisexual, Transgender, Intersex persons in Nepal’, Social Inclusion Research Fund, May, p.21 < Accessed 13 May 2015 <CIS36DE0BB1962>;

   Societal attitudes

   Homosexuals and other LGBT minorities seem to enjoy relatively tolerant treatment in society.  A Hindustan Times article stated that a 2007 Supreme Court ruling has made Nepal ‘something of a haven for sexual minorities.’ The country was said to contain one of the ‘most successful LGBT movements in the world.’  The founder of the Blue Diamond Society (Nepal’s pioneering LGBT rights organisation) became an openly gay Member of Parliament in 2008.  A transgender woman was elected as a representative of the Nepali Congress Party in the election before January 2014.  The LGBT ‘calendar’ in Nepal is said to include separate beauty pageants for transgender women and gay men, LGBT Olympics, and a gay parade.[2]   

   [2] Dutt, Y 2014, ‘A queer ban in India, gay and legal in Nepal’, Hindustan Times, 11 January, para.2,4,8-9, 11 < an-in-india-gay-and-legal-in-nepal/article1-1171673.aspx> Accessed 19 February 2014 <CX318232>  

   A recent combined United Nations Development Program & USAID 2014 report summarises that Nepalese society is generally tolerant towards diverse sexual orientations and gender identities (SOGI) partly due to two factors; historical prevalence and religious acceptance:

   The context for LGBT advocacy in Nepal is complex, set in a tumultuous political environment and a complex society. Tolerance of diverse sexual orientations or gender identities (SOGI), i.e. being lesbian, gay, bisexual or transgender, can be perceived to be high. The visible presence of individuals of diverse genders and sexualities in Nepal goes back centuries and has been recorded in ancient religious texts. This is seen as contributing to tolerance. The main religions of Nepal, Hinduism and Buddhism, encompassing close to 95 percent of the population, are not seen as homophobic. The country lacks the violent religious extremism of some other countries in the region. The frequent gender segregation of society allows for a culture where friendship and physical contact between men is possible, and can enable male-to-male sexual activity (even though this may be related to sexual opportunity instead of sexual orientation or gender identity). Finally, in the last two decades there have been extraordinary political victories for LGBT advocacy, most prominently a Supreme Court ruling in December 2007 that promoted the human rights of LGBT people including anti-discrimination, same-sex marriage and the explicit recognition of transgender people.[3] [4]

   [3] United Nations Development Program  (UNDP) & USAID 2014, Being LGBT in Asia: Nepal Country Report: A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society, 25 February, LGBT Advocacy in Nepal (p. 7) < Accessed 4 May 2015 <CISEC96CF1305>

   [4] This report encompasses the major discussions, findings, and recommendations from the Nepal National LGBTI

   Community Dialogue held at the Radisson Hotel in Kathmandu on 22–23 April 2014 and also includes materials from a desk review of published literature on LGBT issues, a survey of NGOs, and an examination of case studies. This report concentrates on the political developments since the 1990s in Nepali society and how they are correlated with the growing visibility and strength of the LGBT movement which has created the environment for today’s social, political and cultural context for LGBT advocacy. Due to frequent changes in LGBT community advocacy and politics in Nepal, there may be recent developments that have not have been included in this report at the time of publication.

   Despite Nepalese society’s general tolerance and the benefit of legal reforms for LGBT individuals, according to an Institute of Development Studies February 2015 report, LGBT individuals may directly or indirectly experience some social-marginalisation because of their sexuality:

   Nepal is a country where there has been significant legal reform over the past decade that affirms the rights of sexual and gender minority citizens. However, the wider social context is largely conservative and many gender-variant and same-sex desiring individuals may be directly and indirectly predisposed to marginalised livelihoods because of social exclusion, lack of inclusive economic opportunities, and prejudice suffered in educational and employment contexts, among other causal and contributing factors.[5] [6]

   [5] Coyle, D & Boyce, P 2015, ‘Same-sex sexualities, gender variance, economy and livelihood in Nepal: exclusions, subjectivity and development’, Institute of Development Studies, February, Introduction < <CISEC96CF1198>

   [6] This case study explores the relationship between socioeconomic opportunity and exclusion in relation to minority gender and sexualities in Nepal. The study, aims to advance empirically grounded insights and recommendations to address the socioeconomic conditions of sexuality and gender minority peoples, in respect of varied aspects of life experience, subjectivity, self-identity and livelihood. Based on fieldwork conducted in Kathmandu, Nepal, between November 2013 and June 2014 the case study recounts experiences of socioeconomic marginalisation and opportunity as encountered and created by people who experience themselves as being different from socially normative conventions of sexuality and gender.

   Legal status

Nepal is often viewed internationally as a progressive society for having ratified equal rights and recognition for sexual and gender minorities. According to a Hindustan Times article in January 2014, Nepal is the only country in the region which not only permits homosexuality but whose Supreme Court has also ruled against laws that discriminate against homosexuals. 

In 2007, the Nepal Supreme Court delivered a landmark ruling when it mandated that the government abolish laws that discriminate on the basis of sexual orientation and gender identity, instituted the formation of a committee to study same-sex marriage laws across the world, and recognised a self-identified third gender category, marked as ‘other’ on official documents.  This was described as a watershed moment in the struggle for LGBT rights in the region and across the world.[7] 

[7] Dutt, Y 2014, ‘A queer ban in India, gay and legal in Nepal’, Hindustan Times, 11 January < an-in-india-gay-and-legal-in-nepal/article1-1171673.aspx> Accessed 19 February 2014 <CX318232>  

The 2007 Supreme Court ruling proclaimed that LGBT individuals have the right to fundamental human rights that are guaranteed to citizens of Nepal:

In 2007, four LGBT NGOs were successful in a petition against the government in Sunil Babu Pant and Others v. Government of Nepal and Others, resulting in the verdict calling on the government to scrap laws that discriminate on the basis of SOGI, to recognize a third gender category, and to establish a committee to explore the legalization of same-sex marriage.[8]

[8] United Nations Development Program  (UNDP) & USAID 2014, Being LGBT in Asia: Nepal Country Report: A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society, 25 February, LGBT Advocacy in Nepal < Accessed 4 May 2015 <CISEC96CF1305>

According to the US Department of State (USDOS) Country Reports on Human Rights Practices 2013 – Nepal, there is no law that criminalises homosexual activity:

No laws specifically criminalize same-sex sexual activity, and lesbian, gay, bisexual, and transgender (LGBT) persons actively and openly advocated for their rights. Four openly LGBT individuals ran in the Constituent Assembly elections, and most mainstream political parties included pro-LGBT legislation in their party manifestos. LGBT activists continued to press for protections for sexual minorities in the new constitution.[9]

[9] US Department of State 2014, Country Reports on Human Rights Practices 2013 – Nepal, 27 February, Section 6. Discrimination, Societal Abuses, and Trafficking in Persons < <OG1F18C90124>

Nepal has ratified various international conventions including the International Covenant on Civil and Political Rights (ICCRP):

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. [10]

[10] International Covenant on Civil and Political Rights (ICCRP) Article 26, accession 14 May 1991, United Nations Treaty Collection <

Despite the ‘Fundamental Rights and Directive Principles’ section of the Interim Constitution including, ‘equity to any and all persons regardless of colour, sex, race, caste, tribe, gender, sexual orientation or biological condition’,[11] LGBTI activists point out that the Draft Criminal Code attempts to recriminalize homosexuality in Nepal. Article 223 of the Draft Code prohibits ‘unnatural sex’. The section specifies that a person who commits acts of ‘unnatural sex’ can be jailed for up to three years and fined up to Rs 30,000.[12] Furthermore, the present Draft Civil Procedure Code does not allow or prohibit same sex marriage.[13]

[11] Upreti, P N 2014, ‘A queer divide’, The Kathmandu Post, 17 November, para.7 < Accessed 13 May 2015 <CX1B9ECAB10715>

[12] Upreti, P N 2014, ‘A queer divide’, The Kathmandu Post, 17 November, para.4 < Accessed 13 May 2015 <CX1B9ECAB10715>

[13] Upreti, P N 2014, ‘A queer divide’, The Kathmandu Post, 17 November, para.6 < Accessed 13 May 2015 <CX1B9ECAB10715>

A United Nations Development Program 2014 report further highlights the concerns of Nepalese LGBT activists in relation to a proposed amendment of the Civil and Criminal Code:

Same-sex relations or LGBT identities are not a criminal offence in Nepal. Activists are concerned by recent proposed amendments to the Civil and Criminal Code (which will update and replace the current “Muluki Ain”) prepared by the Ministry of Law and Justice, including not recognizing same-sex marriage and whether the vague reference to “unnatural sex” could be used against LGBT people. While the Supreme Court ruling of 2007 ordered investigations into the possibility of same-sex marriage and the introduction of anti-discrimination laws, nothing has happened. The ruling did recognize a “third gender” category. There is an omission of LGBT persons from laws such as sexual assault laws. Several generic laws, such as the Public Offenses Act of 1970 are misused to harass LGBT people. Nepal has signed and ratified a wide range of international treaties that seek to protect human rights and has various domestic laws and policies on human rights and HIV (including components on rights), but these are not necessarily implemented at the community level.[14]

[14] United Nations Development Program  (UNDP) & USAID 2014, Being LGBT in Asia: Nepal Country Report: A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society, 25 February, Findings (p. 9) < Accessed 4 May 2015 <CISEC96CF1305>

A January 2014 Hindustan Times article stated that Nepal was considering the formulation of laws to legalise same-sex marriage.  The same article reported that Nepal’s LGBT movement’s achievements included progressive policies such as: separate toilets for third gender individuals; an ‘other’ option when noting one’s gender in some documents and the official census; a portion of the economic budget allocated to LGBT rights; and detailed manifestos on LGBT rights included in the agendas of most political parties.[15]

[15] Dutt, Y 2014, ‘A queer ban in India, gay and legal in Nepal’, Hindustan Times, 19 February < an-in-india-gay-and-legal-in-nepal/article1-1171673.aspx> Accessed 2 July 2014 <CX318232>

In February 2015, a formal report on same-sex marriage in Nepal was submitted to the Prime Minister’s office.[16] The report calls for the government to recognise same-sex couples as equal to heterosexual couples and requests that the government define marriage as a relationship between two individuals in an attempt to legalise same-sex nuptials.[17] Reportedly, officials from both the ruling centre-left coalition and other parties have declined to state whether they support recommendations of the report. According to human rights lawyer and panel member of the committee, Hari Phuyal, if the recommendation is supported, same-sex couples ‘will be entitled to pension or any other benefits, inheritance, can register their marriage with government agencies, can receive parental property’.[18]

[16] Pun, W 2015, ‘Same-sex couples see new ray of hope’, e-Kantipur, 13 February, para.4 < Accessed 13 May 2015 <CXBD6A0DE6249>

[17] ‘Panel for legalising same-sex marriage’ 2015, e-Kantipur, 9 February, para.2-4 < Accessed 13 May 2015 <CXBD6A0DE6248>

[18] Sharma, G 2015, ‘Nepal sexual minorities back panel’s call for legal same-sex marriage – TRFN’, Reuters, 17 February, para.6-8 < Accessed 13 May 2015 <CXBD6A0DE6250>

Protection from discrimination

Human Rights Watch (HRW) World Report 2014 mentioned that in 2013, despite Nepal having made significant progress protecting the rights of the LGBT community, ‘transgender women’ were arrested under the ‘Public Offense Act’ (POA).[19]  Further information located indicates that in the first quarter of 2013 police arrested ‘some fifty’ LGBT individuals, mostly transgender, using the Public Offences Act.[20] According to a Blue Diamond Society (BDS) report of 2013, Nepalese police used POAs to ‘arbitrarily arrest individuals they perceive to be men who have long hair, including métis’[21] [22]. The timing of these arrests coincided with a campaign aimed at curbing theft, robbery and hooliganism in Kathmandu.[23] According to one 2013 report, police in Kathmandu launched a campaign rounding up 711 young people, ‘mostly males, sporting long hair and wearing ear studs or ear rings’.[24] Following a petition to the Supreme Court, the court ‘ordered police personnel not to harass citizens according to their personal interests and appearance’.[25] However, BDS argued that the Supreme Court order ‘does not repeal the POA, nor does it remove the threats that LGBTI individuals could still be targeted and prosecuted under the POA.[26]

[19] Human Rights Watch 2014, World Report 2014 – Nepal < Accessed 7 May 2015 <CIS2F827D92469>

[20] Blue Diamond Society & Heartland Alliance, 2013, The Violations of the Rights of Lesbian, Gay, Bisexual, Transgender, and Intersex Persons in Nepal, June, Section III pp.8-9 < Accessed 16 April 2014 <CIS27885>

[21] The term “métis” may refer to both men by birth who identify as feminine or transgender women.

[22] Blue Diamond Society & Heartland Alliance, 2013, The Violations of the Rights of Lesbian, Gay, Bisexual, Transgender, and Intersex Persons in Nepal, June, Section III p.9 < Accessed 16 April 2014 <CIS27885>

[23] ‘SC verdict lifts taboo on long hair, ear jewellery’ 2013, The Himalayan Times, 8 April, para.6 < <CXC28129414312>

[24]‘711 youth held’ 2013, The Himalayan Times, 26 February, para.1 < <CXC28129414314>

[25] SC verdict lifts taboo on long hair, ear jewellery 2013, The Himalayan Times, 8 April, para.5 < <CXC28129414312>

[26] Blue Diamond Society & Heartland Alliance, 2013, The Violations of the Rights of Lesbian, Gay, Bisexual, Transgender, and Intersex Persons in Nepal, June, Section III p.9 < Accessed 16 April 2014 <CIS27885>

HRW in 2014 outline an incident of discrimination against BDS whereby authorities ‘did little to investigate’ ‘threatening’ phone calls and ‘harassment of members’. Furthermore, authorities delayed the organisation’s 2012-2013 licence, and froze bank accounts.[27] The consecutive HRW World Report in 2015 made no mention of homosexual, or more broadly, LGBT discrimination in Nepal during 2014.[28]

[27] Human Rights Watch 2014, World Report 2014 – Nepal < Accessed 7 May 2015 <CIS2F827D92469>

[28] Human Rights Watch 2015, World Report 2015 – Nepal, 29 January < <NG5A1E6BC54>

The most recent USDOS Country Reports on Human Rights Practices 2013 – Nepal made reference to ‘low-level’ police and government in rural areas and the Tarai region sometimes harassing and abusing LGBT individuals. The report did not make a distinction as to whether lesbian, gay, bisexual, transgender or intersex were specifically subjected to harassment and abuse:

Government authorities, especially low-level police in rural areas and the Tarai, sometimes harassed and abused LGBT persons. According to the Blue Diamond Society, a local LGBT advocacy NGO, harassment of such persons by both government and citizens was common, but acts of violence were on the decline. The Nepal Police HRC confirmed some low-level harassment occurred because many citizens had negative views of LGBT persons, and the Nepal Police were not immune to such social perceptions. Nonetheless, the Nepal Police HRC conducted LGBT rights training and worked closely with the LGBT community to minimize and prevent such harassment. The Nepal Police HRC reported that it did not receive any reports of harassment of LGBT persons.[29]

[29] US Department of State 2014, Country Reports on Human Rights Practices for 2013 – Nepal, 27 February, Section 6. Discrimination, Societal Abuses, and Trafficking in Persons < Accessed 11 March 2014 <CIS27401>

the Freedom House on 15 April 2015 reported that ‘LGBT people reportedly faced harassment by the authorities and other citizens, particularly in rural areas.’[30]

[30] Freedom House 2015, Freedom in the World 2015 – Nepal, 15 April, Rule of Law < Accessed 5 May 2015 <CISEC96CF1740>

A survey conducted by US-based Williams Institute in conjunction with BDS included participants from 32 districts, including from 150 castes and ethnic groups. Reportedly, 66 percent of participants claimed discrimination or harassment exists within society.[31]

[31] Upreti, P N 2014, ‘A queer divide’, The Kathmandu Post,17 November, para.8 < Accessed 13 May 2015 <CX1B9ECAB10715>

The USDOS Country Reports on Human Rights Practices 2013 – Nepal notes that although the government did not discriminate against those in society who provide HIV-prevention service or against high-risk groups more likely to spread HIV/AIDS, some discrimination was evident within society. Such discrimination was more directed towards HIV/AIDS infected women rather than men.[32]

[32] US Department of State 2014, Country Reports on Human Rights Practices 2013 – Nepal, 27 February, Section 6. Discrimination, Societal Abuses, and Trafficking in Persons  < <OG1F18C90124>

Nepal lacks anti-discrimination laws in employment, which may affect all citizens of Nepal including sexual and gender minorities:

Nepal does not have anti-discrimination laws to cover employment. Many LGBT people report sexual harassment and discrimination during recruitment and employment. Those who are heteronormative in appearance and can hide their sexual orientation or gender identity can feel safer, though they may feel burdened by this. Transgender people confront explicit discrimination when their citizenship or identity documents may not reflect their chosen gender, or they have difficulties in obtaining documents in their preferred gender which would then enable them to seek employment.[33]

[33] United Nations Development Program  (UNDP) & USAID 2014, Being LGBT in Asia: Nepal Country Report: A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society, 25 February, Executive Summary < Accessed 4 May 2015 <CISEC96CF1305>

The majority of Nepal’s population practice Hinduism. Buddhism also has a comparatively smaller following. According to an Asia Times 2012 report, Hindus in Nepal ‘promptly’ accepted the Supreme Court’s decision in 2007 to provide equal rights to LGBT individuals.[34] Generally, discrimination from religious groups towards homosexuals is minimal:

[34] Arora, V 2012 ‘Hindus in Nepal shun homophobia’, Asia Times, 28 August, para.1-5 < Accessed 29 August 2012 <CX293960>

Discrimination from religious groups is minimal due to a Hindu and Buddhist majority that are seen as not overtly homophobic. The Hindu epics record diverse sexual orientations and gender identities. References to sexual orientation or same sex behaviour are barely discussed in the Pali Canon, the scriptural texts that hold the Buddha’s original teachings. So, it is perceived that religion does not contribute strongly to discrimination and harassment of LGBT individuals, except where it influences social mores and traditions.[35]

[35] United Nations Development Program  (UNDP) & USAID 2014, Being LGBT in Asia: Nepal Country Report: A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society, 25 February, Executive Summary (p. 10) < Accessed 4 May 2015 <CISEC96CF1305>

Acceptance by the families of some identities within the LGBT community may be limited due to social and cultural norms:

The heterosexual family structure has the greatest influence on the lives of LGBT people in Nepal, yet acceptance by families is severely limited due to overwhelming social and cultural pressures to enter a heterosexual marriage and create a family, as well as by rigid conventional expectations of gender roles. Most LGBT people simply do not “come out” or open up about their identities due to the stigma, confusion, and the loss of face this could create for their families. Same sex couples may find it difficult to find housing or experience discrimination from neighbours. LGBT people also face discrimination because of their inability to get married, have their relationships recognized, and/or to adopt children. Lesbian couples are denied access to in vitro fertilization (IVF). LGBT individuals in heterosexual marriages may be reluctant to divorce because of strict moral and social conventions that stigmatize divorce.[36]

[36] United Nations Development Program  (UNDP) & USAID 2014, Being LGBT in Asia: Nepal Country Report: A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society, 25 February, Executive Summary (p. 10) < Accessed 4 May 2015 <CISEC96CF1305>

LGBT issues are prominent across numerous media outlets in Nepal although there is criticism that media reports can be inaccurate or sensationalised:

The Nepali media reports on the political challenges and victories of the LGBT community and has played an important role in highlighting issues like violence against transgender female sex workers. However, they are criticized for not reporting on the lived experiences of the wide diversity of LGBT people, or reporting on them in an inaccurate and sensational manner. There is a regular LGBT radio program that communicates information and advice about sexual and gender minorities’ health and rights issues throughout Nepal and there is some LGBT reporting on community radio and state TV. The Nepali movie industry has now produced films like Soongava[37] and Love U Man that depict same-sex relationships.[38]

[37] ‘An exploration of homo-erotic love’ 2013, e-kantipur, 4 January < Accessed 13 May 2015 <CXC28129414321>

[38] United Nations Development Program  (UNDP) & USAID 2014, Being LGBT in Asia: Nepal Country Report: A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society, 25 February, Executive Summary (p. 11) < Accessed 4 May 2015 <CISEC96CF1305>

Advocacy groups

Nepal’s transition from an absolute Hindu monarchy to a multi-party democratic system in the 1990s and 2000s created a space for LGBT with the emergence of civil society and NGOs. International donor money to respond to HIV helped galvanize LGBT advocacy by way of the establishment of the Blue Diamond Society (BDS):

In the past decade and half it [BDS] has been joined by several other NGOs such as Mitini Nepal, Saino Nepal, Sahara Samaj, Ekata Nepal, Naulo Srijana Nepal and Paribartan Nepal. The initial focus on MSM [men who have sex with men] and transgender women has expanded to include lesbians and transgender men and has also broadened to a human rights focus. LGBT organizations and individuals also participated in the civil society movement also aligned with a broader political and social movement which galvanized against the royal coups in 2002 and 2005 and eventually led to the overthrow of the monarchy. Joining forces with broader civil society allowed the LGBT movement to gain visibility, and this was exemplified with the nomination of Asia’s first openly gay parliamentarian Sunil Babu Pant who served as a Member of Parliament (MP) from 2008 to 2012.[39]

[39] United Nations Development Program  (UNDP) & USAID 2014, Being LGBT in Asia: Nepal Country Report: A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society, 25 February, Executive Summary (p. 16)  < Accessed 4 May 2015 <CISEC96CF1305>

There are more than 55 LGBT civil society organisations throughout Nepal with most of them concentrated in major urban areas and the southern Terai belt. Blue Diamond Society is recognised as the most prominent fiduciary of the LGBT community:

Organizations such as BDS are well established and have significant funding at their disposal. In recent years, there have been concerns about sustainability and long-term commitment to the work of several organizations as many of them are entirely donor dependent. Financial resources for emerging organizations are seen as inadequate because of the concentration of funding among established NGOs.[40]

[40] United Nations Development Program  (UNDP) & USAID 2014, Being LGBT in Asia: Nepal Country Report: A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society, 25 February, Executive Summary (p. 11) < Accessed 4 May 2015 <CISEC96CF1305>

According to a BDS 2013 report, BDS is the leading NGO advocating for the human rights of sexual and gender minorities in Nepal. BDS provides services to over 300,000 individuals and is situated in 40 cities across Nepal:

Some of the programs that BDS runs focus on HIV/AIDS prevention, care and support, legal counselling and job training, as well as documenting the human rights violations against people based on their sexual orientation or gender identity. BDS’s various services and programs aim to fill the void caused by the lack of adequate state services for sexual and gender minorities.[41]

[41] Blue Diamond Society & Heartland Alliance, 2013, The Violations of the Rights of Lesbian, Gay, Bisexual, Transgender, and Intersex Persons in Nepal, June, Section III < Accessed 16 April 2014 <CIS27885>

Nepal hosted a UN regional seminar on ‘Human Rights, Sexual Orientation, and Gender’ on 22 March 2013. Discussed during the seminar was the progress concerning the social position of sexual and gender minorities in Nepal over the past decade. BDS founder Sunil Babu Pant drew international attention to a notable instance of state discrimination against sexual and gender minorities in Kathmandu by ‘specific parties’ within the Nepali government:

In Kathmandu the ‘authorities’ are giving us – LGBTIs – a hard time – giving misleading information to media, not renewing Blue Diamond Society’s operating licence and thus causing a negative impact on the national LGBTI population as most of the programmes that benefit LGBTI are stopped. Kathmandu Police have been intensifying arbitrary detention of LGBTI people and charging them with ‘public nuisance’ charges and bail of more than US$350 per person – the total sum of bail paid by detained LGBTI members in just last four months was some US$9,000 – which is too high for many to pay. Transgender [people] are having to take loans to pay the bail amount and to repay the loans are having to seek more sex work…[42]

[42] Coyle, D & Boyce, P 2013, ‘Development, Discourse and Law: Transgender and Same-Sex Sexualities in Nepal’, Institute of Development Studies, July, p. 10 < <CIS28922>

State/police protection

In the past, homosexuals have experienced a degree of discrimination and social exclusion from some low-level government administration and police predominately in rural Nepal. Various incidents of violence against sexual minorities have been recorded,[43] although, there has been a ‘decline’ in violence against LGBT individuals in recent years.[44] Incidents of police arbitrarily detaining LGBT individuals using the Public Offences Act of 1970 in early 2013[45] coincided with a 2013 police campaign against theft, robbery and hooliganism whereby police arrested individuals based on appearance, ‘mostly males, sporting long hair and wearing ear studs or ear ring from different parts of the city.[46] Nepal has numerous LGBT support groups to advocate for LGBT rights including BDS who act as a fiduciary between the LGBT community and government.[47] Reports were not located indicating that the state or police are unable to provide protection to homosexuals. Generally, community perceptions are that public security has improved in recent years.
A Saferworld 2013 report on local security and justice perceptions in selected districts of Nepal notes that overall public security has improved in recent years.[48] Public perceptions of the causes of insecurity included: the lack of rule of law and impunity; social marginalisation; weak governance and state delivery; poverty; and poorly-managed socio-economic transformation. According to the report:

Communities perceive that security provision by the Nepal Police has improved. Community respondents who felt that public security had improved over the past two years attributed this to efforts by the NP to be more proactive and strengthen security provision, especially in Bara, Parsa, Morang, Banke and Makwanpur. These efforts reportedly included improved commitment and leadership illustrated by individuals within the NP; reestablishment of police posts at the local level in some areas; improved patrolling at night time and in border areas; better efforts to collaborate with communities in security provision, which is regarded to be necessary for adequately responding to security needs. Respondents stressed that the NP had collaborated with communities in community policing through the establishment of Community Service Centres; on community security initiatives; by partnering with non-governmental organisations (NGOs) to better reach communities...[49]

Risks of harm

Although Nepal is not a country that has been characterised as having high levels of homophobic violence, social pressure to conform to heteronormative social conventions, and discrimination towards those who fail to conform, still predominantly shape the lives of some sexual and gender minorities in Nepal.[50]

The state does not actively discriminate against homosexuals although discrimination may be evident in society. The United Nations Development Program & USAID report notes that LGBT individuals ‘may’ experience discrimination and violence:

Political advances have not necessarily translated into the daily lives of LGBT individuals who may experience discrimination and violence in all aspects of their lives – in employment, family, health care and education. The government bureaucracy may not be interested or may not have the capacity to implement policies and laws that can benefit LGBT people. In a country blighted by extreme poverty, the human rights of LGBT individuals may take less priority than issues perceived to be more urgent such as fulfilling basic needs including having enough food and adequate shelter. In fact, human rights for any Nepali may be difficult to prioritize in the face of widespread and crushing poverty.[51]

[43] Immigration and Refugee board of Canada 2012, Treatment of sexual minorities, including legislation, state protection, and support services, 20 January, State Protection < <NPL103943.E>

[44] US Department of State 2014, Country Reports on Human Rights Practices for 2013 – Nepal, 27 February, Section 6. Discrimination, Societal Abuses, and Trafficking in Persons < Accessed 11 March 2014 <CIS27401>

[45] Blue Diamond Society & Heartland Alliance, 2013, The Violations of the Rights of Lesbian, Gay, Bisexual, Transgender, and Intersex Persons in Nepal, June, Section III pp.8-9 < Accessed 16 April 2014 <CIS27885>

[46]‘711 youth held’ 2013, The Himalayan Times, 26 February, para.1 < Accessed 11 May 2015 <CXC28129414314>;

[47] United Nations Development Program  (UNDP) & USAID 2014, Being LGBT in Asia: Nepal Country Report: A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society, 25 February, Executive Summary (p. 11) < Accessed 4 May 2015 <CISEC96CF1305>

[48] Saferworld 2013, Snapshot of Local Security and Justice Perceptions in Selected districts of Nepal, March, Executive Summary < <CIS36DE0BB1665>

[49] Saferworld 2013, Snapshot of Local Security and Justice Perceptions in Selected districts of Nepal, March, 1.3 Perceptions of safety and security trends in Nepal < <CIS36DE0BB1665>

[50] Coyle, D & Boyce, P 2015, ‘Same-sex sexualities, gender variance, economy and livelihood in Nepal: exclusions, subjectivity and development’, Institute of Development Studies, February, p. 6 < <CISEC96CF1198>

[51] United Nations Development Program  (UNDP) & USAID 2014, Being LGBT in Asia: Nepal Country Report: A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society, 25 February, LGBT Advocacy in Nepal (p. 7) < Accessed 4 May 2015 <CISEC96CF1305>

The most recent USDOS Country Reports on Human Rights Practices 2013 – Nepal specifically notes that incidents of violence are ‘on the decline’ and that Nepalese police conducted ‘LGBT rights training’ and liaised closely with the LGBT community to minimise and prevent incidents of harassment.[52]

A Saferworld 2012 research report on security and crime in the Kathmandu valley noted that an increase in violent crime did not correlate with a decrease in sexual and gender based violence. However the report does suggests that this may be due to individuals not feeling comfortable in discussing sensitive issues openly during research or reporting it to the

[52] US Department of State 2014, Country Reports on Human Rights Practices for 2013 – Nepal, 27 February, Section 6. Discrimination, Societal Abuses, and Trafficking in Persons < Accessed 11 March 2014 <CIS27401>

Hearing, credibility, findings and assessment

1. 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’.

2. The Tribunal notes that the delegate of the Minister accepted that the applicant was homosexual and that he provided candid responses to questioning. The Tribunal has listened to that interview and it is not satisfied that the applicant’s sexuality was explored in detail or his claims tested.

3. The Tribunal has concerns with the applicant’s claims that he is gay.

4. First, there is no evidence other than the applicant’s claim that he is homosexual to substantiate the fact. The Tribunal, in the hearing, explored with the applicant whether there was any evidence that my support his claim. It asked whether there might be information on his iPhone such as communication with people he was in relationships with or online dating apps which would indicate that he was gay. The Tribunal asked the applicant if medical reports would substantiate that he was gay. The applicant indicated that he had no such information. The applicant indicated that he was not on Facebook.

5. The applicant explained that he has only ever had casual encounters, and never more than a single encounter, and he never swapped contact details with a person he had met as he was wary of doing so. The applicant also indicated that he had no gay circle of friends and indeed indicated that he had no circle of friends. The applicant indicated that he is not a member of any gay organisations.  He indicated that he attended a parade once.

6. While the Tribunal is not in a position to act as an arbiter of sexuality and to draw assumptions as to the manner in which the applicant should practice his sexuality, it does strike the Tribunal as unusual that the applicant would flee Nepal because of restrictions on the practice of his sexuality and lead such a narrowly focused life in relation to his sexuality in Australia, including having no gay social group and with little participation with the gay community. It is also not consistent with the applicant having been in a committed relationship in his youth to maintain such casual relationships only in Australia.

7. The applicant gave evidence that he never had more than a single encounter with a person after the Tribunal asked him about evidence of communication with those with whom he was in relationships. The way this evidence was given caused the Tribunal to consider that the applicant may have provided evidence to this effect to explain the lack of any evidence of communication with a person with whom he was in a relationship.

8. More broadly, the Tribunal is concerned that there is not one piece of corroborating evidence to indicate that the applicant is gay. It is for the applicant to put his case to the Tribunal and there is no obligation to provide corroborating evidence but at the same time the Tribunal needs to have sufficient evidence to satisfy itself as to the truth of the claims that are made.  The Tribunal put the applicant on notice as to its concerns in this respect by virtue of its questioning on this issue. In the written response provided after the hearing no details were offered of any information that might confirm the applicant’s sexuality. 

9. Second, the applicant has provided inconsistent evidence as to the nature of his online activities in Australia. The applicant in his 2014 written statement said that he engaged in online dating. When the Tribunal asked the applicant about evidence he might have of online dating he said that he stopped online dating when he moved to [another city] in 2013. There is therefore a direct inconsistency in this evidence. Again, the conclusion might be drawn that the applicant gave evidence of his stopping online activity to explain why there was no evidence of it.

10. Third, while the applicant indicates that he lived in [a particular city] for two years he was only able to name one gay venue in[that city]. He said that he attended [a certain bar] and knew of the names of no other venues. It strikes the Tribunal as somewhat unusual that the applicant would only know one gay venue of the many gay venues that exist, particularly around [the area] where the [bar is] located.  The applicant was able to name a number of gay venues in [the city] where he currently lives.

11. Fourth, the applicant’s evidence about his witnessing harassment of homosexual people in Nepal lacked plausibility given the independent evidence relating to police harassment in Nepal. The applicant in the hearing said that he almost completely hid his sexuality during his time in Kathmandu, and did not engage in any relationships or sexual encounters. He did indicate that, on two occasions, he went to an area where gay men congregated. He said on both occasions he saw police raiding the area beating gay men and detaining them.

12. This seems very unlikely to the Tribunal in the light of the independent evidence which, whilst confirming that there has been police harassment, particularly of transgender people, suggests that homosexuals are not routinely subject to ill-treatment or harm from the State or society in general. In that context, it strikes the Tribunal as a remarkable coincidence that on the only two occasions the applicant visited a gay area in Kathmandu that there would have been a police raid.

13. It also strikes the Tribunal as unlikely that the applicant would have lived in Kathmandu, in the freedom of a larger city, and away from his family and home village, and that he would have done almost nothing to express his sexuality. In the hearing, the applicant said that this was because he was afraid that his relatives, who he was living with, would find out. It is not consistent that the applicant would have feared at least a secret relationship in Kathmandu when he was able to conduct a relationship whilst living with his parents.

14. The Tribunal pointed out to the applicant that it had concerns with his credibility that he was homosexual given the nature of his evidence, and noting a number of the issues referred to. The applicant responded by saying that he could not express himself in Kathmandu.  The applicant referred to press reports he says establish that homosexuals are treated badly and persecuted in Nepal.

15. The Tribunal refers to further evidence provided at hearing and issues raised with the applicant at the hearing.

16. The applicant was asked whether he had told his work [colleagues] that he is gay.  He said that he had.

17. The Tribunal asked the applicant in the hearing if he knew of a women called[name deleted].  The applicant said that this was a friend in Nepal. The Tribunal asked the applicant if she had been the applicant’s girlfriend and the applicant said no. The applicant had previously indicated in the hearing that he never had a girlfriend.

18. The Tribunal put to the applicant pursuant to the procedural requirements of s.424AA of the Act information contained in a note provided to the Tribunal by the Department of Immigration indicating that a person had contacted the Department to advise that the applicant was not being truthful in his claims that he was homosexual, and that he was only making this claim for the purpose of his application for a Protection visa. The person had indicated that the applicant had had a long-term girlfriend in Nepal by the name of[name deleted].

19. The applicant indicated that there are jealous people. The applicant indicated that he is what he is. He said it is difficult to trust what other people say and that there might be rumours. The Tribunal indicated to the applicant that it was likely to give limited weight to this information given its untested and anonymous nature.

20. The information referred to provided by the Department had been accompanied with a certificate under s.438 of the Act regarding the disclosure of the information. As a result, the Tribunal provided to the applicant a direction under s.440(1) of the Act limiting the extent to which the applicant could publish or disclose the information provided.

21. In the written submission provided by the applicant to the Tribunal following the hearing, the applicant said that the girl in question was just a friend and that if he was in a relationship with her he would have brought her here on a spouse visa. It is indicated that a malicious call providing misleading information was done for the purpose of jeopardising the applicant’s freedoms. It is indicated that there are resentful and homophobic people that will prevent a person from leaving an openly gay life.

1. The independent information concerning the treatment of homosexuals in Nepal referred to in this decision was provided to the applicant and his adviser in writing in the hearing. The Tribunal summarised to the applicant its assessment of the main points arising from the independent evidence, as follows:

   ·GBLT persons have legally equal rights in Nepal and there are no laws discriminating against homosexuals. The Supreme Court in 2007 delivered a ruling in which mandated that the government abolish laws that discriminate on the basis of sexual orientation. A provision in the Draft Criminal code prohibits  ‘unnatural sex’ the meaning of which is unclear;

   ·There are recent reports that Nepal is considering laws to legalise same-sex marriage;

   ·Homosexuals are not targeted as a group and are not routinely subject to ill-treatment or harm.  A 2013 report notes that incidents of violence against the LGBT community were on the decline;

   ·In practice, homosexuals may experience on social marginalisation and may be subject to low-level discrimination.  This can include marginalised livelihoods, lack of economic opportunities and prejudice in educational and employment contexts;

   ·There are reports from 2013 indicating arbitrary arrest of LGBT individuals, mostly transgender;

   ·Acceptance by the families of some with in the LGBT community may be limited due to social and cultural norms;

   ·Numerous advocacy groups support homosexuals in Nepal;

   ·Dominant religions are generally accepting of homosexuals.  For example, Hindus in Nepal promptly accepted the Supreme Court’s decision in 2007 to provide equal rights to GBLT individuals; and

   ·Attitudes are more conservative in rural areas.  There is a report that in 2013, for example, there was low-level police and government harassment of LGBT individuals in rural areas and the Tarai region.

2. The Tribunal noted to the applicant that this independent information does not support the contention that homosexuals in Nepal face, at a generic level, harm that could be said to constitute persecution or significant harm, acknowledging that there can be discrimination and hostile societal attitudes.

3. The applicant commented in response to this assessment of the independent information that there is good news in the media that does not necessarily report the difficulties that happen in reality. The applicant said that he has a better life here in Australia. He said he would be discriminated against in Nepal and could face difficulties in employment and daily activities such as opening bank accounts. He referred to difficulties from politicians. The applicant also indicated that the aftermath of the earthquake creates difficulties in terms of employment and more prevalent crime rates.

4. In making findings as to the applicant’s sexuality, the Tribunal gives no weight to the information provided by a third party that he is not gay. However, considering the totality of the applicant’s evidence including the four areas identified where the Tribunal has indicated difficulties with his evidence, the Tribunal does not believe the applicant is homosexual.

5. The Tribunal is not satisfied that the applicant is homosexual or has ever been homosexual. The Tribunal is not satisfied that the applicant had a relationship with a boy in his home town in Nepal in his youth. The Tribunal is not satisfied that the applicant has revealed that he is homosexual to his family or to his work colleagues. The Tribunal is not satisfied that the applicant hid his sexuality whilst in Nepal. The Tribunal is not satisfied that the applicant visited a gay area in Kathmandu on two occasions and on both occasions witnessed police raids and attacks on gay individuals. The Tribunal is not satisfied that the applicant’s family have pressured him into an arranged marriage, which he is reluctant to enter into based on sexuality. The Tribunal is not satisfied that the applicant has been living as a gay man whilst in Australia.

6. As the applicant’s fear of harm on return to Nepal is based on him being homosexual, and the Tribunal is not satisfied of this, the Tribunal is not satisfied that there is a real risk of significant harm to the applicant based on being homosexual. Therefore, 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 based on his sexuality.

7. The Tribunal considers the alternative position that the applicant is homosexual (which the Tribunal does not accept). The Tribunal proceeds on the basis that the applicant would seek short-term and possibly longer term relationships. The applicant may choose to identify his sexuality at work and to his family. The Tribunal proceeds on the basis that the applicant would not be politically active or involved in community organisations given his own statements that he has had no such involvement in the past including in the freedom of Australia.

8. Based on the independent information, the Tribunal accepts that the applicant may face discrimination and negative attitudes from parts of society and his family. The Tribunal accepts that the applicant’s family may be very upset at the fact that the applicant will not marry and that he is gay and he may even been ostracised. The Tribunal is not satisfied, however, that the applicant’s family would physically harm him. The Tribunal is not satisfied that the applicant, as an adult male, would be forced by his family to marry. The Tribunal accepts that disclosing his homosexuality may create difficulties in employment.

9. However, the independent information does not establish, in the Tribunal’s view, that generically there is a real risk of significant harm to homosexuals in Nepal. The applicant’s own circumstances need to be considered. In terms of family rejection, the applicant is an adult male and has already been separated from his family for a considerable period. The Tribunal does not consider in that context that any disapproval or ostracism by his family would cause or be intended to cause extreme humiliation and thus constitute degrading treatment or punishment (as a defined category of significant harm under the Act). Similarly, the Tribunal does not think that societal disapproval in Nepal of homosexuality is such, as indicated in the independent evidence, that it would lead to real risk of the applicant facing conduct that causes and is intended to cause extreme humiliation and thus degrading treatment or punishment, or any other category of significant harm.  The Tribunal does not consider that there is in anything in the applicant’s profile, as posited by the Tribunal, such that there would be an increased risk to him.

10. In terms of employment discrimination, the Tribunal considers that there may be some hurdles in finding employment if he chose to reveal his sexuality but it does not think that these would be insurmountable. The Tribunal does not consider that employment difficulties or discrimination would create a real risk of the applicant suffering significant harm, as defined.

11. While the Tribunal accepts that there are instances of police harassment, it is not satisfied, based on the independent evidence, that this occurs to an extent that there would be a real risk to any individual gay person facing police harassment amounting to a significant harm. The Tribunal is not satisfied that there is anything in the applicant’s profile, as posited by the Tribunal, such that he would be at any increased risk.  

12. The Tribunal is not satisfied with the applicant’s claims that what actually happens in practice is not reported by the media or more broadly. The Tribunal is satisfied that the independent information referred to in this decision paints a full picture of the situation facing homosexuals in Nepal.

13. The Tribunal does note the proposal in the Draft Criminal Code to make ‘unnatural sex’. There is no clear understanding of what this term means. The proposal has been on foot for several years. The implementation of such a proposal would be inconsistent with the more liberal attitudes by government, courts and society including consideration by the government of legalising same-sex marriage and the Supreme Court mandating abolishing discriminatory laws against homosexuality. The Tribunal, considering these factors, thinks that the chance of a law being enacted that would criminalise some sexuality and it operating to an extent that would create a real risk of significant harm to the applicant is speculative and remote.

14. The Tribunal therefore is not satisfied, if he were gay, that the applicant faces a real risk of harm if he were to return to Nepal that would constitute significant harm for the purposes of the Act. In particular, the Tribunal is not satisfied that the applicant would face a real risk of cruel or inhuman treatment or punishment or degrading treatment or punishment.

15. Therefore, if the applicant is gay, 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 based on being homosexual.

16. In terms of the 2015 earthquakes in Nepal and the impact for the applicant should he return to Nepal, the Tribunal acknowledges this magnitude of this event and the impact it has had on Nepal, and that it would create challenges for the applicant in returning to Nepal. However, in considering the impact of the earthquake for the purpose of seeking protection, the Tribunal is limited to the specific provisions of the Migration Act.

17. The Tribunal is constrained by the definition of ‘significant harm’ for the purpose of the complementary protection criterion. Harm as a consequence of a natural disaster is generally not harm which falls within the definition of significant harm under s.36(2A) of the Act.  It is to be noted that the categories of significant harm being, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ (as defined in s.5 of the Act) require an element of intention to inflict harm.  Hardship following an earthquake, in terms of economic conditions and the like, are generally not conditions that contain the requisite element of intention of the government or anyone else to inflict harm. They are the product of an act of God. 

18. The applicant has claimed that crime is likely to be worse in Nepal. Crime perpetrated against the applicant would have the requisite intention to cause harm. However, no independent evidence has been provided to the Tribunal which would establish that crime levels in Nepal following the earthquake have risen to a level that would create a real risk for any individual Nepalese citizen of ‘cruel inhuman treatment of punishment’ or ‘degrading treatment or punishment’, or any other definition of significant harm for the purposes of the Migration Act. The Tribunal does not consider that the applicant has any particular profile which would raise the risk to him to a real risk of significant harm.

19. The Tribunal, therefore, finds that the applicant does not face a real risk of significant harm on return to Nepal as a consequence of the earthquake.

20. The Tribunal notes that there will be opportunities arising from the earthquake given funds being provided to rebuild Nepal. As a relatively young and healthy man who has worked as a [occupation] in Australia, the Tribunal very much hopes he will be in a position to take advantage of the opportunities that will arise in terms of rebuilding from this devastating event.

21. The Tribunal is not satisfied there is any other basis on which the applicant faces a real risk of significant harm should he return to Nepal.

22. 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).

23. 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).

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

David McCulloch

Member

Blue Diamond Society & Heartland Alliance 2013, The Violations of the Rights of Lesbian, Gay, Bisexual, Transgender, and Intersex Persons in Nepal, June, Section III < Accessed 16 April 2014 <CIS27885>

‘SC verdict lifts taboo on long hair, ear jewellery’ 2013, The Himalayan Times, 8 April, para.5 < <CXC28129414312>>