1414111 (Refugee)

[2015] AATA 3190

1414111 (Refugee) [2015] AATA 3190 (22 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414111

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Fraser Syme

DATE:22 July 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 22 July 2015 at 12:53pm

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

3. The applicant appeared before the Tribunal on 17 July 2015 to give evidence and present arguments.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. There is no assessment published for Nepal.

9. The issue in this case is whether the applicant meets the definition of a refugee or is entitled to complementary protection.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

10. In making its findings, the Tribunal is mindful the applicant was [age] years old at the time of the hearing. The Tribunal is mindful too that whenever evidence is received in a language other than the applicant’s first language there is always room for differences in meaning and nuance. The Tribunal is satisfied the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way.

11. The Tribunal finds the applicant is a national of Nepal. He provided a copy of his Nepalese passport. He made no claim to be a national of any other country but had resided in [another country] during his high school and university years. Given the Tribunal has found below the applicant does not face a real chance of persecution or real risk of significant harm, it is unnecessary for the Tribunal to be satisfied whether he does not have a right to enter and reside in any other country for the purpose of s.36(3). The Tribunal accepts the applicant’s claims should be assessed against Nepal for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered his home town, the place he resided for the majority of his life and where he said his wife and children still reside, to be his home region in Nepal.

12. The Tribunal accepts that ‘applicants for refugee status face particular problems of proof as an applicant may not be able to support his or her statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.’  The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status). The Handbook further states:

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

13. The Tribunal acknowledges, while it may have regard to the Handbook, the Handbook is not binding. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, see Randhawa v MILGEA (1994) 52 FCR 437.

14. During the hearing, the Tribunal put to the applicant that his credibility was an issue.

    Well-founded fear of persecution

15. The applicant has consistently claimed he fears to return to Nepal because he will be harmed by Mr R. According to the applicant, he has known Mr R since childhood and that Mr R is a notorious criminal. The applicant wrote a newspaper article exposing wrongdoing by Mr R as president of a club of which they were both members. Mr R harmed the applicant’s [child] and murdered the applicant’s [relative]. At the beginning of the hearing, the applicant said Mr R has since become more powerful. He explained Mr R has been involved in extorting property developers in their hometown and he believed Mr R was now underground, hiding in [another country].

16. The Tribunal discussed with the applicant at the hearing some difficulties it had with his claims, including:

17. Police action against Mr R: The applicant’s earlier evidence was that Mr R had been arrested many times in the past for offences related to alcohol, drugs, gambling and prostitution, but was released from jail after paying bribes. He claimed too that when his wife attempted to make a police report against Mr R for harming their [child] in 2011 and the fatal attack on the applicant’s [relative] in 2013, the police refused to take the report. The applicant further claimed that on the occasions of Mr R harming the applicant’s [child] and [relative], Mr R went into hiding for about 1 month. The Tribunal put to the applicant on the one hand it was asking it to accept Mr R had been arrested many times for relatively small crimes, but no police action is taken for serious crimes of bodily harm to his [child] and effectively murder of his [relative]. Moreover, despite the applicant’s claim Mr R was powerful enough to avoid police action for the serious crimes, Mr R still went into hiding. The Tribunal thought it inconsistent that Mr R on the one hand is not powerful enough to avoid being arrested for small crimes, but powerful enough to avoid being arrested for serious crimes – yet still felt the need to go into hiding. The applicant replied that the police are corrupt and the government and political system in Nepal were going through revolution. He thought too that Mr R may have gone into hiding as a kind of diplomatic step. The Tribunal noted it was willing to accept the police in Nepal are subject to corruption, but that did not explain why the corrupt police arrested Mr R for small crimes but not serious crimes. The Tribunal commented the inconsistency in his claims regarding the police action against Mr R caused it to doubt the genuineness of his claims.

18. Power of Mr R in the club: The applicant’s earlier evidence is the Mr R used his power and corruption to become president of the club in 2006. Members of the club approached the applicant to help remove Mr R as president from overseas, because they were too afraid of Mr R. The applicant wrote a newspaper article exposing wrongdoing by Mr R as club president in [2009]. Mr R resigned as president in [2010]. The applicant claimed too that Mr R attempted to remove the applicant from the club, but was not powerful enough to do so. The Tribunal put the applicant on the one had he was asking it to accept Mr R was so powerful he was able to take over the presidency and make the members fear him, but on the other hand, was not powerful enough to remove the applicant as a member, even though the applicant was overseas. The applicant replied all of the members joined together for the benefit of wider society to oppose Mr R and that slowly they were able to remove him as president. He added too that he as a life member, not just an ordinary member. He told the Tribunal he became a life member around 2006. The Tribunal noted that was considerably different to him telling the delegate he became a life member 1 year after joining the club in 2001. The applicant said he was suffering from some depression which affected his memory. He had no medical evidence to give to the Tribunal about that. The Tribunal commented the inconsistency in his claims about the power of Mr R within the club caused it to doubt the genuineness of his claims

19. Newspaper articles: The applicant provided the delegate with what he claimed to be three newspaper articles from Nepal national newspapers. He provided a photocopy of the front page of each article and an English translation. The first article is from [2009], this is the article in which he complained of wrongdoing by Mr R as president of the club. The second is from 2011 and reports that Mr R hit the applicant’s child with his [vehicle], breaking the child’s leg. The third is from 2013 and reports Mr R hit the applicant’s [relative] with [an object] and the applicant’s [relative] died in hospital two days later. It quotes the applicant’s wife as saying Mr R had earlier harmed the applicant’s [child] too. The Tribunal expressed difficulty accepting that a dispute about the presidency of a small club in the applicant’s home town would be so newsworthy as to be on the front page of a national paper. It noted too that the English translation did not identify the applicant as the author of the article. The Tribunal further expressed difficulty accepting a journalist would publish articles in a national newspaper naming Mr R as committing such serious criminal offences without using words such as ‘alleged’ or ‘suspect’. The applicant expressed surprise he was not named as the author of the 2009 article he added that it was a matter for the editor what stories would be on the front page. The Tribunal expressed concern about the formatting of some of the newspaper articles appeared misaligned but was mindful that could occur in the photocopying process.

20. The Tribunal queried with the applicant why he did not provide those newspaper articles to the delegate until just before his interview. He said it took some time to prepare them. The Tribunal noted the most recent article in 2013 was still several months before he applicant for his protection visa in 2014. He replied he made his application without the assistance of a lawyer and did not know to include those articles with his application. A friend later recommended he gave the articles. The Tribunal commented the applicant was an intelligent man with a bachelor [degree]. It had difficulty accepting if he knew he had three such front page newspaper reports that he would not include them with his protection visa application. The Tribunal was concerned the newspaper reports were not genuine. He replied that the newspaper reports are genuine because his wife told him about them at the relevant time of publishing.

21. The Tribunal considers it implausible any article written by the applicant about a presidency dispute in a [club] in the applicant’s home town would be so newsworthy as to be front page news of a national newspaper. The Tribunal further considers it implausible the reports on the front page of a national newspaper regarding the attacks by Mr R on the applicant’s [child] and [relative] do not refer to Mr R being the ‘alleged’ or ‘suspected’ offender. The Tribunal considers the applicant has fabricated those newspaper articles to create a back story on which to apply for protection. The Tribunal considers too that the applicant fabricating such newspaper articles weighs heavily against the Tribunal accepting the genuineness of the applicant’s claims regarding Mr R.

22. Delay: The applicant told the Tribunal he arrived in Australia March 2008 and that his student visa expired in March 2010 after which he remained unlawfully in Australia. The Tribunal queried why he did not apply for protection in 2011 when learned Mr R attacked his [child]. The applicant said he did not know about protection visas at that time. He conceded he did not do anything to find out about protection visas at that time. He claimed he was helpless and had little money. The Tribunal put to the applicant his delay in applying for protection until July 2014 weighed against accepting his claims are genuine.

23. The Tribunal is mindful the applicant provided photographs and medical records regarding his [child] having a medical procedure and a broken leg in 2011. The Tribunal is willing to accept the applicant’s [child] suffered a broken leg, but does not accept that injury occurred in the way the applicant claimed. The applicant provided a death certificate for his [relative] too. Again, the Tribunal is willing to accept the applicant’s [relative] died in 2013, but does not accept his death occurred in the way the applicant claimed. The Tribunal accepts that he has known Mr R since childhood. The Tribunal is willing to accept too that Mr R is a criminal. The applicant provided documents regarding the registration of the club and a support letter from the club regarding his dispute with Mr R. The Tribunal is willing to accept the club exists and that Mr R and the applicant both have had involvement in that club. The Tribunal rejects however that Mr R has ever threatened or harmed the applicant or any member of the applicant’s family. It rejects Mr R threatened the applicant or his family over the presidency dispute. It rejects Mr R injured the applicant’s [child] with his [vehicle] in 2011. It rejects Mr R caused the death of the applicant’s [relative] in 2013. It rejects Mr R or gang members related to Mr R have threatened the applicant’s wife at any other time. The Tribunal reaches those findings on the basis of the cumulative effect of the inconsistences and implausibilities in his claims and evidence described above as well as his providing fabricated newspaper reports and his delay in applying for protection. The Tribunal considers these difficulties with the applicant’s claims and evidence outweigh the support letter from the club.

24. The applicant raised no other reasons why he feared to return to Nepal. He noted the recent earthquake in Nepal. The Tribunal commented harm from natural disasters was due to any Convention reason and is excluded from significant harm.

25. The Tribunal has accepted the applicant and Mr R are known to each other, were both involved in the club and that Mr R is a criminal. The Tribunal notes more than 5 years have passed since Mr R was president. The Tribunal further notes the applicant and Mr R have not seen each other or been in contact with each other since the applicant came to Australia in 2008. The Tribunal considers there to be only a speculative and therefore not a real chance that Mr R would harm the applicant now or in the reasonably foreseeable future if the applicant returned to Nepal. As the Tribunal has found there is no real chance of serious harm, it is unnecessary for the Tribunal to consider what Convention ground if any exists in relation to Mr R and the applicant.

    Real risk of significant harm

26. The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances.   

27. The applicant raised the recent earthquake in Nepal as a reason he feared to return to Nepal. His evidence did not demonstrate that the risk to him of harm from the recent earthquake or and aftershocks was not one faced by the population of Nepal generally and faced by him personally. The Tribunal considers risk of harm arising from natural disasters to be harm faced by the population generally and not faced by the applicant personally. Therefore there is no real risk of significant harm to the applicant pursuant to s.36(2B)(c).

28. The Tribunal found above the applicant did not have a well-founded fear of persecution from Mr R as he does not face a real chance of serious harm in relation to any of his claims. Given the real chance test for well-founded fear of persecution imposes the same standard as the real risk test of significant harm, for the same reasons set out above, the Tribunal is not satisfied the applicant faces a real risk of significant harm from Mr R.

29. The Tribunal therefore considers there are no 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 the applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the named applicant does not meet the requirements of s.36(2)(aa).

    CONCLUSIONS

30. 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).

31. 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).

1. 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

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

   Fraser Syme
   Member