1414516 (Refugee)

[2015] AATA 3237

1414516 (Refugee) [2015] AATA 3237 (3 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414516

COUNTRY OF REFERENCE:                  Nepal

MEMBER:David McCulloch

DATE:3 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 03 August 2015 at 9:54am

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Nepal, applied for the visas [in] December 2013 and the delegate refused to grant the visas [in] July 2014.

3. The first named applicant (the applicant) and the second named applicant appeared before the Tribunal on 21 July 2015 to give evidence and present arguments. The third and fourth named applicants, the children, were present during parts of the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.  The applicant only used the interpreter to communicate occasionally, mainly speaking in English. The second named applicant utilised the interpreter.

   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. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse of the family head and a dependent child of the family head.

9. Based on the documents that have been provided by the applicants, the Tribunal is satisfied that the second named applicant is the spouse of the applicant. Based on the documents that have been provided by the applicant, including the Nepalese passports of the third named and fourth named applicants, the Tribunal is satisfied that the third named and fourth named applicants are the dependent children of the applicant.

10. 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.

11. The issue in this case is the credibility of the applicant and the second named applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and claims

12. The applicant arrived in Australia on a student visa [in] March 2009. A second student visa ceased [in] December 2011. The applicant lodged the application for a Protection visa [in] December 2013.

13. The following information is contained in the relevant application forms lodged with the Department for a Protection visa, including a written statement elaborating on the applicants’ claims.

14. The applicant was a citizen of [Country 1] at birth.  He became a citizen of Nepal [in] December 1995.  The applicant lived in Lalitpur, Nepal from January 2003 until March 2009. The applicant was studying in India [between stated years].

15. The applicant left [Country 1] in 1990 as a political refugee and took asylum in India.  The applicant became a citizen of Nepal. In 1999, the applicant began work as a teacher [in a school] in Kathmandu. The applicant became involved with the RPP, as an active member. The applicant wrote a book about Nepalese [nationalism]. In 2004, the applicant was taken to the Communist Party Nepal (Maoist) party office for an explanation of encouraging pupils, writing and publishing the book about the monarchy and the reason for being an active member in the RPP. [In] August 2004, during a discussion between Maoist activists and the applicant, they suddenly attacked the applicant and threatened to kill him. The applicant was manhandled and [punched]. The applicant still has a scar. The applicant reported the incident to police but they did not take any action. This made the applicant scared and required him to overcome obstacles and hurdles. He had to change his place of work and name and started to live in a hostel and work as an [occupation] which had little contact with the public. There was a danger to the applicant’s parents also.

16. The Maoists attempted to force the applicant to leave the RPP and enter into their party, but the applicant did not accept this and the applicant was threatened as a result.

17. In 2008 the applicant, married in secret.  The applicant’s wife was running a business in Nepal. As a result of all the difficulties, the applicant came with his family to Australia [in] March 2009. He and his wife had children in Australia.

18. The applicant’s mother-in-law died in 2010. The applicant’s wife returned to Nepal.  Within 10 days the applicant’s wife and sick baby had to come back to Australia due to the danger to their life.  The applicant’s wife was forced to give donations and there was a threat to kidnap the applicant’s [child].

19. Reference is made to a couple whose son was murdered by Maoists in 2004. They have been staging a hunger strike. Reference is made to the mother of a friend of the second named applicant being kidnapped and that there has been no action from authorities.  In 2013 the applicant’s brother tried to ‘manage us in India’ but was not successful due to insecurity. The applicant’s father-in-law tried to make arrangements for the applicant’s family to go to [Country 2] but this was not possible due to visa problems.

20. The applicant did not know anything about a Protection visa in Australia. The applicant thought the situation in Nepal would change. Power makes the applicant scared. The applicant’s wife’s source of income was good so the applicant decided to study further at university. The applicant thought that he could not lodge a Protection visa while he had a student visa.

21. Although it seems the situation in Nepal has improved in fact it is not. The applicant fears harm from the Maoists if he returns to Nepal.

22. The applicant provided a significant number of documents. Relevant documents include:

    ·Letter from [a] Store, Kathmandu dated [in] September 2008 indicating that the applicant has been working as a [occupation] since 2007;

    ·Statement from [a] Municipality Office dated [in] January 2014 stating that the applicant also goes by [another name] and his wife also goes by [another name] and these were the names that they were married;

    ·Statement from the [police], Lalitpur dated [in] January 2014 indicating that the applicant filed a written application at the office [in] August 2004 with a statement that he was assaulted and injured in the face and body by a group of armed cadres of the Maoist at the roadside, located [in] Lalitpur;

    ·Letter from [a school in] January 2007 confirming that the applicant had been employed at the school [for] three years;

    ·Letter from [a] School dated [date]/6/61 indicating that the applicant had been teaching at the school from 2057 to 2061 (approximatley 2000 to 2005) as a [teacher];

    ·Copy of [the applicant’s book]. The book is in English and is a book [for school children]; and

    ·A range of news reports, articles and statements relating to the situation in India, including crime in India and the relationship between Nepalese Maoists and Indian Maoists.

23. The second named applicant lists employment from January 2006 to March 2009 at [a] Store, a business [where] the second named applicant was founder/director. From February 1999 to January 2006 the applicant’s wife worked at [other] Stores, as a [occupation] and [occupation].

24. The applicant provided a number of documents and reports on the day of the Tribunal hearing. These include: media reports from February 2015 indicating a revival of the Young Communist League, a youth wing of the Maoists; a report of January 2015 concerning a donation drive by the CPN Maoists;  a June 2015 report of three Nepalese men being held at the Indian border; a February 2015 report of a disabled Nepalese woman being raped in India; a report from September 2013 of Indian police entering Nepalese territory; a report of Indian police beating a Nepalese women; a June 2015 report of an armed Indian gang attacking a Nepalese citizen; a May 2015 report that earthquake survivors in Nepal face a threat from human trafficking; and a report from [an Australian university] which makes reference to the applicant concerning programs designed to help men overcome the stigma of mental health disorders.

25. While the relevant application forms make claims on behalf of the applicant only, and the remaining applicants are included as dependents, the Tribunal considers, on the basis of the evidence that there are claims of harm feared by the second, third and fourth named applicants. Claims are made of forced donation requests affecting the second named applicant. It is arguable that there are also claims that the second named applicant may face harm due to association with her husband, given claims (discussed further below) that the second named applicant’s father has suffered torture from Maoists. Claims are made that the third and fourth named applicants face kidnapping.

    Independent information

    Background to monarchist parties in Nepal

26. The Rastriaya Prajatantra Party (RPP), also known as the National Democratic Party, is a historically monarchist party that was formed in 1992 by a ‘merger of two groups that both called themselves the National Democratic Party, one led by S.B. Thapa and the other led by L.B. Chand’.[1]

    [1] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1036.

27. Factionalism along Thapa versus Chand lines eventually led to splits in the RPP. The first of these ruptures occurred in early 1998, when the RPP ousted Chand and nine of his supporters for lack of loyalty to Thapa in his then-position as Prime Minister. Chand went on to form a ‘new RPP’, ‘RPP (Chand)’, but in January 2000 – following the party’s dismal showing in the 1999 elections – RPP (Chand) merged back into the RPP.[2] Further rifts between the Thapa and Chand factions resulted in another split in 2005: this time, it was Thapa and his supporters who left and formed their own party – the Rashtriya Janshakti Party (RJP).[3] Unlike Chand, S.B. Thapa did not return to the RPP, but his absence did not end the divisions within the party.[4] The RPP-N was born out of the RPP’s third split, in 2006.[5]

    [2] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1036.

    [3] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1036.

    [4] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1037.

    [5] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1037.

28. Throughout the mid-2000s, the RPP was, by its own report, taking an ‘increasingly pro-democratic stance’,[6] but there were elements within the party that ‘approved participating in King Gyanendra’s government’ after he seized absolute power in 2005.[7] In essence, these individuals were out of step with an RPP that was beginning to question the king’s actions and distance itself from the monarchy.[8] In January 2006, RPP President Rana expelled ten of these ‘royalist dissidents’, who went on to form the RPP‑Nepal (RPP-N) under the leadership of Kamal Thapa.[9]

    [6] “About us: Rastriya Prajatantra Party (RPP)” n.d., Website of the RPP, - Accessed 30 July 2010.

    [7] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1038.

    [8] “The RRP: Radicalism or Ruse?” 2007, Nepalinetbook (blog), 3 December, - Accessed 30 July 2010 – Attachment 1; “RPP doesn’t favour monarchy: Rana” 2007, Nepal News, 19 August, - Accessed 2 August 2010 – Attachment 2; Chapagain, K 2010, “Nepal: Third Failure in Parliament to Elect a Premier”, New York Times, 2 August, - Accessed 3 August 2010; “About us: Rastriya Prajatantra Party (RPP)” n.d., Website of the RPP, - Accessed 30 July 2010.

    [9] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1037. Please note, Kamal Thapa is not to be confused with S.B. Thapa

29. The position on the monarchy remains a key difference between the RPP and RPP-N. Sources suggest that the RPP has retreated from a pro-royalist stance, while the RPP-N continues to advocate a return to a Hindu monarchist state.  The International Crisis Group report also notes that the RPP and RJP both ‘accept that Nepal should remain a republic, but ‘are unclear about what they stand for.’[10]

    Recent violence against members or supporters of monarchist parties

    [10] International Crisis Group 2012, Nepal’s Constitution (II): The Expanding Political Matrix, Asia Report N°234, 27 August, p. 22

30. The Tribunal made a request of the Country of Origin Information Section of the Department of Immigration and Border Protection to research information about political attacks by Maoists or others on members or supporters of royalist political parties in Nepal since 2011. The following information was obtained (current to April 2015).

31. Two reports of Maoist violence against pro-monarchy supporters in 2011 were located. No further reports of violence perpetrated by Maoists or others against conservative pro-monarchy supporters were located from 2011 to date.

32. Maoist violence periodically continued following the signing of the Comprehensive Peace Agreement in 2006. Much of this violence was perpetrated by underground and splinter faction Maoists groups and the Unified Communist Party of Nepal (Maoist) (UCPN-M) until 2012. Intra-party violence was noted in 2011 amongst Maoists.[11] In 2012, the UCPN-M was removed from the United States list of world-wide terrorist organisations. ^[12]

    [11] South Asia Terrorism Portal 2012, Nepal Assessment 2012, 9 January, para.10-13 < Accessed 10 January 201

    [12] South Asia Terrorism Portal 2013, Nepal Assessment 2013, 20 January, para.7 < Accessed 29 January 2013

33. Two incidents of Maoists violence against pro-monarchists in 2011 were located. On 26 April 2011, ‘[a]t least 14 RPP activists were injured in a clash with the UCPN-M cadres at Madi in Chitwan District. According to eye witnesses, the clash ensued after the Maoist cadres suddenly attacked the RPP activists while they were attending a party workers’ meeting at Madi.’[13] On 1 November 2011, ‘[a] cadre of Rastriya Prajatantra Party (RPP), Pemba Lama of Bhotang VDC-1, was injured when two local UCPN-M cadres – Raju Tamang and Mangale Tamang – attacked Lama with Khukuris on the charge of having different political belief.’[14]

    [13] South Asia Terrorism Portal 2011, Incidents involving Communist Party of Nepal-Maoist 2011, 30 December < Accessed 12 January 2012

    [14] South Asia Terrorism Portal 2011, Incidents involving Communist Party of Nepal-Maoist 2011, 30 December < Accessed 12 January 2012

34. According to the South Asia Terrorism Portal’s Nepal Assessment 2015, no Maoist insurgency related civilian deaths were record during 2014:

    The environment of peace that had been established in Nepal in 2013 survived, despite challenges, through 2014, with not a single insurgency-related fatality on record. Significantly, since March 2000, when the South Asia Terrorism Portal (SATP) database commenced compiling data on insurgency-related fatalities in Nepal, it was in 2013 that the Himalayan Nation did not record a single insurgency-related fatality during the course of a year, for the first time, and remained completely free of insurgency-related violence. At its peak in 2002, the insurgency saw 4,896 persons, including 3,992 Maoists, 666 Security Force (SF) personnel and 238 civilians, killed in a single year.[15]

    [15] South Asia Terrorism Portal 2015, Nepal Assessment 2015, para.1 < Accessed 23 March 2015

    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 it 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. Nepalese passports have been provided to the Tribunal for each of the four applicants, including the two dependent children. The Tribunal is satisfied that each applicant is a citizen of Nepal and accordingly their claims will be assessed against Nepal.  The Tribunal is satisfied, based on information provided by the applicant in his Protection visa application form, that he is no longer a national of [Country 1].

3. The Tribunal accepts that the applicant had some involvement with the RPP party and that he wrote a book for Nepalese [schoolchildren].  Concerns about the extent of the applicant’s RPP involvement are canvassed later in this decision. Based on the detail of the applicant’s evidence in hearing, the Tribunal is satisfied that the applicant had an encounter with Maoists in 2004, and is prepared to accept that he was physically assaulted in one encounter.

4. However, the Tribunal has a number of significant difficulties with the evidence of both the applicant and the second named applicant as to threats and harm from Maoists after this time, and the claim that the applicant and the second named applicant fled to Australia for fear of harm from Maoists in 2009 and that the second named applicant and her child fled Nepal prematurely on a visit there in 2010.

5. First, both in the written claims and in the Tribunal hearing there was a significant lack of clarity or precision as to what happened to the applicant after the August 2004 incident. In the applicant’s written claims he states that there were ‘obstacles and hurdles’ following the October 2004 incident. It was difficult in the hearing to obtain from the applicant clear evidence as to what specific difficulties he faced form this point.  His evidence was hesitant, shifting and lacking in certitude. The applicant often responded to questions with long winded and extraneous answers that avoided the point of the question. 

6. When the Tribunal initially asked what other harm he suffered from Maoists after the August 2004 incident he said that this was the main event. The applicant said that Maoists started gathering information about him.  He confirmed later in the hearing that Maoists became  aware of his working and living arrangements. He said that his father, who lived 700 km away, was contacted by Maoists asking about the applicant’s whereabouts, but he did not reveal this to the Maoists. The Tribunal asked the applicant why Maoists would make enquiries of his father so far away when they knew the applicant was in the Kathmandu area.  The applicant did not provide a meaningful response.

7. When the Tribunal asked the applicant if he was physically harmed by Maoists following the attack in August 2004, the applicant was initially hesitant in this response. When pressed, he said that there was an incident in 2007 or 2008 when he was punched in the face. When the Tribunal asked the applicant why this specific event was not included in his written claims, he said that his agent told him only to include information that he could prove. The Tribunal indicated that it thought this explanation was improbable.

8. After teasing out details, the applicant said he was physically harmed only on these two occasions. When the applicant was asked on what other occasions he had actual contact with Maoists, he said that this happened on perhaps four occasions.  He said that Maoists would ask him why he was supporting the RPP and make comments about this book and another book they knew he was writing.

9. The overall impression of the Tribunal was of a lack of certainty and clarity surrounding adverse interest from Maoists following the incident in August 2004. The applicant did not recount events in a way that caused the Tribunal to consider he was speaking from actual experience. The applicant’s explanation that he had not previously made claims about a second incident when he was physically attacked on the basis that he had no proof of this event is not plausible to the Tribunal. The Tribunal is of the view that the applicant would have an incentive to make claims of actual physical harm. The Tribunal notes that the lack of proof concerning the events that are claimed by the applicant to have happened to the second named applicant and the child in Nepal in 2010 did not preclude these claims being made.

10. Second, the applicant gave evidence that was inconsistent and lacked plausibility in terms of acting to avoid detection by Maoists following what happened in August 2004.  The applicant’s written claims, together with evidence in the hearing, are that after the incident in August 2004, the applicant changed jobs and living arrangements to avoid attention from Maoists by avoiding contact with the public. This is not consistent with the acknowledgement later in the hearing that Maoists knew about his work and home details. It Maoists knew this, there would be little point in the applicant keeping a low profile if they could find him at his home or work.  Further, the applicant said that during this period he actually increased his political activity with the RPP, including visits to the palace. This is not consistent with his written claims that he attempted to limit his contact with the public. When asked how an increase in his political activity could be consistent with a desire to keep a low profile to avoid harm from Maoists, the applicant said that he was impressed with the meetings which he attended in the evenings. This was not a response which explained the inconsistency, in the Tribunal’s view.

11. The applicant claimed at the hearing that about six months before coming to Australia things with the Maoists got really bad and that they wanted to find and kill him.  As a result, he went into hiding, living with his wife’s parents. The Tribunal noted that during this time the applicant was working at his wife’s shop and therefore it would seem to have been fairly easy for Maoists to track the applicant down. The applicant indicated that he was not actually working in the shop but in the warehouse which was in a different location.

12. The applicant and the second named applicant both gave evidence to the Tribunal that after their marriage, Maoists started to visit the shop asking for the applicant’s whereabouts and seeking donations. Donations were paid. The second named applicant did not inform them as to her husband’s whereabouts. Both the applicant and the second named applicant indicated Maoists never sought to look for the applicant at the second named applicant’s  home. The Tribunal indicated it seemed unlikely that they would not look for him at the home if they wanted to take and kill him.

13. Overall, the applicant’s evidence about initially seeking to keep a low profile and then to go into hiding had an air of unreality, to the Tribunal, with inconsistencies and a lack of plausibility. The applicant gave evidence that the Maoists knew about his working and living conditions, and the fact that he got married (such that they were able to visit the applicant’s wife’s shop). This would seem to defeat the purpose of the applicant keeping a low profile and going into hiding. The applicant claims to have increased his political activity which is inconsistent with wanting to keep a low profile. It is not credible that if the applicant was being sought by Moaists who wanted to kill him in the months before his coming to Australia, that they would not have looked for him at his wife’s family home, where he indicated that he was living for the entire period. The Tribunal has doubts about claims by the applicant and the second named applicant that the applicant did not in fact work at the store but in a warehouse in a different location. The letter from the [Store] lists the applicant as having been employed as a [occupation], which would imply a role in the shop itself.

14. Third, the Tribunal has some concerns with the extent of the applicant’s involvement in the RPP, although it accepts that he did have some involvement. In the hearing, when the applicant was asked about the core beliefs of the RPP he indicated that it supports a constitutional monarchy. When asked whether it supports a republic, the applicant said no. The independent information, cited in this decision, indicates that the RPP moved away from supporting a monarchy in Nepal to supporting a republic.  The RPP-N in contrast, which split from the RPP in 2006, maintains support for the monarchy. The Tribunal considers that the applicant, if he was a very active supporter of the RPP as he claims, and noting that he indicates he increased his political involvement in 2005, would be aware of this key policy position of the party. The Tribunal notes that the applicant indicated in the hearing that he would wish to continue his involvement in the RPP if he returned to Nepal.

15. Fourth, the Tribunal has credibility concerns with the account of the applicant and the second named applicant of the visit by the second named applicant and her child to Nepal in 2010.  The applicant was asked to tell the Tribunal in the hearing what he understood about what had happened (in the absence of the second named applicant). He indicated that his wife was called on the phone by Maoists who told her that she should come to a location with money and the children possibly for the purpose of kidnapping. The second named applicant did not do this and returned to Australia, with the child, within days as a result, earlier than planned. The Tribunal asked the applicant if he was aware of Maoists then making further contact with the second named applicant’s family. The applicant gave a long answer which indicated that they might or might not have. He then indicated that he thought that his wife’s [relative] may have heard that someone was asking for her [relative].

16. When the second named applicant gave evidence on the visit (in the presence of the applicant) and was asked whether there was any further contact from Maoists after she returned to Australia, she said that her father was contacted and tortured by Maoists to an extent that caused him to have to close the business. The Tribunal put to the second named applicant, in accordance with the procedural requirements of s.424AA of the Migration Act, the information given by the applicant earlier in the hearing that he had thought that someone might have been asking the second named applicant’s [relative] about her whereabouts. It was noted that this was relevant because there was no mention of Maoists torturing the second named applicant’s father causing him to close his business. It was noted that a consequence of relying on this information might be to question the credibility of the account. The second named applicant responded that she did not tell her husband about this due to not wanting to worry him due to his fragile state as a result of past trauma.

17. The second named applicant was also inconsistent about the nature of the kidnapping threat. In the initial part of the second named applicant’s evidence she said that Maoists called and asked her about her husband, and wanted to meet with her and for her to bring her children.  She said this was not a threatening conversation. She found out from others that they had planned to kidnap her children. When the Tribunal asked the applicant if there was any request to pay money, the applicant said yes she was told to bring AU$2000-AU$3000 and if this money was not paid then the children would be kidnapped. The Tribunal finds it unusual that the applicant did not spontaneously refer to the donation request when initially asked what Maoists requested of her.  Her claim that the conversation was quiet and pleasant is not consistent with an extortion attempt. Further, the applicant, in the second account, in claiming that there was a threat of kidnapping, provided evidence inconsistent with her first account where she said that she learnt from others that there was a plan to kidnap the children.

18. The significant inconsistencies in relation to this aspect of the evidence lead the Tribunal to have serious doubts about the credibility of the applicant and the second named applicant on this issue, including the claim that the second named applicant was threatened that her child would be kidnapped by Maoists, or that she came to learn of this, that she was extorted for money, or that Maoists subsequently tortured the second named applicant’s father. The Tribunal does not consider it credible that the applicant would not be aware of the fact that his father-in-law had been tortured by Maoists and had to close the business as a result. This is a very significant event and the Tribunal is of the view that a wife would convey such information to her husband, particularly noting the claim by the applicant (referred to below) that his hope was to manage the business.  The Tribunal does not believe the second named applicant when she says that she decided to keep this information from her husband because of his mental fragility.

19. Fifth, the fact of the applicant and the second named applicant having a fear of serious or significant harm to both themselves and their children is not consistent with a delay of 4 ½ years from arrival in Australia, and at least two years from the 2010 incident in Nepal, to claim protection.

20. The applicant in response said that he wanted to keep his options open in order to run his wife’s business. He indicated that the problem was not as significant as the one that he faced in [Country 1] as a refugee. He said that when his student visa was cancelled in 2011 he wanted to die. He said that he waited for two years to see if the situation would change. He said his father-in-law told him that Maoists were demanding money. He indicated that investigations had been made to live in [Country 2]. The second named applicant in response said that it was not possible to apply for protection visa whilst they had other visas. She thought there might be a reconciliation with Maoists.  She indicated that her husband used to go to college. She indicated that there was a plan that her husband would work with the family business. She indicated that there were reasons of patriotism.

21. These explanations do not explain, to the Tribunal’s satisfaction, why the applicant and the second named applicant, if they fled Nepal because of Maoists wanting to find and kill the applicant, and because of extortion of the second named applicant, that they would not have investigated Protection visa options and made an application at a point earlier than 4 ½ years from arrival into Australia. The applicant is an educated man, has worked in a professional environment, and the Tribunal considers that he would have had the insight and intelligence to explore options for protection, most probably before departing Nepal, and certainly soon after arriving in Australia, if he truly feared the harm that he claims. Similarly, the Tribunal considers that, had the events that the applicants claim occurred in 2010 on the visit by the second named applicant and her children back to Nepal, a claim for protection would have been made soon after the return from this visit. If there was a mistaken belief that the applicant holding a student visa was a bar to claiming protection, this bar was lifted in 2011 when his student visa ceased. If this were truly a concern, the Tribunal considers that the Protection visa claim would have been made, at the very least, at this point in time.

22. The Tribunal draws significant adverse inference as to the credibility of the claims made by the applicant and the second named applicant as a result of the very significant delay in claiming protection.

23. Considering all of the five areas of difficulty identified, the Tribunal is not satisfied as to substantive aspects of the claims made by the applicant.

24. The Tribunal is not satisfied that the applicant was subject to ongoing threats or harm from Maoists after the incident in August 2004. The Tribunal is not satisfied that the applicant’s parents in a town 700 km away were subject to threats or contacted by Maoists. The Tribunal is not satisfied that the applicant was pressured to leave the RPP and join the Maoists. The Tribunal is not satisfied that pressure was applied by Maoists in relation to his published book or the book that he was writing after the end of 2004. The Tribunal is not satisfied that the applicant was physically attacked by Maoists in 2007 or 2008. The Tribunal is not satisfied that in 2007 or 2008 pressure from Maoists increased such that they wanted to find and kill the applicant. The Tribunal is not satisfied that the applicant was effectively in hiding whilst living at his wife’s home and working in the family business. The Tribunal is not satisfied that the applicant was working in the family business at another location, and not in the shop itself. The Tribunal is not satisfied that Maoists extorted his wife or her family for money from the shop as a result of their adverse interest in the applicant, or otherwise. The Tribunal is not satisfied that Maoists made enquiries at the shop of the applicant’s whereabouts.  The Tribunal is not satisfied with the applicant’s account of what happened to the second named applicant and the child on the visit to Nepal in 2010.

25. The difficulties identified with the second named applicant’s evidence and timing of claiming protection outlined in the fourth and fifth points, above, cause it not to be satisfied with key aspects of the second named applicant’s claims. In terms of the second named applicant’s visit to Nepal in 2010, the Tribunal is not satisfied that the second named applicant was contacted by Maoists either making enquiries about the applicant, demanding a meeting, demanding money or threatening the kidnapping of the second named applicant’s child. or that she discovered a plan to kidnap the child from others. The Tribunal is not satisfied that the second named applicant and her child returned to Australia as a result of such threats. The Tribunal is not satisfied that the second named applicant’s father or anyone else in her family was subsequently threatened or harmed by Maoists causing the family shop to be closed. The Tribunal is not satisfied that there were prior forced donation requests by Maoists to the second named applicant prior to her first visit to Australia, or requests by Maoists at her shop asking as to the whereabouts of the applicant.

26. The Tribunal has accepted that the applicant was involved in the RPP but considers that he was a low level member and participant only, noting in particular his lack of knowledge of the fact that the RPP supports a republic. The Tribunal accepts the applicant’s indication in hearing that he would wish to continue his political involvement if he returned to Nepal.  The Tribunal noted to the applicant in the hearing independent information which indicates there have been no recent reports of harm perpetrated by Maoists or others against those involved in royalist political parties which would suggest that there is not a future risk of harm to the applicant on this basis.

27. In terms of the claim that someone known to the second named applicant was kidnapped, the Tribunal is not prepared to accept this at face value. Even if it were, there is no evidence that there is any link to such an event and harm to any of the applicants.

1. The Tribunal does not consider that the adverse treatment that the Tribunal accepts that the applicant faced from Maoists in 2004 provides a basis for the applicant, the second named applicant or the children by association, facing a real chance of serious harm in the reasonably foreseeable future should they be returned to Nepal, noting that 11 years have passed since this incident and noting also the fact of no recent reports of harm against supporters of royalist political parties by Maoists or anyone else in Nepal.

2. As the Tribunal has not been satisfied of subsequent threats or harm to any of the applicants after the events of 2004, it is not satisfied that there is any specific harm or threat that occurred post-2004 that would give rise to a real chance of serious harm to any of the applicants for the reasons claimed.

3. In terms of any ongoing political activity by the applicant in royalist political parties should he return to Nepal, the independent evidence indicates that there have been no reports of harm perpetrated by Maoists or anyone else against members of royalist political parties in at least the last three years in Nepal. That being the case, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant or any of the other applicants by association in the reasonably foreseeable future as a result of participation in royalist politics.

4. The Tribunal has no independent evidence before it that would suggest that there is a real chance of serious harm to any of the applicants as a result of the overall political and security situation in Nepal.

5. In summary, the Tribunal is not satisfied that there is a well-founded fear of any of the applicants being persecuted for a Convention reason as a result of past or future harm, threats from Maoists, as a result of participation in royalist politics, as a result of the general political and security situation, or for any other reason.

6. Having considered the Refugees Convention criterion, the Tribunal considers the complementary protection criterion. For the reasons already indicated, the Tribunal does not consider that the incident that occurred in 2004 provides a foundation for a real risk of significant harm should the applicants return to Nepal. Given that the Tribunal has found there has been no other threats or harm by Maoists, there is no other past events which create a real risk of significant harm to the applicants.

7. Given the independent evidence already mentioned, the Tribunal is not satisfied that there is a real risk of significant harm to the applicant or any of the other applicants by association as a result of participation by the applicant in royalist politics should the applicants return to Nepal. 

8. The Tribunal does not have independent evidence before it to enable it to be satisfied that there is a real risk of significant harm to any of the applicants as a result of the political and security situation in Nepal.

9. In summary, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Nepal, there is a real risk that they will suffer significant harm as a result of past or future harm or threats from Maoists, as a result of participation in royalist politics, as a result of the general political and security situation, or for any other reason.

10. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).

11. Having concluded that the applicants do 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 applicants are person in respect of whom Australia has protection obligations under s.36(2)(aa).

12. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

13. The Tribunal affirms the decision not to grant the applicants Protection visas.

    David McCulloch
    Member