1414009 (Refugee)

[2016] AATA 3692

1414009 (Refugee) [2016] AATA 3692 (7 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414009

COUNTRY OF REFERENCE:                  Nepal

MEMBER:R. C. Titterton

DATE:7 April 2016

PLACE OF DECISION:  Sydney

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

Statement made on 07 April 2016 at 3:24pm

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] December 2013. The delegate refused to grant the visa [in] July 2014.

3. The applicant appeared before the Tribunal on 19 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

RELEVANT LAW

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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

6. The principal issue in this case is whether the applicant has a well-founded fear of serious harm amounting to persecution for reasons of a Convention ground, or whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia she will suffer significant harm.

EVIDENCE

1. The documents before the Tribunal included the following.

2. First, the applicant’s application for a protection Visa filed [December] 2013. In summary, the applicant states:

   (a)she was born in [Nepal], on [date];

   (b)she arrived in Australia on a [temporary] visa [in] November 2013;

   (c)she left Nepal “for safety reasons”. She married a [man] without her parents approval; and was subsequently disowned by her family;

   (d)after her husband had a sexual relationship with another woman, she decided to divorce her husband. He threatened to kill her if she tried to divorce him; she was “mercilessly beaten”. After continued beatings, she went to the police and to the court but neither was able to grant her protection. As a result she had to escape and fled to Australia;

   (e)she fears that she will be sexually harassed and killed by her husband if she returns to live in Nepal;

   (f)conservative people will mistreat her and look at her as “morally corrupt” if she returns to Nepal; and

   (g)she cannot get protection from the authorities, as domestic violence problem is treated as a family matter.

3. Secondly, the decision of the delegate dated [July] 2014, a copy of which was provided by the applicant to the Tribunal. In summary, the delegate was satisfied that the applicant was a citizen of Nepal, and despite some inconsistencies between her recent claims and her oral evidence at the interview, considered that she was a credible witness. In summary, the delegate accepted that the applicant was a[particular caste], entered into a “love” marriage and not an arranged one, as a family would otherwise expect. Both families opposed the marriage and rejected them as a result. Her husband’s infidelity and worsening violence led her to leave him in May 2013. She fears returning to Nepal due to the serious threats her husband has made to harm her.

4. However, the delegate was not satisfied that Australia had protection obligations to the applicant under the Refugees Convention, or that there was a real risk of her being subject to significant harm should she be returned to Nepal.

5. No other documents were provided to the Tribunal by the applicant, who was not represented at the hearing. No country information was provided by her; no medical reports, or written submissions.

Evidence at the hearing

1. The applicant attended the hearing on 19 October 2015. The applicant is an articulate and credible person who gave evidence (albeit generalised) consistent with her claims of a fear of harm from her husband if she returns Nepal. She explained that she would suffer discrimination if she returned to Nepal from “society”, and said she would be interrogated with “uneasy questions”. She explained that in Nepal, if a married woman does something without her husband’s permission, even leaving the house, people will ask you; this is not taken positively.

2. The Tribunal indicated that it understood that she feared harm from her husband if she returned to Nepal, but asked her to explain what she feared from society generally if she returned. She said that she had a strong feeling she would be mentally tortured, and be called a prostitute by others who disapproved of her leaving her husband.

3. The applicant confirmed that she was born in [her home city]. She is [age] years old. Her parents are still living in Nepal, they are [occupations]. She finished high school in Nepal.

4. She married her husband aged [age], and a [child] was born in the following year. After she was married, she operated a [shop]. She and her husband moved to Khatmandu to get away from their families. Both she and her husband are of the Hindu faith. Both families disapproved the marriage and did not support the applicant and her husband, and they had no further connection with either family. The applicant explained that because of Hindu religion (and to some extent according to traditional Nepalese culture) arranged marriages were organised by parents.

5. For the first two or three years of the marriage, the marriage was a happy one.

6. She told the Tribunal that the claims she had made in her application were true, namely that her husband had a sexual relationship with another woman, and when she told him that she had decided to divorce him, that he assaulted her, and then threatened to kill her.

7. When her husband turned violent, initially she ran away to [her home city], where she stayed with a friend, leaving her [child] with her husband. However, her husband found her five days later. She returned to Kathmandu, but hid in a friend’s house. She again ran away to [her home city] as the beatings continued, but again her husband found and again beat her. She decided to come to Australia where she knew no one and she could run away and hide.

8. The Tribunal discussed what she feared if she returned to Nepal. She said that it was very easy to find people in Nepal and she would not be safe anywhere. She said this in particular is the case for single women who had been abandoned by their family. She has had no contact with her family since she left. She said it would be very difficult for her to find employment, as the unemployment rate was very high. But her main concern was personal security, she considers she would not be safe anywhere in Nepal, and that “society” would find out, and discriminate against her.

9. The Tribunal asked her if she had received any advice prior to the hearing. She said that she had. The Tribunal enquired whether she had received any advice as to which Convention grounds she relied on. After discussion, she indicated that she was a member of a particular social group. The Tribunal enquired what this group was. The applicant said that she was a victim of domestic violence, and faced harm on the basis that she was a member of her husband’s family.

10. The applicant said that if she returned to Nepal, her husband may not find her for a number of months, but then he would find her. The Tribunal asked how he would find her, she said that it was “pretty easy” to find people in Nepal, that there were “friends’ circles” that allowed this to happen, and that Nepal was a tiny country.

11. The Tribunal discussed with the applicant whether she would be safe anywhere in Nepal, and whether she could relocate in Nepal; she said that a woman, admonished by her family, would find it very difficult to be safe in Nepal. The Tribunal specifically asked whether she would be safe in Dhankuta (which is a small city of approximately 17,000 people in the Dhankuta District of Eastern Nepal) or in Biratangar (the fifth largest city with a population of 200,000). The applicant said that it would not be hard for her husband to find her, as “society” would find out, and then she would be discriminated against. The Tribunal asked if there was a registration system for residents (similar to the Chinese hukou). The applicant said that there was not.

12. The Tribunal asked if her husband had tried to make any contact with her while she had been in Australia. She said no, but he had approached her friend in Nepal. The Tribunal asked if he had made threats to her through her friend. She said that he had, and said that he will murder her, and then kill himself.

13. He has never threatened their [child], but the [child] suffers from psychological problems (described by the applicant as “mental torture”). The Tribunal asked her if she would attempt to see her [child] if she returned to Nepal. She said that “obviously” she would like to see her [child] if she returned, but she thought that she would not have the opportunity to do. The Tribunal asked her what she seriously thought her husband would try to do to her if she returned. She said that she had a strong feeling that if she returned he would treat her as he did before, possibly in an even more extreme way.

14. The applicant currently works sometimes in [Australia] as [occupation], and sometimes as [occupation] in a [workplace]. She said that it would be very difficult to find employment in Kathmandu, where the unemployment rate was very high. But she said her main issue was security, the Tribunal understanding this to mean being safe from her husband’s threats.

15. At the conclusion of the hearing the applicant indicated that, if she returned to Nepal, she would face harm from her husband, and discrimination from society. She said that it was up to “you guys” (presumably meaning the Tribunal) how her situation was analysed.

CONSIDERATION

1. As indicated, the Tribunal generally accepts the applicant as a witness of credit. While much of her evidence was generalised, her demeanour and her responses were consistent with her claims.

2. The Tribunal sighted a photocopy of the applicant’s passport bearing her name and date of birth issued by the (then) Kingdom of Nepal. In the circumstances, the Tribunal is satisfied that the applicant is a citizen of Nepal and that the appropriate country of reference for the assessment of her refugee claims, and the receiving country for the purpose of her complementary protection claims, is Nepal.

3. There is nothing in the evidence to suggest that the applicant has a right to enter or reside in any other country other than Nepal. Therefore, Tribunal finds that the applicant is not excluded from Australia’s protection by s.36(3) of the Act as she is a citizen of Nepal.

4. The applicant claims that she would be harmed by reason of being a member of a particular social group. The meaning of the expression 'for reasons of ... membership of a particular social group' was considered by the High Court in Applicant A v MIEA (1997) 190 CLR 225 and Applicant S v MIMA (2004) 217 CLR 387. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

   First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …

5. Whether a supposed group is a 'particular social group' in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However, it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person's membership of the particular social group.

6. While the Tribunal accepts that the applicant has a genuine fear of harm, the Tribunal is not satisfied that the applicant’s husband would harm her for reason of her membership of a particular social group. The applicant described the circumstances in which her husband would harm her. The Tribunal is satisfied that the applicant’s husband is a violent, aggressive person and that there was a personal dynamic within the relationship leading him to harm her because of his own violent tendencies, rather than by reason of being a member of a particular social group. When the Tribunal discussed with the applicant at the hearing its concerns that her husband would harm her for personal reasons, rather than any Convention reason, she said words to the effect of “is he allowed to beat me?”

7. The Tribunal has also turned its mind to possible claims, not articulated by the applicant, that she may face serious harm by reason of being a member of some other social group, such as women who enter into “love marriages” without their parents’ approval, or women who leave their husbands. These claims do not appear to be available on current country information.

8. The Tribunal is not satisfied that the applicant’s husband would harm the applicant because of her membership of any particular social group or for any other Convention reason.

9. However, women suffering violence in such situations as the applicant may nevertheless, depending on the circumstances, come within the scope of the Convention: Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1. In that decision, a majority of the High Court held that the Convention test may be satisfied by the selective and discriminatory withholding of State protection for a Convention reason from serious harm that is not Convention related. Importantly, s.91R(1)(c) of the Act refers to systematic and discriminatory conduct. It is not sufficient to show maladministration, incompetence or ineptitude by the police or that the failure to protect is due to a shortage of resources. What is required is State toleration or condonation of the persecution in question and systematic and discriminatory implementation of the law: per Gleeson, CJ at [26] and per McHugh and Gummow JJ at [84] to [87]. The applicant has contended that she will not be afforded protection by State authorities from harm by her husband.

10. The Tribunal asked the applicant about this. She said that the Nepalese government was corrupt, and responded to the wealthy. She said that she was not wealthy.

11. The Tribunal has considered whether the country information supports a finding that there will be selective and discriminatory withholding of State protection for a Convention reason.

12. The Tribunal notes that in Tribunal decision 1409074 the Tribunal referred to reports referencing the difficulties faced by women in Nepal, particularly with regard to domestic violence, and that the reason that women continue to face serious harm in Nepal was because of the patriarchy value system which remains deeply entrenched in the social, cultural, religious, economic, political institutions and structures of Nepal society. An Australian Government Advice for Nepal which states that:[1]

    Nepali police forces have limited resources and lack sufficient manpower to effectively enforce law and order. Generally, domestic violence is underreported and goes unpunished. The majority of domestic violence cases are settled through mediation rather than legal action. Police officers are reluctant to treat domestic violence as a criminal offence because of entrenched discriminatory attitudes. Additionally, police are insufficiently trained and have minimal resources to deal with victims of domestic violence and trafficking.

    [1] Country advice, Nepal, 11 September 2012

13. A further advice states:[2]

    a number of factors, such as police attitudes, corruption, bribery, impunity, political intimidation and legal weaknesses, contribute to the ineffectuality of protection for women. The extent of police corruption and political intimidation indicates that police could be bribed not to prosecute violence against women cases. Women reportedly rarely have access to money to pay bribes and are also politically marginalised.

    [2] Country advice, Nepal, 17 February 2011

14. An Australian Government Background paper on Nepal dated July 2012 states:

    Discrimination against women in Nepal remains common, particularly in rural areas. In 2010, the Internal Displacement Monitoring Centre (IDMC) reported that women in the Kathmandu Valley displaced by conflict: ‘were struggling to find proper accommodation or access basic services. They were also exposed to trafficking, sexual exploitation, discrimination and child labour’. While women account for approximately 40 per cent of the total work force in Nepal, they tend to occupy lower status jobs, and are paid less than men.

    . . .

    Domestic violence against women remained a serious problem during 2010, and while cases were seldom reported, anecdotal evidence suggested that physical and verbal abuse was common. Legislative weaknesses and inadequate policing have obstructed prosecution of domestic and sexual violence cases. Police have reportedly refused to record cases of violence against women or provide information on the status of such cases to human rights defenders. The government has taken few steps to curb violence against women or to assist victims; generally, authorities do not prosecute domestic violence cases. In 2010 the Nepal government formulated a national plan of action to implement 12 critical areas of concern, one being violence against women, and in January 2011 the Prime Minister reaffirmed the government’s commitment to dealing with the issue of violence against women in a coordinated manner. At the time of writing, no information was found on whether reforms have been developed and implemented. Reports indicate that various forms of gender related discrimination continued to occur in 2011, particularly: domestic violence; forced prostitution; abduction and trafficking of women; stigmatisation of victims of trafficking; and forced marriage.

1. Given this information, the Tribunal is not satisfied that the Nepalese Government or authorities withhold protection from women who are being threatened with domestic violence in a systematic and discriminatory manner, or that that there is State toleration or condonation of the persecution in the sense described in Khawar.

Conclusion

1. In the circumstances, having considered all the information before it, and having considered the applicant’s circumstances both individually and cumulatively, for the reasons given above, the Tribunal is not satisfied that if the applicant were to return to Nepal there is a real chance of serious harm for any of the reasons she has advanced. 

2. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason should she return to Nepal, now or in the reasonably foreseeable future.

COMPLEMENTARY PROTECTION

1. The applicant has made no other claims to fear apart from those which the Tribunal has rejected as set out above. The Tribunal has also considered the alternative criterion in s.36(2)(aa) of the Act. In determining whether the applicant meets the complementary protection criterion under the Act, the Tribunal has considered whether, in light of my findings above, 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 the applicant will suffer significant harm.

2. Significant harm for these purposes is exhaustively defined in s 36(2A) of the Act: see s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on them; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

3. The Tribunal accepts that the harm the applicant claims to fear from her husband is significant harm for the purposes of the Act. However, the Tribunal is not satisfied on the material before it 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 she will suffer significant harm for any of the reasons she claims. This is because the applicant has not claimed that she will live with her husband if she returns to Nepal and, significantly, she does not claim that she will attempt to visit her [child], who resides with the father. Nor does the Tribunal accept that her husband will take steps to find her, or harm her, if she does return to Nepal. Furthermore, for the reasons appearing above, the Tribunal is not satisfied that the Nepalese Government or authorities withhold protection from women who are being threatened with domestic violence in a systematic and discriminatory manner, or that that there is State toleration or condonation of such violence. The Tribunal finds that there would not be a real risk she will suffer significant harm as she could claim protection from Nepalese authorities such that there would not be a real risk that she would suffer significant harm: s 36(2)(B)(b).

4. The other claims advanced by the applicant include her abandonment by her family and the difficulties of finding employment. The Tribunal does not accept that either of these matters, or any other claim advanced by the applicant (including the claims not articulated by her referred to at par [36] above, constitute significant harm within the meaning of the Act.

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

CONCLUSIONS

1. 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).

2. 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).

3. 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.

R. C. Titterton
Member