1412281 (Refugee)

[2015] AATA 3251

1412281 (Refugee) [2015] AATA 3251 (28 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412281

COUNTRY OF REFERENCE:                  Nepal

TRIBUNAL MEMBER:  David McCulloch

DATE:28 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 28 July 2015 at 12:16pm

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

3. The applicant appeared before the Tribunal on 25 June 2015 to give evidence and present arguments.

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.

Claims and submissions

1. The applicant arrived in Australia [in] November 2008 on a Student Visa. The applicant made the claim for a Protection visa [in] August 2013.

2. The applicant provided a ‘statement of purpose’ as part of his application to the Department for a protection visa which provided the following information.

3. The applicant in Nepal lived at [location].  The applicant has a political background. As a politician, he used to work as [an official for Association 1]. This organisation is considered a sister wing of the Nepali Congress party. The applicant had to walk for an hour and a half through a rural area to teach at a private boarding school. This area was beyond the reach of security forces and Maoists were ‘creating horrors and terrors in the village.’  They would start to threaten teachers.

4. The applicant used to train youths and teachers affiliated with the right wing to discourage Maoists.  The applicant was responsible politically to upgrade democratic norms and values in the village. All of this made the applicant a target of Maoists.  A key issue of concern for the Maoists was the private school that the applicant taught at, which the Maoists objected to. The Maoists began to ask half the pay of teachers. The applicant refused payment on his own behalf and on behalf of staff.

5. [In] October 2003, Maoists stopped the applicant on the way to school and threatened either to close the school, or that there would be physical action. When the applicant arrived at school he had a meeting with shareholders and came to the conclusion to keep the school running. [In] November 2003, the applicant was abducted whilst at school. He was taken to a camp and treated very badly including being severely beaten. [In] November, the Maoists carried the applicant near to the school on the bank of the river where he was received by villagers. The applicant has provided a photograph taken by one of the villagers. Applicant was taken to the nearest health post for treatment.

6. The applicant decided to leave the area as a result. The applicant shifted rented rooms four times a year thinking that the Maoists may get information about his activities. Eventually the applicant got a student visa to Australia.

7. The applicant had decided to leave Nepal forever. Initially, the time in Australia was happy. After a few months, the applicant learnt that his wife was in love with someone else. The applicant’s wife returned to Nepal to be with that person. The applicant’s grandparents passed away, his mother was hospitalised and the applicant was unable to return due to fear of Maoists. The applicant was unable to think about his visa. The applicant then consulted with an immigration agent and lodged the visa.

8. The applicant provided a document dated [in] May 2014 on the letterhead of the Nepali Congress which indicates, in English, that the applicant was an active [official for Association 1] affiliated to Nepali Congress. It states that the applicant was abducted by Maoists [in] November 2003. The document is signed by [a named official].

9. Provided to the Tribunal is a statement from [Mr A], who indicates that he is the brother of the applicant, currently living in [another country]. The statement seeks to confirm the applicant’s claim that he was attacked by Maoists.   He indicates that the applicant’s leg was severely injured and that he visited him in hospital in Kathmandu.

10. The applicant provided a note from the [an Australian medical facility in] May (year not specified), indicating that the applicant is suffering from agoraphobia and anxiety.  It indicates that the applicant told the practitioner that he was abducted by Maoist rebels whilst teaching in Nepal which would cause these issues.

11. During the interview with the delegate of the Minister, the applicant confirmed that after he left the school, he moved to [Kathmandu], where he obtained a job in a school. This job commenced in April 2004 and he left that job in May 2008. Whilst in Kathmandu, the applicant was also engaged in studying for a [tertiary] degree.

12. The applicant, in the interview with the delegate of the Minister, indicated that when he was in Kathmandu he had no specific problems from Maoists or any other persons or groups. The applicant did refer to the general problematic security situation in Kathmandu, including bombs going off. The applicant believed he would be at risk if he returned to his home area. The applicant indicated that he continued to suffer significant anxiety as a result of his abduction, and this anxiety continues during his time in Australia. The applicant is on medication for this anxiety. The applicant has a fear interacting generally because of this anxiety. The applicant’s health problems in this respect are the key reason that the applicant has a fear of returning to Nepal. The applicant acknowledged, however, that there would be no problem for him in Nepal accessing relevant medication.

13. The applicant indicated that, given that his mother and grandparents have passed away, that he will be isolated in Nepal. He says that he will have no life if he returns to Nepal.

14. In terms of why the applicant waited from 2008 to 2013 to apply for protection, he said that he had his student visas and these allowed him to stay. It was after his sponsor, his grandfather passed away, that he thought that he cannot go back to Nepal and applied for protection.

15. The applicant provided a written submission to the Tribunal in advance of the hearing. It makes submissions on the finding of the delegate of the Minister that the applicant had a right to enter and reside in India and to live in India safely without fear of return to Nepal.

Independent information – political violence in Nepal

1. The following information is provided from a Background Paper – Nepal: Maoists in Nepal, prepared by the former Country Advice section of the Tribunal, issued 7 June 2013 and reviewed in December 2013:

   Violence and intimidation remain features of Nepal’s political landscape; though no longer on the scale that it was prior to the 2008 constituent assembly elections, or during the war.[1] Members of the UCPN-M [Unified Communist Party of Nepal – Maoist] and associated groups have contributed to this culture of violence; the ICG posits the argument that as cadres of a Maoist revolutionary party, some members of the UCPN-M continue to believe that violence can be a legitimate political tool, particularly as a means to “resist oppression”.[2] Another contributing factor to Nepal’s violent political culture is the ongoing impunity enjoyed by cadres of numerous political parties.[3]

   Prachanda and other leaders of the UCPN-M have stated that political violence needs to be eliminated; indeed following the pre-election violence of 2008, Prachanda reportedly stated that violence perpetrated by Maoist cadres and the YCL had undermined the legitimacy of the party, and he vowed to de-militarise the YCL.[4] While the level of political violence no longer reaches the levels of 2008, UCPN-M cadres, particularly in remote regions of Nepal, continue to be implicated in violent acts against political rivals and others, including journalists.

   [1] Racovita, M et al 2013, In Search of Lasting Security: An Assessment of Armed Violence in Nepal, May, pp.17-18, 21 < Accessed 22 May 2013

   [2] International Crisis Group 2010, Nepal’s Political Rites of Passage, Asia Report N°194, 29 September, pp.4-5, 7-10 <Attachment>; see also Racovita, M et al 2013, In Search of Lasting Security: An Assessment of Armed Violence in Nepal, May, pp.17-18, 21 < Accessed 22 May 2013

   [3] United Nations 2011, Report of the United Nations High Commissioner for Human Rights, 16 December, p.15

   [4] Bangerter, O 2012, Internal Control: Codes of Conduct within Insurgent Armed Groups, Small Arms Survey, November, p.49 < Accessed 19 April 2013; Upreti B R & A 2012, Conflict, Transition, and Challenges to Nepal’s Peace Process, January, p. 14, Nepal Centre for Contemporary Research < Accessed 27 May 2013

2. More recent information about political violence in Nepal is contained in a report prepared in January 2015 by the Country of Origin Information Section of the Department of Immigration and Border Protection in response to a request from the Tribunal. It contains the following information.

   Reports located indicate that inter-party violence amongst Maoists and the Nepali Congress has diminished considerably in recent years. During 2014, there were no reports of inter-party violence in general across Nepal.

   According to the South Asia Terrorism Portal’s 2015 assessment of Nepal, no violent inter-party clashes were reported during 2014:

   The successful holding of elections for the second Constituent Assembly (CA) on November 19, 2013, have, in some measure, transformed the political environment of the country and diminished violent inter-party clashes. As against 22 such clashes resulting in four deaths and 167 injuries in 2013, no such clashes were reported through 2014.[5]

   South Asia Terrorism Portal’s 2014 assessment of Nepal reported that 2013 was the first year of no reported insurgency-related violence. Political violence however did increase during 2013:

   … political violence did increase considerably during 2013. Activists of political parties clashed with each other on at least 22 occasions resulting in four deaths and 167 injuries. There were four such incident resulting in seven injuries and no fatalities in 2012. Further, activists of political parties clashed with law enforcement personnel on at least four occasions in 2013, with 14 persons injured.[6]

   On 27 May 2013, Business Standard reported that the ‘Nepali Congress today accused UCPN-Maoist cadres of attacking its youth leader and abducting an ex-Maoist who had defected to the party’. Repordedly, Maoists pelted stones at the vehicle that the youth leader and central committee member Gagan Thapa were in. Additionally, Jeevan Khatrichhetri, who defected from the UCPN-M was reportedly abducted by the UCPN-M.[7]

   The recent attempts to promulgate a constitution resulted in UCPN-M led violent outbreaks and nationwide protests:

   … In a clear manifestation of growing political volatility in the Republic, opposition members of the CA, led by UCPN-M, vandalized Parliament and attacked ruling party leaders and security staff, leaving four security staff members injured, on January 20, 2015. Again, on January 22, 2015, opposition CA members threw microphones and shoes at the members of the ruling alliance. On this day, protests also erupted across Nepal, in which several persons were injured and a substantial quantum of property was damaged. In fact, as the deadline for the Constitutional draft approached, protests and bandhs (general strikes) became the order of the day. Significantly, during one such bandh enforced by the UCPN-M-led alliance, which turned violent in several parts of the country, a protester, identified as Rajaram Jha (25), died at Bhramarpurachok in Dhanusha District on January 12, 2015.[8]

   According to a 25 February 2015 report, the UCPN-Maoist youth wing (Young Communist League) staged a March in Kathmandu on 24 February to express their intent to rally on February 28.[9] The 28 February protests resulted in injuries to several policemen, protestors and onlookers as police baton charged and used tear-gas to control protestors in New Baneswaor.[10]

   [5] South Asia Terrorism Portal 2015, Nepal Assessment 2015, n.d., para.2 < Accessed 27 February 2015 CISEC96CF1246

   [6] South Asia Terrorism Portal 2014, Nepal Assessment 2014, n.d., para.2 < Accessed 27 February 2015 CIS2F827D92146

   [7] ‘Nepali Congress claims Maoists attacked party leaders’ 2013, Business Standard, 27 May, para.8 < Accessed 27 February CXC28129413976

   [8] South Asia Terrorism Portal 2015, Nepal Assessment 2015, n.d., para.2 < Accessed 27 February 2015 CISEC96CF1246

   [9] Jayshi, D 2015, ‘Nepal Maoist youth wing stages show of strength’, The Hindu, 25 February, para.1 < Accessed 27 February 2015 CXBD6A0DE2008

   [10] ‘Opposition Protest’ 2015, Nepali Times, 28 February, para.5 < Accessed 3 March 2015 CXBD6A0DE2133

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

2. The Tribunal has a number of significant concerns with the applicant’s evidence about being abducted by Maoists and suffering injuries in November 2003.

3. First, the applicant has provided inconsistent evidence as to the number of people who abducted him. In the interview with the delegate of the Minister, the applicant said two people abducted ‘us’. In the Tribunal hearing, the applicant said that he and two colleagues were abducted by seven to eight men with guns. This is a significant inconsistency. 

4. In a letter to the applicant following the hearing, the information provided by the applicant in the interview with the delegate of the Minister that two people abducted him in the November 2013 incident was put to the applicant in accordance with the procedural requirements of s.424A of the Act.  It was noted that this information was inconsistent with other evidence given by the applicant. It noted that the consequence of the Tribunal relying on this information is that it may make adverse findings as to the applicant’s credibility on this specific point, and more generally. No response was provided by the applicant to the letter within the required timeframe.

5. Second, the applicant has provided inconsistent accounts of being taken back to the school by Maoists, from their camp.  In the applicant’s written statement he said that the Maoists carried him to near to the school (presumably because of severe beating he said he sustained and injury to his leg). In the Tribunal hearing, the applicant said that he walked back with the Maoists.  When the inconsistency was pointed out to the applicant in the hearing, he indicated that he was escorted back by Maoists with his hands tied behind his back, which is what he meant by the word ‘carried’.  The Tribunal considers that the word ‘carried’ has a specific meaning and considers that the applicant’s evidence has been inconsistent in this respect.  The applicant demonstrated his knowledge of English in the hearing.

1. Thirdly, the applicant provided differing evidence as to the severity of the injuries on his leg and the nature of the treatment he received. In the Tribunal hearing, the applicant confirmed that he walked back to the school with the Maoists from their camp, which took about five or six hours, and not much longer than it took the applicant to get there. The Tribunal indicated that that would not suggest a particularly significant injury to his leg.  Nor is it consistent with the applicant’s claim of receiving a severe beating. The applicant said that he was assisted and went more slowly. This is not consistent with the applicant’s evidence elsewhere in the hearing that it did not take much longer to get back from the camp than it took to get there. 

2. The applicant in the hearing confirmed that he received treatment from a local hospital, which required a two to three-hour walk to get to. He indicated that there was a fracture on his leg, which was bandaged. In contrast, the applicant indicated in the interview with the delegate of the Minister that he was incapacitated for one and half months from his injuries. This is not consistent with the applicant being able to walk the five or so hours back from the Maoist camp or to be able to walk to three or so hours to the hospital. When it was put to the applicant in the Tribunal hearing that he had previously claimed incapacity for one and a half months, he indicated that he suffered difficulties for a couple of weeks.

3. In a letter to the applicant following the hearing, the information provided by the applicant in the interview with the delegate of the Minister that he was incapacitated for one and a half months as a result of his injuries in the November 2003 incident was put to the applicant in accordance with the procedural requirements of s.424A of the Act.  It was noted that this information was not consistent with the applicant stating that he walked the 5 to 6 hours back from the Maoist camp, and is not consistent with his indication in the Tribunal hearing that the injuries caused him to suffer difficulties for a couple of weeks. It noted that the consequence of the Tribunal relying on this information is that it may make adverse findings as to the applicant’s credibility on this specific point, and more generally. No response was provided by the applicant to the letter within the required timeframe.

4. The Tribunal asked the applicant about medical treatment he received for his injuries in Kathmandu. He said that he would go to a pharmacy for a checkup. He indicated that a pharmacy is different from a pharmacy in Australia and provides more clinical services, but he indicated that he only went for checkups that took one or two hours, and that he was never admitted overnight.

5. The Tribunal notes that the statement provided to the Tribunal from the applicant’s brother, [Mr A], states that when he met the applicant, his leg was severely injured due to a Maoist attack. It indicates that he visited the applicant when he was hospitalised. When it was put to the applicant in the hearing that his brother’s statement that he was hospitalised in Kathmandu is inconsistent with his evidence to the Tribunal, the applicant indicated that his brother visited him whilst he attended the pharmacy and that is probably what he meant by being hospitalised. The Tribunal has doubts about this explanation.  It finds it unlikely that the applicant would be visited in a pharmacy, equivalent to a doctor’s surgery as part of a one to two hour visit.

6. The applicant had wanted his brother to give evidence to the Tribunal as a witness by telephone from [another country], where he lived. The Tribunal sought to contact [Mr A] several times by telephone during the course of the hearing at the telephone number provided by the applicant, but without success. The number diverted to an answering machine. The applicant indicated that he had arranged for his brother to be at home on the day of the Tribunal hearing but, in exploring this further with the applicant, it appears that the applicant did not make specific arrangements as to the time of the call in light of time zone differences.

7. The Tribunal canvassed with the applicant’s his brother’s knowledge of the applicant’s circumstances. The applicant indicated that he was not close to his brother, that his brother did not have direct knowledge of the events surrounding his abduction, and all his brother was able to say was what was referred to in his statement.

8. The Tribunal indicated that in the absence of arguments to the contrary it was not proposing to conduct a further hearing to hear from the applicant’s brother. No submission contrary was made by the applicant or his adviser.

9. Whilst the Tribunal has not had the opportunity to question the applicant’s brother about his claim that the applicant was hospitalised, and to explore the applicant’s contention that this meant he was visited in the pharmacy, it has doubts about the applicant’s evidence concerning the nature and severity of his injuries in light of the other inconsistencies in the evidence on this issue.

10. Fourth, inconsistent evidence has been provided concerning when the applicant fled to Kathmandu. In the Tribunal hearing, the applicant indicates that he left for Kathmandu several days after the kidnapping in November 2003. In the interview with the delegate of the Minister, the applicant indicated that he was incapacitated for one and a half months, and his family gave him money to travel to Kathmandu. The applicant’s application form for his student visa in the list of his employment details indicates that he was employed at the school in his local area until April 2004.

11. The applicant in the hearing pointed a letter to the Tribunal from his employer, provided as part of his student visa application, stating that he was employed at [a named school] from (Nepalese years) 2059 to 2061 and argued that this demonstrated that he left employment in 2003. The applicant acknowledged that 2061 is 2004 in the Gregorian calendar, but argued that the reference in the letter is the period up until when he left, and therefore it confirms that he left in 2003. The Tribunal does not accept this argument. The clear meaning of the letter is that the applicant left employment in 2004 which is consistent with the information provided in the student visa application form, and inconsistent with the applicant’s claim that he left the area in November 2003.

12. In a letter to the applicant following the hearing, the information provided by the applicant in the interview with the delegate of the Minister that he was incapacitated for one and a half months as a result of his injuries in the November 2003 incident, after which his family gave him money to travel to Kathmandu, was put to the applicant in accordance with the procedural requirements of s.424A of the Act.  It was noted that this information was relevant because it suggests that the applicant remained in his local area for at least a month and a half after the November 2003 incident, which is inconsistent with the claim in the Tribunal hearing that he left Kathmandu several days after the kidnapping in November 2003. It noted that the consequence of the Tribunal relying on this information is that it may make adverse findings as to the applicant’s credibility on this specific point, and more generally. No response was provided by the applicant to the letter within the required timeframe.

1. Considering all of these four issues, the Tribunal is not satisfied that the applicant has been a truthful witness in relation to his account of being kidnapped by Maoists in November 2003 and suffered severe, or indeed any, harm, and had to flee immediately to Kathmandu as a result.

2. The Tribunal gives little weight to the letter provided by the Nepali Congress dated May 2014 which makes reference to the applicant being abducted by Maoists in 2003 given that it is information provided nine years after the events supposedly occurred.

3. The Tribunal gives no weight to the photograph the applicant has provided of him which he says was taken when he was delivered back by Maoists to the school. All the photograph shows is a picture of him in a rural setting which could have been taken at anytime and anywhere.

4. Given the credibility issues with the applicant’s evidence surrounding what happened in November 2003 the Tribunal is not prepared to accept that the applicant and his colleagues were extorted for money and/or their salary by Maoists.

5. In terms of the situation that the applicant faced in Kathmandu, the applicant indicated in the hearing that he suffered no harm nor he was contacted by Maoists, but he feared from Maoists, as his family were contacted by them back at home and they indicated that they wanted to cause him harm. The applicant indicated that he lived in several different locations in Kathmandu due to his fear.  The Tribunal put to the applicant that it seemed inconsistent with him needing to move constantly, that he worked at the same school from 2004 until 2008 and studied at the same educational institution. The applicant indicated that the school was located in an area near to where the military were located, and this made it secure, and he only attended university occasionally.

6. When asked if he was politically active in Kathmandu, the applicant said that whilst he was not a high profile political activist, he was politically active in [Association 1] and at university. He said that he belonged to right-wing cadres. When the Tribunal put to the applicant that this seemed inconsistent with him having a fear of Maoists and wanting to keep a low profile, he said he had a fear but still wanted to undertake these activities.

7. The Tribunal is not satisfied, considering its findings relating to the abduction in 2003, and considering the evidence relating to the applicant’s activities in Kathmandu, that the applicant has been truthful that he was in fear of Maoists whilst in Kathmandu, noting that the applicant taught at the same school, attended the same educational institution, and engaged in political activities. The Tribunal does not accept that the applicant constantly moved where he was living because of fear of Maoists. The Tribunal does not accept that the applicant’s family were contacted by Maoists threatening harm to the applicant.  The Tribunal does accept the applicant’s own evidence that he suffered no harm or threats from Maoists during his time in Kathmandu from 2004 until he left for Australia in 2008.

8. The Tribunal is prepared to accept that the applicant has had some political involvement with [Association 1] and with the Nepali Congress both in his home area and in Kathmandu. In Kathmandu the applicant said he was not a high profile political member. The Tribunal is not satisfied, however, that the applicant has ever been harmed by or threatened by Maoists or any other groups or individuals as a result of his political involvement.

9. The Tribunal put to the applicant in the hearing that even if it was to accept the abduction in 2003, the applicant had suffered no difficulties whilst in Kathmandu from 2004 until 2008.  It indicated that this lack of difficulty would suggest that there was not a risk of harm should the applicant return to Nepal today, given that the incident in which he claims to have suffered harm happened in 2003. The Tribunal summarised the independent evidence contained in this decision that political violence has declined significantly in recent years, with one source indicating no insurgency violence taking place at all in 2014.

10. The applicant pointed out that he was persecuted by Maoists in the past and this creates continuing suffering. The applicant referred to him suffering the effects of trauma and being diagnosed accordingly in Australia. The Tribunal indicated to the applicant it had noted the medical report that he had provided. The applicant said that his condition was better now.

11. Given the Tribunal’s findings that the applicant was not kidnapped by Maoists in 2003 or threatened or extorted by them, and that he was not threatened or extorted whilst in Kathmandu, the Tribunal is not satisfied that the applicant’s psychological conditions are due to harm or threats of harm by Maoists.

12. The Tribunal noted to the applicant in the hearing that he had waited from 2008 until 2013 to claim protection. The applicant said that he wanted to see how the situation progressed. He indicated that his grandparents and his mother died and this was a reason not to return. The Tribunal pointed out that the claim that he wanted to see how the situation progressed is not consistent with his written claims in which he says he left Nepal never intending to return.

13. The Tribunal draws significant adverse inference from the applicant waiting five years from arrival in Australia to claim protection. This strongly suggests to the Tribunal that the applicant did not have a subjective fear of harm and goes to whether there was an objective fear of harm.

14. Given that the Tribunal is not satisfied that the applicant was subject to a kidnapping by Maoists in 2003, that he has not been subject to requests for money or for part of his salary, that he was not subject to any threats or harm by Maoists whilst in Kathmandu from 2004 until 2008, the Tribunal is not satisfied that there is any past threat or harm that has occurred to the applicant that would provide a real chance of serious harm in the reasonably foreseeable future from Maoists should the applicant return to Nepal.

15. While the Tribunal is prepared to accept that the applicant has been politically active with organisations associated with the Nepali Congress, the Tribunal is not satisfied, based on the independent evidence and the applicant’s profile as a political operative, that the applicant faces a real chance of serious harm should he return to Nepal as a result of any ongoing political activity.

16. The applicant stated in the interview with the delegate of the Minister that in Kathmandu he held a general fear as a result of the security situation, and the fact the bombs went off. Independent information does not support the contention that any individual citizen in Nepal today is at a real chance of serious harm as result of the general security situation and the Tribunal does not consider there is a real chance of serious harm to the applicant on that basis.

17. As indicated, the Tribunal is not satisfied that any psychological issues the applicant has faced have been caused for the reasons associated with his claims of fear of harm from Maoists. The Tribunal is not satisfied that the applicant faces a real chance of serious harm as a result of psychological issues for a Convention reason.

18. There is no other basis on which the Tribunal is satisfied that the applicant faces a real chance of serious harm.

19. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason as a result of his political activity, past harm, threats, or donation requests from Maoists, or psychological conditions.

20. Having considered the Refugees Convention criterion, the Tribunal considers the complementary protection criteria. For the same reasons, the Tribunal is not satisfied that there have been past threats or harm from Maoists that provide a basis for a real risk of significant harm to the applicant should he return to Nepal.

21. The Tribunal is not satisfied that should the applicant continue political activities as an ordinary member involved in the Nepali Congress or is associated organisations that he is, based on independent evidence and his own profile, at a real risk of significant harm.

22. The Tribunal is not satisfied that independent evidence before it establishes that the applicant would be at a real risk of significant harm as a consequence of the general security situation in Nepal.

23. The Tribunal is not satisfied that any psychological conditions which the applicant may suffer should he return to Nepal constitutes significant harm for the purpose of the complementary protection criteria, given its view of the lack of intention of any person or group to cause the applicant either physical or mental pain or suffering.

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

25. 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 for reasons of political activity, past harm, threats or donation requests from Maoists, or psychological conditions, or for any other reason.

26. 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 Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

27. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

28. 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

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

David McCulloch
Member