1414848 (Refugee)

[2015] AATA 3136

1414848 (Refugee) [2015] AATA 3136 (6 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414848

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Chris Keher

DATE:6 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 06 July 2015 at 1:35pm

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 the Tribunal accepts to be citizens of Nepal, applied for the visas [in] January 2014 and the delegate refused to grant the visas [in] August 2014.

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

4. The applicants were represented in relation to the review by their registered migration agent. The agent did not attend the hearing and has made no submissions.

   RELEVANT LAW

5. 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.

   Refugee criterion

6. 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).

7. 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.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): 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 the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. 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.

    Member of the same family unit

20. 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 of the same class as that applied for by the applicant. 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 dependent child.

    CLAIMS AND EVIDENCE

21. The issue in this case is the credibility of the applicants, and then on any accepted claims whether they meet the above criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

22. The applicants are [name] (the applicant) and his son [name] (his son) They are citizens of Nepal.  The applicant is [age] years old and his son is [age]. Both were born in Nepal. They are Hindi and Brahmin. The applicant was educated in Nepal from [year] to [year]. He was employed by [an employer] from January 1997 to July 2013 as “[occupation]”. The applicant’s wife and son are noted as having another application. His wife is [age] years old and their older son is [age].

23. The older son is noted in Tribunal and Department records as being in higher education in Australia and has been granted a student visa.

24. The applicant relevantly arrived in Australia [in] November 2009 on a [certain] [visa] to cease [in] December 2013. He departed Australia [in] July 2013 and returned [in] August 2013. He and his son then applied for a protection visa [in] October 2013, though this was found to be invalid and the applicants notified of this [in] November 2013. This application is found at file [number].

25. The applicant and his son then applied again [in] January 2014 (file [number]). The applicant has completed a Form C application and his son a Form D, being for a person who does not have their own claims and is applying as a member of the same family unit but is included in the application.

26. The applicant’s claims are in a statement dated [in] October 2013 attached to his application. Relevantly, the applicant claims that he returned to his [home town] in Nepal at the end of July 2013 with the intention of preparing accommodation for the family and enrolling his children in schools. He claims while there he was approached by members of the local Communist Party of Nepal (Maoist) (CPN-M) who demanded a donation of 1 million rupee for their party use. He claims he asked for some time to collect the money and then went to “the Capital” Kathmandu. He claims that he then approached officers of [his employer], who discussed it with the hierarchy of the CPN-M who said that the letter of request was on old letter head and there was no central policy on donation collections, and it was up to individual committees to raise funds in accordance with their programs. He claims they didn’t help him. He also contacted the police who said they would investigate the matter, though they said they were aware of several such letters written and funds collected “with the will of the main political party”. [The employer] said they would help him take the matter further. He claims the amount of 1 million rupee was a huge sum for him and he couldn’t pay it, and hadn’t saved money whilst in Australia. He claims that because of this he couldn’t risk taking his family back to Nepal and following from this decided to apply for protection in Australia. He claims he has served his [employer] for 17 years and there is no guarantee that if he pays the money there won’t then be another demand.

27. The applicants provided a copy of the delegate’s decision with their application for review.

28. At hearing only the applicant attended. He said his son was at school. He repeated aspects of his claims and clarified and added some evidence.

29. He said that he worked for the [employer] for 13 years, and had been based in Kathmandu where he had always rented a house. He had worked in Australia for the [employer] at their [office] in [location] as a [occupation]. He had a 4 year contract that was to finish [in] July 2013. He had been thinking about retirement and said that people usually do so after 20 years’ service. All up he has 13 years’ service.

30. He had returned to Nepal [in] July 2013 and went to visit his parents in his home village, [number] kilometres (and several hours by transport) from Kathmandu. In the village he had built a house with the money he had made in Australia. It is rented to tenants.

31. He claims that while in the home village he was approached by some CPN-M members and asked for a donation. He explained the approach was by a letter being left in his house. It is at folio 1 of the Department file. He then went back to Kathmandu and told his boss at [his employment] about it, and also the police, and they said they would investigate the matter. He also discussed the matter with relatives in the village and “found out they had asked for 10 lakh rupee”. He couldn’t pay it as he didn’t have the money with him.

32. The letter was translated at hearing as: ”Subject: to provide donation” and that they asked for a donation  as he is from the village and they know he has been in Australia for 3 years  and “we would like you to donate 10 lakh rupee to our party within a month and if not provided we will be forced to do any amount of physical operations against you and your family” .

33. He then thought he would return to Australia and “settle my family in Australia”. He said that apart from this, being “really scared they could do other operations against me”, he has no other concerns about return to Nepal, and had “no problem in Kathmandu”.

34. He claims he then resigned from his [employment] in August 2013 by presenting a resignation letter which was accepted. He doesn’t have a copy. He clarified that he was only in Nepal for 2 weeks and that he resigned a month or two later. He confirmed his contract had finished [in] July 2013. While he was back in Nepal another person was hired for his [position] in [Australia]. He claims “I didn’t leave with the intention of coming back”.

35. He claims it was his and his family’s intention, to return to Nepal and it was only after that incident that he decided to apply for protection in Australia.

36. In relation to his son, he said he had no claims of his own part from the fact that he didn’t want to return to Nepal as he wanted to continue his education in Australia as “he didn’t like to study in Nepal as he didn’t like the education system”.

37. The Tribunal asked the applicant about the older son. He said he is a student in Australia and on a student visa. He is now studying [a course] in Sydney. He confirmed that in July 2013 he commenced studying [another course] and had applied for this before the applicant returned to Nepal.

38. The Tribunal put to the applicant that given that both sons were in education in Australia before he went to Nepal or had said they didn’t want to return to study in Nepal, that this was the reason he stayed in Australia after his employment contract finished. He said “no that isn’t the situation it is the older who wanted to study here, but then the younger one also didn’t want to go back”. It was again put to the applicant is seemed this was the reason that he and the family didn’t want to return to Nepal. He agreed they were both studying in Australia but claimed “also the situation (in Nepal) wasn’t favourable”.

39. The Tribunal put to the applicant that it wasn’t an intention to take the children back to Nepal (as in his statement) as they were clearly in education here. He said the older one had wanted to stay here for education but “after this situation he also doesn’t want to go back”.

40. The Tribunal put to the applicant that if it was his intention to take the family back to Nepal at the end of his contract in July 2013 then why didn’t he do that; instead only he went and the other three family members remained here. He claimed he went back to “empty the house and get rid of the tenant”.  His younger son was in [high school] at the time and “had 3 months to finish the year”.

41. He said his wife was not part of his application as she had her own application as a student guardian in relation to the older son’s student visa.  She is now on a bridging visa. He said he wasn’t sure whether the student guardian visa was refused. It was put to him the Tribunal was aware it had been refused.

42. The Tribunal discussed the delegate’s decision, and it being on the basis of the applicant and his son having a right to enter and reside in India. He said there wasn’t any security in India and when asked to explain said “there is no one there to help me … I don’t know any one and have no place to stay” in India. He said he had been to India once as part of his training with [his employer] and also once for holiday before commencing his employment.

43. In relation to the letter claimed to be from the Maoist Party it was put to the applicant the Tribunal was aware of a high degree of fraud amongst such documents and why then would it be considered as true. He said “I have nothing to say on that, I just provide the document to you as sent to me”.  He claimed there was not only that letter but another one delivered to his house in the village. He was told of this by his tenants but hasn’t seen it.

44. In conclusion the applicant said he had very good job in Nepal and now doesn’t have anything and hopes to be able to stay in Australia as a refugee.

45. The country information is as detailed in the delegate’s decision. The applicant has provided no country information in support of his claims.

    CONSIDERATION OF CLAIMS AND EVIDENCE

46. I have carefully considered the claims and evidence of the applicant. As detailed above he has provided no independent country information in support of his claims.  This despite having an advisor. I have particularly considered the applicant’s claims in the context of his having been an employee of the [employer] in Australia whose contract ended [in] July 2013, and whose children wished to remain in Australia to continue their education.  I do not accept as reasonable to believe given that information that the applicant was returning home to prepare the house and enrol his children in education. That clearly is not true.  The children were not returning home. His son was in [high school] and had 5 months of that year remaining and had said he didn’t want to return home. His older son had enrolled in courses in Australia with a clear intent of remaining here and has applied for a student visa. The applicant didn’t take his family home at the end of the contract but left them here. I have considered his claims in this context and do not believe his claims as true. I consider he has fabricated his claims of fearing harm from the CPN-M in his village in Nepal so as to have reasons for making a protection visa application and extend his stay here to facilitate his children remaining here for their education. His contract had finished and they didn’t want to return.

1. Even if I did accept as true that he was asked for a donation in his home village (and I do not believe it to be true) it is also not reasonable to accept that the applicant’s fear of harm in such circumstances is well-founded. In particular his village is [number] kilometres from Kathmandu and several hours of travel. He has lived all of his recent years prior to Australia in Kathmandu and he has had no problems there. He could if he wished have resided in Kathmandu and continued his work [for his employer] (noting his claim that he had ongoing service that he resigned from separate to his contract in Australia). He was able to seek assistance from his employer and the police. If he has any such concerns again he could contact them again and seek State protection. They offered it and undertook an investigation.

2. Alternatively, and as detailed in the delegate’s decision, the applicant has a right to enter and reside in India. The reasons he has given, as to why he may not want to, are not reasonable in the circumstances.  He would be able to enter India using his Nepalese passport. The 1951 Treaty assures that he has significant rights in relation to residence and work. He has been there before on 2 occasions.  The concerns he has are in relation to not knowing anyone, no one to help him and having nowhere to live. For the same reasons as detailed in the delegate’s decision I find that the applicant has not taken all possible steps to avail himself of a right to enter and reside in India whether temporarily or permanently. I find the applicant is not owed protection obligations in accordance with sections 36(3), 34(4), 36(5) and 36 (5A). 

3. The applicant son has no claims of his own apart from that expressed by his father that he doesn’t want to return to Nepal as he wants to study in Australia and considers the education system not as good in Nepal. I accept these concerns as true but they are not of a type of harm nor of seriousness as could be considered as serious harm or significant harm.

4. Overall I find the applicant not to be a credible witness. I find his claims are opportunistic and made so as to enable him, and his son, to remain in Australia with his wife and older son and for the purposes of enabling the children to continue their education in Australia. I do not accept any of the claims of fearing harm in Nepal as true. He has no other claims.

5. 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).

6. I have also considered the alternative criterion in s.36(2)(aa) and whether  the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa). This requires a consideration of whether there are  substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants 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’).

7. As detailed above, ‘significant harm’ for these purposes is exhaustively defined in s.36(2A): 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 the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

8. No submission or claim is made on this basis. As detailed above I find the applicant is not a credible witness and I do not accept his claims as true. He has no other claims. The claims of the applicant’s son are not of a nature or type of harm as could be considered as significant harm.

9. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).]

10. 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.

    DECISION

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

    Chris Keher
    Senior Member