1416486 (Refugee)

[2016] AATA 4994

1416486 (Refugee) [2016] AATA 4994 (9 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416486

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Christine Cody

DATE:9 May 2016

PLACE OF DECISION:  Sydney

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

STATEMENT MADE ON 09 MAY 2016 AT 8:05PM

CATCHWORDS

REFUGEE – protection visa – Nepal – particular social group – homosexual – forced marriage – fear of attacks by Maoists – family honour and disapproval – fear of assault – state protection – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91
Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

BACKGROUND

1. The applicant is a national of Nepal who seeks to be granted a Protection visa under s.65 of the Migration Act 1958 (the Act). He claims that he is homosexual, in a homosexual relationship, and will face persecution and significant harm for these reasons upon return (including being forced to marry a girl).

2. The applicant applied for the visa to the Department of Immigration on 3 February 2014[1]. In support of his application he provided application forms, statements, and supporting documents including photos at various stages. The applicant attended an interview with the delegate. The delegate of the Minister for Immigration refused to grant the visa on 18 September 2014[2].

   [1] Sourced from the Notification of Refusal provided by applicant to the Tribunal.

   [2] Sourced from the Notification of Refusal provided by applicant to the Tribunal

3. This is an application for review of the decision to refuse to grant the applicant a Protection visa. The Tribunal wrote to the applicant inviting him to attend a hearing, noting that on the evidence before it, it was not able to grant his application. The applicant appeared before the current Tribunal on 17 December 2015 to give evidence and present arguments. The agent also attended. The applicant sought time to provide post hearing submissions, which the Tribunal granted. In the post hearing submissions, the applicant offered to provide sexually explicit photos to the Tribunal; the Tribunal wrote to the applicant inviting him to attend a second hearing on 3 May 2016, and stated that he should provide anything he relies upon to the Tribunal one week prior to that second hearing. He did not do so. After the first hearing, a country information assessment prepared by DFAT expressly for protection status determination purposes was issued, DFAT Country Information Report on Nepal, 21 April 2016 (the DFAT report), which the Tribunal forwarded to the applicant prior to the second hearing. The applicant and his agent attended the second hearing. Further evidence was forwarded to the Tribunal after the second hearing.

4. In accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the DFAT report.

5. The relevant law is set out in Annexure A. The applicant has been represented by registered migration agents in the application before the Department, and in the application for review.

   Claims made in protection visa application and initial statements

6. The applicant’s claims and background, from his protection visa application and first statement (24 January 2014) and his second statement dated 1 September 2014 (containing corrections in his first statement)[3] lodged with the Department, can be summarised relevantly as follows:

   [3] In his second statement, the applicant claimed that he had been assisted by a migration agent in preparing his first statement, and when this was read back to him by his current agent, he realised there were untrue and inconsistent statements which he has corrected by way of his second statement.

   ·     The applicant was born into a conservative Hindu family in Baglung, Nepal. His home is located [distance] away from the centre of the District. He has [specified family members].

   ·     He used to get teased at primary school because of his girly attitude and looks.

   ·     When he was growing up, he had a close friend, “D”. They would do many things together. When they became teenagers they had homosexual feelings and started touching (from about [year]). They became close physically, emotionally and mentally. During their schooling, they started to live together in rented premises. They had an intimate sexual relationship which no one suspected; in about [year] they started engaging in full sex.

   ·     In December 2007 they were caught by the applicant’s father in a compromising position. He verbally abused and beat them very badly. The applicant’s father went to D’s family’s house and told them what he saw. D’s parents were very upset and embarrassed because homosexuality is culturally, ethically and religiously not accepted in their society. They both felt bad. The applicant attempted suicide but his mother saved him. His parents asked him not to do it again and the applicant agreed. He was allowed to see D again and they continued their sexual activities.

   ·     [In] March 2008 the applicant was accused by Maoists of assisting the army; this was later changed to: the Maoists came to his home and said he should join them. They threatened his family and left. The applicant supported the Kingdom in the Constitutional Assembly Election of 2008. He became a supporter of the RPP (Rastriya Pragatantra Parti Nepal).

   ·     From July 2008 the applicant and D both studied at high school. It was not practical for them to live at home because of the distance, so for 1.5 years they rented a room where they stayed until the end of 2009. 

   ·     They returned home for a Hindu festival. They took the cattle out, and while looking after the cattle, they started hugging and kissing. They were seen and reported to their parents who were furious. The applicant’s father beat him and warned him to stop meeting D. The applicant and D left home without telling their parents and went to Kathmandu (it was claimed in the first statement that it was in about 2008 that the applicant went to Kathmandu; elsewhere in the second statement he says he left school before finishing, in around early 2010, and went to Kathmandu). The applicant started working as [an occupation]. He wanted to flee the country because of the threats from Maoists and social pressure of being gay. He started to hate his family and relatives and society. In his second statement he claimed that he became depressed and frustrated in Kathmandu because he was not able to satisfy his sexual desires and this is why he decided to leave Nepal.

   ·     In about 2009 his parents arranged a girl for him to marry. He did not like girls and started avoiding his parents and family concerning the issue of marriage.

   ·     D went to [Country 1] in early 2010 (he had money) and so their relationship ended.

   ·     In June 2010 the applicant met an agent who was sending people abroad. He didn’t have the money himself, but borrowed it from D and other sources.

   ·     The applicant came to Australia. Between his arrival [in] August 2010 and December 2013, he worked on farms in rural Victoria. He did not know what to do although he knew he would be detained if he was found by immigration. He was upset and stressed and thought about suicide and had lots of pressure on his mind due to his sexual orientation. He started working during the day and sleeping in a small house at the farm like a prisoner. He was so depressed that he never expressed himself to anyone.

   ·     In 2013 there was a raid on the farm and he was scared.

   ·     In about August 2013 he spoke to one of his co-workers and told him that he was gay, saying that he wanted to contact other gay males but he was scared. The co-worker encouraged the applicant to be brave, explained that being gay is not illegal or abused in Australia. In October 2013 he told the applicant about Mardi Gras. On his advice the applicant moved to Sydney, contacted a lawyer in January 2014, and lodged a protection visa application in February 2014.

   ·     He met his gay friend [Mr A] in January 2014. Then on 2 January 2014 the applicant moved into [Mr A’s] room as [Mr A] was looking for a flatmate. He did not say at that time that he was gay. Now they live happily together in a homosexual relationship.

   ·     The applicant and [Mr A] saw the applicant’s current agent together. They said they were gay and in a relationship; the agent now acts for [Mr A] in an application lodged pursuant to SZGIZ.

   ·     The applicant will face harm because of his sexual orientation, and his gay relationship is not acceptable to his family or society in Nepal and if he goes back he will be persecuted. He will not be able to access state protection in Nepal because the authorities are conservative when it comes to homosexuality. Even if he moves to other parts of Nepal, he will continue to face harm. The applicant also fears that he will be forced to marry a girl to protect their honour.

   Interview with the delegate and the delegate’s decision

7. The applicant attended an interview with the delegate on 4 September 2014 The Tribunal has listened to a recording of that interview which is contained on the Departmental file.

8. After the interview, lengthy submissions dated 15 September 2014 were provided by the agent to the delegate. In some sections, the submissions refer to a different applicant.[4] The submissions include reference to a 2011 study of homosexuality in Nepal by a University of Sydney academic, references to country information and previous Tribunal decisions. It was submitted that the applicant faces harm for reason of his membership of particular social groups “gay men in Nepal” and “gay men facing forced marriage” and that there was no effective protection; and that the security and political situation in Nepal remains volatile (it was not suggested by the applicant that this was relevant other than to his claim to be gay); that there is impunity for human rights abuses in Nepal; and that men should marry women according to cultural and religious obligations.

   [4] See reference to a “[name]” at paragraphs 128, 130, 137, 153, (df85 -83). The agent wrote to the Tribunal in December 2015 to note that this was an error.

9. Further country evidence and submissions were provided to the delegate[5], and statutory declarations were also provided from [Mr B] (the applicant’s friend and flatmate), [Mr C] (the applicant’s friend and flatmate), [Mr D] ([Mr A’s] friend), and [Mr E] ([Mr A’s] brother) which state variously that the applicant and his partner are gay, in a relationship, live in the same house and would be in danger if returned to Nepal.

   [5] The submissions are dated 12 June 2014 however the date appears to be an error, given they refer to country information dated August 2014 (df118).

10. Also produced was a statutory declaration from [Mr A] dated 15 September 2014 (in similar terms to the applicant’s statement concerning how they met and the development of their relationship); photos of the applicant and [Mr A]; and a post interview statement of the applicant (his third statement) responding to concerns raised by the delegate at interview as follows:

    ·     In relation to the delegate’s concern as to why D would pay [amount], being most of the applicant’s costs of coming to Australia, he did this because he knew that the applicant was struggling to leave Nepal, and he is from a rich family and had his own savings.

    ·     In relation to why the applicant did not become involved in gay sexual activities from more than three years after being in Australia, he said he is a very shy person who is scared to open up and discuss about his sexual orientation issues; the majority of the farm workers were Muslim Afghans and conservative Indians and he did not want to face bullying and vilification. He engaged in masturbation but he did not think of moving out of the farm because it was a safe place to him to stay. After immigration officers visited the farm in July 2013 he was scared for his future and safety. He then started to discuss with “white people” about his issues. His co-worker encouraged the applicant to get confidence to go to Sydney; however, because it was a harvesting period, the applicant stayed until the end of December to earn money to spend in Sydney.

    ·     In response to the delegate’s concern that it seemed highly unlikely that as soon as he came to Sydney he happened to meet a man who was also looking for a visa and within a few months they have a significant bond, the applicant said that he met him accidentally on the train and at the time he had no idea about his sexual orientation. He only discovered his sexual orientation when he discovered sexual photos of his partner with a man in his room.

11. The delegate was prepared to accept that the applicant is homosexual as claimed and currently in a homosexual relationship with his roommate in Sydney. The delegate noted that the applicant feared harassment and physical assault from conservative people, including the police, due to his sexual orientation and claimed that he will not have any family support will be unable to obtain work and so would experience significant economic hardship that threatens his capacity to subsist. The delegate considered country information and considered that, while Nepali society remains largely traditional in its mores and attitudes, the decriminalising of homosexuality has been a key step towards respecting and protecting the human rights of homosexuals and legalising of same sex marriage remains under consideration. Although some discrimination may be directed towards homosexuals, the delegate did not find that any such discrimination would amount to persecution or significant harm.

    The current Tribunal

12. The applicant provided a copy of the notification of the refusal of the decision to the Tribunal. He also provided further photos.

13. The Tribunal requested that, in accordance with the Practice Direction, one week prior to the hearing, the agent should provide a written submission setting out all claims made and maintained by the applicant, accompanied by a signed declaration of the applicant that the submission has been read and explained to him and that it accurately and completely represents his claims. This was not done, and no explanation was provided for this failure to comply with the Practice Direction.

14. As noted above, the applicant appeared before the Tribunal on 17 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], his claimed partner. The agent was present at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

15. The Tribunal noted that it had not received any submissions in accordance with the Practice Direction; all that had been submitted were photos from the agent. The Tribunal noted that the last statement had been made on 16 September 2014, and asked whether there was any further matter of interest or development or claim or anything else relevant to the case to tell the Tribunal, and the applicant said there is nothing except that about two months previously he received his work permit, but he is still doing part-time [work]. He confirmed that all of his written documents are all correct.

16. The applicant gave evidence about his claims. The witness also gave evidence. The Tribunal put concerns to the applicant, as well as information pursuant to s.424AA of the Act.

17. As noted above, the applicant provided a further statement dated 9 January 2016 after the first hearing. The Tribunal discussed the contents of that statement with the applicant at the second hearing (3 May 2016). Although the applicant had volunteered, in that statement, to provide further photos that he claimed were taken during sex to the Tribunal, and the Tribunal had invited him, prior to the second hearing, to provide to the Tribunal any further evidence upon which he seeks to rely at least one week prior to the hearing date, he did not provide such photos. When the Tribunal repeated to the applicant at the second hearing its concerns as to whether he was homosexual or in a homosexual relationship, he again offered to produce to the Tribunal photos and videos. The Tribunal noted that he had been granted plenty of opportunities to provide such material to the Tribunal. He forwarded further photos to the Tribunal after the second hearing. He did not suggest, in his post hearing material, that he sought to produce videos to the Tribunal.

18. At the second hearing, the Tribunal also discussed with the applicant the DFAT report, and asked him if he wanted to comment on it. He said that his family will reject him and all of society will hate him and he has no skills or money or property and he will not be supported by his family. The Tribunal also put its concerns to the applicant pursuant to section 91R(3) of the Act in relation to the applicant’s conduct in Australia; it also noted its concerns with his claims.

19. The Tribunal has referred to the evidence and information before it when relevant, below.

    FINDINGS AND REASONS

    Country of reference

20. The applicant entered Australia holding a false Nepali passport (in the name of [an alias], an Australian Student visa holder). He subsequently produced to the Department and the Tribunal a passport in his name which the Department confirmed to be a genuine document. The Department was prepared to accept his name, age and nationality. The Tribunal is also prepared to accept that the applicant, who spoke using a Nepali interpreter, is a citizen of Nepal, and that he is using his correct name and date of birth in the current proceedings.

21. The Tribunal accepts that the applicant is a national of Nepal, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Nepal.

    Credibility       

22. The Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

23. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

24. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

1. The Tribunal had a number of concerns about the applicant’s changing, inconsistent and not credible evidence as to past events, his sexual orientation and relationships, and what he feared upon return to Nepal. The Tribunal did not find the applicant to be a credible, truthful, or reliable witness in relation to matters central to, and related to, many of his claims. The Tribunal’s concerns are set out below. 

2. Firstly, the Tribunal was concerned about a number of inconsistencies and changing evidence concerning what happened after the applicant and his partner, D, were discovered by the villagers in December 2009, as set out below.

   Changing evidence about why he obtained a passport in his own name, why he did not accompany his boyfriend to [Country 1], and his subsequent evidence that despite having been outed as a homosexual, beaten up by his father and discriminated against by the villagers, he was willing to remain in Nepal

3. The applicant claimed that he had been in a relationship with D for about four years. When the Tribunal asked why the applicant did not go with D to [Country 1] when he went there in early 2010, he initially said that he did not plan to go because he had no savings. The Tribunal reminded the applicant that D was his rich boyfriend who had a lot of money. The applicant then changed his evidence to say that he did not want to go to [Country 1] because he had a plan to stay in Nepal and do things in Nepal. He had had this plan since Year 10 ([in year]) as he wanted to become a [specified profession]. The Tribunal noted he had chosen not to leave Nepal. This however was inconsistent with the applicant’s evidence to the Tribunal that the reason he obtained his passport (in his own name in January 2010) was because the incident in the village had occurred and he wanted to leave Nepal and go overseas. When the Tribunal put this inconsistency to the applicant, he said initially he got his passport because he wanted to go overseas but then the situation did not favour him. The Tribunal asked what that meant and he said he didn’t get the visa, so he didn’t go. The Tribunal put to the applicant that he had earlier told the Tribunal that he had not applied for a visa for any other country. The applicant changed his evidence again and agreed that he had not applied for a visa.

4. The Tribunal considers his changing evidence about whether or not he wanted to leave Nepal, why he did not accompany his boyfriend to [Country 1], and his subsequent evidence that despite having been outed as a homosexual in a relationship and having suffered harm for this reason, he was willing to remain in Nepal, to undermine his credibility.

   Changing evidence about when D started the process to go to [Country 1]

5. The Tribunal was further concerned because, according to the applicant’s statement, the reason why they had escaped to Kathmandu in [January] 2010[6], and why thereafter D had gone to [Country 1], was because they had been discovered by the villagers in a compromising position while tending to cattle in late December 2009[7]. This however was inconsistent with the applicant’s evidence to the Tribunal that D had started the process to go to [Country 1] in November 2009 (namely before the incident, and before they went to Kathmandu). When the Tribunal put this to the applicant, his evidence was evasive, and finally he changed his evidence to say that D had started the process to go to [Country 1] in January 2010 in Kathmandu. When the Tribunal asked why he had earlier said it occurred in November 2009, the applicant said he is confused and he forgot the dates. The Tribunal notes that the applicant volunteered the specific date of November 2009 and was able to give evidence about events and dates around that time; the Tribunal is not prepared to accept the applicant’s explanation. The Tribunal considers that this undermines the applicant’s claims that he and D moved to Kathmandu in January 2010 because their homosexual relationship had been discovered.

   [6] the date [in] January 2010 was given by the applicant at hearing

   [7] the date of late December 2009 was given by the applicant at hearing.

   Inconsistent evidence about moving to Kathmandu

6. The Tribunal noted that, according to the applicant’s application form, he moved from living near the high school ([named]) to Kathmandu in June 2010. This however was inconsistent with his claim to the Tribunal that he moved to Kathmandu in January 2010, immediately after the incident, to escape the villagers. When this was put to the applicant, he did not explain why he changed his evidence; he just said that he moved to Kathmandu in January 2010. The Tribunal considers that this inconsistency undermines his claims that there was an incident in late December 2009 and he felt he had no choice but to flee from his village to Kathmandu.

   Unlikely evidence concerning the applicant’s plan to remain in Nepal, and new claim made about discrimination at first hearing, and expansion of that claim (and further new claims) at second hearing

7. The Tribunal had further concerns about the applicant’s claimed plan to stay in Nepal since 2008. The applicant made a new claim at the first hearing that when he was studying away from home in April 2009, his friends found out about his sexuality and they started to discriminate against him and abuse him, and they did not want to be near him. He said that because of his “sexual condition” he could not remain in Nepal. The Tribunal put to the applicant that it did not understand his evidence that his plan to remain in Nepal remained unchanged from 2008 until some time in 2010 if, as he claimed he was homosexual, and he had been discriminated against and harmed [including previously beaten by his father and having to promise his family not to engage in homosexual acts] as a homosexual. The Tribunal considered that his evidence of his unchanged “plan” to remain in Nepal was contrary to his claims that he could not remain in Nepal because he was a homosexual. The applicant responded vaguely that he couldn’t stay because people started to discriminate against him and he can’t stay. The Tribunal notes however that his plan to remain in Nepal continued after the claimed discrimination (from his friends while studying in 2009). The Tribunal considers that his conflicting evidence and inability to provide a credible explanation for his claimed plan and actions undermine his credibility and his claims.

8. At the second hearing, the Tribunal asked further questions about the applicant’s claim that he suffered “discrimination” while he was living away from his home. The applicant then gave new, significant evidence about what had occurred. He told the Tribunal that a friend had seen him and D engaging in homosexual activities, and that everyone knew, the whole school and the whole society knew. He was teased and he was isolated. The whole school knew about it, all of society knew about it, and they complained to his family about his homosexuality and homosexual relationship in October 2009. His family tortured him when he came back home in December 2009.

9. The Tribunal expressed concerns that he had not previously raised this claim in his many statements, nor had he provided such details in his evidence to the Tribunal at the first hearing. In response the applicant said that the interpreter had not put down everything he had said in his statement, and he didn’t get a chance to tell the Tribunal before. The Tribunal put to the applicant that at the first hearing, he had been given an opportunity to say anything further; the applicant then agreed that he had been given that opportunity. The Tribunal was concerned that he had not previously mentioned this in his written material, noting that it was very significant, and further that (as discussed below) it appeared inconsistent with the circumstances he had earlier portrayed. The Tribunal asked the applicant whether he had mentioned it to the delegate at interview; the applicant responded that he had not. The Tribunal has considered the applicant’s explanations for the omissions; however, it does not find them persuasive. The Tribunal considers that if the applicant had been discovered when studying at high school to be living in a homosexual relationship with D, leading to him being isolated and discriminated against, and tortured by his family when he returned for the festival in December 2009, he would have mentioned this at an earlier stage. The Tribunal considers this undermines his credibility.

10. Further, the Tribunal had concerns with the credibility of these new claims, as follows:

    ·   The Tribunal put to the applicant that it was difficult to understand how, having been discovered in April/June or July 2009 by his schoolmates and all of society, to be living in a homosexual relationship, that, given his claims about the country situation (he told the Tribunal at one stage that he would be killed if he went back for being homosexual and in a homosexual relationship), he and D managed to continue to live together and attend school until December 2009.  The Tribunal suggested that it seemed unlikely that he had not been physically harmed, having regard to his own claims about the country situation. The applicant agreed that he had not been harmed.

    ·     The Tribunal also suggested that it appeared difficult to understand why, once he had been discovered as a homosexual and in a homosexual relationship and was suffering severe abuse and isolation, he continued living in his homosexual relationship and staying at high school. In response the applicant said that he had to complete his studies.

    ·     The Tribunal also put to the applicant that it was difficult to accept that his father was paying for his room so that he could continue living with his boyfriend, noting his father was previously horrified, and the applicant claims he had promised not to engage in such activities again. Further, it was difficult to accept that his family were aware he was living in a homosexual relationship from about October 2009, but allowed the applicant to continue living in that relationship until December 2009, paying for them to live in a single room together. In response the applicant said that he had received money from his father beforehand which he used to pay for the room.

    ·     The Tribunal put to the applicant that his father had apparently discovered for the second time that the applicant is a homosexual and in a homosexual relationship with D, he is horrified by this, and yet he apparently allows the applicant and D to go out and tend the cows together in December 2009, which is when they are caught engaging in claimed forbidden homosexual activity, and shamed by the villagers. The Tribunal put to the applicant that it was difficult to accept that his family (whose honour he claimed would be harmed) would have welcomed him back home, knowing that he had been living in a homosexual relationship for three months when he was at high school, and that the whole of society knew about it. The applicant responded that he was forcefully made to stay at the home and they were torturing him daily and there was no place for him to go. The Tribunal also put to the applicant that, if he had already been harmed by his father the first time he discovered the applicant’s homosexual activity, it seemed highly unlikely that the applicant would have returned to live with his family in order to attend a festival, after his family were aware that he had continued to engage in homosexual activity, in December 2009. In response the applicant said there was no place for him to go and there was a festival and he thought he would get love and affection during the festival so he went there. The Tribunal also put to the applicant that it seemed unlikely that, having regard to the history, he and his partner would then go into the hills with the cows and be caught kissing and hugging.

11. Further, when the Tribunal noted his failure to mention in his statements that his father was forcefully keeping him and torturing him, the applicant agreed that he had failed to mention it. The Tribunal noted that the applicant had portrayed the situation as him having been caught by his father for the first time in December 2007, and the next time he had been caught was when he returned home in December 2009, which made him flee to Kathmandu. The Tribunal considers that the applicant’s new claim at the first hearing (that he had been discovered living in a homosexual relationship in April or June/July 2009 and had continued living in that relationship until December 2009) and his new claim at the second hearing that his family were informed for a second time in October 2009 that he was homosexual (and living in a homosexual relationship while studying), yet his family invited him back for a festival in December 2009 (then tortured him and forcefully kept  him at home) to be highly unlikely. The Tribunal also does not find the applicant’s explanations to be persuasive.

12. The Tribunal’s concerns about the above matters and the applicant’s changing evidence undermine the applicant’s credibility and claims.

13. Secondly, the Tribunal was concerned with the applicant’s evasive evidence about his claim relating to his father catching the applicant and his partner for the first time in homosexual activities.

14. The Tribunal noted that, in his statement, he had claimed that it was while they were “having sex” that his father saw them through the window. Given that, 6 months later, his father allowed him and his partner to live together freely, paying for them to share a room (as discussed below), the Tribunal asked the applicant exactly what his father saw. Despite giving the applicant numerous opportunities to say what his father actually observed between the applicant and D (which the Tribunal considered to be relevant to the father’s subsequent conduct), the applicant avoided answering the question, instead when asked to be specific about what he was doing, and thus what his father had actually observed, he said they were “having sex”. When the Tribunal asked again, he then repeated parts of his statement (they were having sex and they were naked and his father saw from outside and his father broke the door and the applicant was suddenly wearing clothes and he was beaten). The Tribunal noted he was not answering the question, and it was asking him to be specific about what his father actually saw; the Tribunal asked if they were naked, he said yes. When the Tribunal asked again what his father saw, he said the father saw that they were naked and “having sex”. When the Tribunal again asked what exactly his father had seen, and asked whether they were kissing, he said yes they were kissing and “sexing”. Later, when the Tribunal noted he had mentioned in his statement having anal sex, and asked whether his father saw him having anal sex, and he said yes, D was in the missionary position and the applicant was behind him having anal sex. The Tribunal considers the applicant’s evasive evidence about what his father saw undermines the applicant’s credibility. The Tribunal has considered whether one of the reasons for the applicant’s evasiveness could have been that the applicant may have been concerned about giving such evidence; however the Tribunal notes he was able to provide details of his claims of homosexual activities in his statements, and he was prepared to accept the Tribunal’s (leading) suggestions about the sexual activities he was engaging in, which his father saw. The Tribunal considers that, if the applicant had actually been caught by his father engaging in sexual activities, the applicant would have been able to tell the Tribunal what his father had seen (what he and his partner were doing) when first asked. The Tribunal considers the applicant’s evasive evidence to undermine his claim that he was caught by his father having sex.

15. Thirdly, the Tribunal was concerned that it was not credible that the applicant’s father had caught the applicant and his partner D “having anal sex” in December 2007, yet thereafter he had permitted the applicant and D to move 6 to 7 hours bus-ride away, and to live together in a rented room for 1.5 years (during which time they freely engaged in sexual activities and continued their relationship).

16. The applicant claimed that homosexuality was reviled in Nepal; he told the Tribunal that his father had been really horrified when he had seen the applicant and D having anal sex, his father had beaten him, and that this conduct was ruinous to his reputation and the reputation of their family. In light of these claims, the Tribunal found it difficult to understand the claim in the applicant’s first and second statement that despite having being caught by his father having sex with D, his father thereafter permitted (and paid for[8]) the applicant and D to live together for 1.5 years in a single room.

    [8] As told to the Tribunal.

17. The Tribunal put to the applicant that it seemed difficult to accept that his “really horrified” father observed the applicant and his partner having full penetrative anal sex, but (as claimed in his statement) his father thought this was “just a teenage infatuation”. In response the applicant said his father tried to convince him not to do it. The Tribunal put its concerns to the applicant that, if his father was so horrified by what he saw in December 2007, it is highly unlikely that his father would permit, as well is pay for, the applicant to live with his partner from July 2008, for a period of 18 months, while they undertook their high school studies away from home. The applicant said that he had convinced his father that they would not repeat the activities. The Tribunal considers this to be highly unlikely in the claimed circumstances.

18. Fourthly, the Tribunal was concerned with the applicant’s claim that he was frustrated with not being able to express his sexuality in Nepal, that he borrowed a significant amount of money[9] ([amount]) and he used all of his savings, owed money to the agent, all to purchase a false passport and visa to travel to Australia, telling the Tribunal however that he knew nothing about Australia, including that he had no idea if homosexuality was even permitted, in the country to which he was supposedly escaping.

    [9] According to the applicant's first statement, [a larger amount] was a "huge sum which I didn't have", the total cost was [that amount], D had lent him [a large part of it], the applicant had collected around [amount], and owed [the rest] to the agent that he promised to repay when he was working in Australia.

19. The applicant claimed that he experienced frustration and depression while living in Kathmandu as he was not able to satisfy his sexual desires (because all he was doing was masturbating). The Tribunal asked the applicant what research he did about Australia before coming, and he said nothing. The Tribunal asked the applicant to indicate how much [the larger amount] would buy in Nepal, and he said at that time he could have bought land and built a house with that amount of money. The Tribunal put to the applicant that it did not seem credible that he was prepared to spend this amount of (mostly borrowed) money to go to a foreign country where he had no idea whether or not he could even express his homosexuality or not, he claimed to have no knowledge of the country at all (other than he could work illegally), and where he claimed that he was barely able to speak the language. In response, the applicant said that he didn’t know about this, he thought he could work and be free and there wouldn’t be any discrimination so he came to Australia. The Tribunal put to the applicant that it sounded like he had no interest in expressing his sexuality, because if he did, surely he would have determined whether he was moving to a country where he could express his sexuality. The Tribunal noted his evidence that he claims to face harm/discrimination in Nepal, he was choosing another country to where he could escape, he was in contact with D (who was prepared to lend him a significant amount of money so that he could escape Nepal), D had told him he should not come to [Country 1] as he could get killed in [Country 1], the applicant claimed to have a friend in Kathmandu who knew he is homosexual and who had helped the applicant, yet the applicant did not even attempt to enquire  whether, if he  came to Australia, he would face even worse harm for his homosexuality (for example like in [Country 1]) and whether could express his homosexuality, and whether it was legal or not.

1. The applicant said in response that his English is weak. The Tribunal noted that this did not appear to be a response to its concerns, he was at that stage in Kathmandu, a city which was open enough to hold its first gay march[10], and the applicant could have attempted to obtain information about an appropriate country to where he could travel in order to express his sexuality, and whether he could do so in Australia, yet he took no steps to do so. The applicant responded that he did not think to make any such enquiries; he just thought about going overseas and staying away from Nepal and his family.

   [10] This had occurred in August 2010 in Kathmandu, ABC Radio Australia, "Nepal leads on gay rights with international parade", 18 January 2012.

2. The Tribunal has considered his responses but does not find them persuasive. The Tribunal considers that the applicant’s claimed failure to make any enquiries about Australia and its attitude towards homosexuality prior to spending a significant amount of money to come here, undermines his claims that he was seeking to escape persecution on the basis of his sexual orientation, and that he was experiencing frustration with an inability to express his sexual orientation. The Tribunal also considers that his response that he thought he could be in Australia and avoid discrimination is inconsistent with his claim that he knew “nothing” about Australia. The Tribunal considers this undermines his claims to have been a homosexual and to have left Nepal in fear of harm by reason of his sexual orientation.

3. Fifthly, the Tribunal was concerned about the applicant’s delays in taking steps to protect his ability to stay in Australia, and in claiming asylum. He claimed that he was in danger in Nepal, where he was unable to express his sexuality, and he was so motivated to leave Nepal that he used a false passport and spent a significant amount of money to escape. Yet when he arrived in Australia there were a series of delays before he claimed protection, which the Tribunal considered were indicative that he did not have a genuine fear of persecution in Nepal, and that he had just come to Australia to work.

   Delay of three years and seven months in applying for protection after his arrival in Australia

4. The applicant arrived in Australia [in] August 2010. According to his evidence to the Tribunal, he bought his own computer to Australia, and from about 5 to 6 months after he arrived in Australia [January/February 2011] he had access to the internet on his computer, which he would use to watch movies or listen to music. The Tribunal put to the applicant its concerns about his delay in applying for a protection visa, noting that he had access to the internet and that he could have done some research. He responded that he did not know how to go to the website. The Tribunal suggested that he could have searched online for information. The applicant claimed that he didn’t have that skill, his English was weak, he didn’t know about those sorts of visas and he didn’t have anyone to support him. The Tribunal put to the applicant that he is a resourceful person who managed to survive without support in Kathmandu and Australia (where he claims not to know the language). In response the applicant said that he was scared to express himself in public. The Tribunal finds it difficult to believe that the applicant chose for several years to work, and that he would access the internet for movies and music, but he made no enquiries about whether homosexuality was legal or acceptable in Australia, or whether there were any solutions to his immigration problems. The Tribunal considers it highly unlikely that if the applicant’s claims were true and if he was a homosexual who feared harm in Nepal and was frustrated in Nepal for not being able to express his sexuality, that he would have made no enquiries, for a three year period, for example by undertaking internet research or contacting an immigration agent.  The Tribunal considers that this undermines the credibility of his claims.

   Inconsistent evidence concerning whether he did any research about protection visas once he was told of his options in August 2013

5. The applicant told the Tribunal that he told his co-worker in August 2013, after the immigration raid on the farm, that he was homosexual. The Tribunal considered his evidence about this conversation to be evasive. The Tribunal asked the applicant whether, during this conversation, his co-worker told him that he had any options, and he said yes, his co-worker told him during this conversation that he could apply for a visa. The Tribunal then asked the applicant whether, as a result of the conversation, he undertook research on the kind of visas he could apply for, and he said yes. However, when the Tribunal asked the applicant what he found out as a result of his research, he started to repeat contents of his statement (he told me go Sydney and you can meet a partner in a gay club…). The Tribunal asked the applicant to answer the question, and he then changed his evidence to say that he did not do any research about visas at that time. The Tribunal considers his changing evidence, and his subsequent evidence that, despite being scared that he would be found by the Department of Immigration, and that he would be returned to Nepal, he took no action to research visas once he was told in August 2013 that there were such visas, to undermine his claims and credibility.

   Delay in travelling to Sydney to apply for a visa once he was told of his options in August 2013

6. The Tribunal noted his co-worker had told the applicant in August 2013 that his solution was to go to Sydney. The Tribunal noted the applicant was scared of being discovered by immigration, and asked whether he left straight away to go to Sydney. The applicant responded no, he only left at the end of December 2013. The Tribunal put to the applicant that this was difficult to understand, given that he claimed to be scared, there had already been a raid on the farm, he is not allowed to work, he claims that his option is to go to Sydney, but he hangs around for a further four months. In response, the applicant said that he didn’t have money. The Tribunal noted that, according to his application form, he had been working and earning $1700 per month. In response, the applicant said the work was according to the season (he did not explain why he did not have any money). The Tribunal does not find the applicant’s responses to be persuasive. The Tribunal considers that his decision to remain, working for four months, instead of travelling to Sydney to apply for a visa, undermines his claims and his credibility.

7. The Tribunal notes that the applicant finally lodged a protection visa application on 3 February 2014, after he had been in Australia for 3.5 years. The Tribunal has considered the applicant’s explanation that he could not lodge a protection visa earlier because he was scared and did not talk to people about his issue; he was scared that if the other farm workers knew about his sexual orientation he would be expelled from the farm because of their different nationalities (for example, Afghani, Indian). The Tribunal is not satisfied by the applicant’s explanations for his delays. While the Tribunal accepts that the applicant may have been reluctant to tell people of other nationalities about his sexual orientation, the Tribunal notes his claim that he left Kathmandu because of his frustration with not being able to express his sexual orientation (and that masturbating was not enough); it also notes that he chose to stay in that situation for a further four months, and considers this (and his claim about a lack of money) to be unlikely. The Tribunal considers the applicant’s claim that he knew nothing about homosexuality in Australia, he did no research on this subject or about his precarious immigration status, despite having access on the farm to his own computer and the internet, to be highly unlikely, and that his failure to travel to Sydney when he was told of his options and instead choose to continue working, after there had been a raid, to undermine his claim that he feared being returned to Nepal because he would face persecution. The Tribunal considers instead that his actions indicate that he came to Australia on a false passport to work and earn money, and that, after there was a raid on the farm, he decided to travel to Sydney, at his own pace, and then lodge a protection visa application, delaying because he did not have a fear of persecution.

   Inconsistent evidence concerning the conversations with his co-worker

8. The Tribunal was concerned because the applicant’s evidence at hearing (that it was the conversation in August 2013 where he was told that homosexuality was not illegal, and that he had options concerning his immigration status), as set out above, was inconsistent with his claims in his second statement. In his second statement, he claimed that in August 2013 he told his co-worker that he is gay and wants to contact other males but he is scared. His co-worker told him that gay relationships are not illegal in Australia; it was only in October 2013 that he told the applicant that he could go to Sydney and meet lawyers to discuss his immigration matters. The Tribunal put to the applicant this inconsistency, and he just repeated what he said at hearing, he did not explain why his evidence was different to his statement. The Tribunal considers that if the applicant had been living in a state of limbo for three years, not knowing whether homosexuality was legal, not expressing his sexual orientation at all, and fearing being caught and returned to Nepal, he would provide consistent evidence about the conversations when he first learned that his sexual orientation was accepted in his country of refuge. The Tribunal considers his inconsistent evidence undermines his credibility.

9. The Tribunal considers that the applicant’s failure to use his skills, his (claimed minimal) English ability, intelligence, the internet or otherwise to make enquiries about how he could avoid going back to Nepal indicates that he did not have a genuine fear of return, and that (having regard to his claim of the country conditions for homosexuals) he was not and is not a homosexual.

10. Finally, the Tribunal was concerned about internal inconsistencies in the applicant’s evidence concerning his intentions for the relationship, and his claimed partner’s inability to explain why they were not already married.

11. The Tribunal asked the applicant questions at the first hearing concerning marriage. In his post hearing statement, the applicant said that he was confused with the term “marriage”, and instead he meant to refer to the registration of a “civil union relationship” under New South Wales law. Noting this assertion, the Tribunal noted that, at the first hearing, the applicant said that he could not have a registered relationship because they do not have any identification, they are here illegally, and they don’t have a house. The Tribunal put to the applicant that they are legally permitted to be in Australia while their protection visa applications are pending[11], confirmation of this (and confirmation of their identification) would be provided by the Department, and there is no requirement that they have a house in order to register a civil union relationship, noting the applicant’s claim that they were living together. When the Tribunal noted that the applicant’s objections to registering their relationship appear to have fallen away, he then said that they were going to register this civil union relationship, they just haven’t done so yet. The Tribunal asked him to explain why they had not done so yet, if he was now saying this was their intention. When it noted he was not answering the question, he just said that they are going to do so in the future. The Tribunal considered that his evasive and changing evidence undermined his credibility and his claim to be in a homosexual relationship.

    [11] Noting the applicant's reference to his partner having lodged a second protection visa application pursuant to SZGIZ.

12. The Tribunal was further concerned in this regard having regard to the post hearing statement, where the applicant indicated that because they know they are in a genuine homosexual relationship, they do not have any need to register their relationship. At second hearing, the Tribunal put to the applicant that this indicated that he did not have the intention to register the civil union relationship, which was inconsistent with his evidence at the first hearing. The applicant did not provide a response to adequately explain this inconsistency.

13. The Tribunal had further concerns, , because, as put to the applicant pursuant to s.424AA of the Act at the first hearing, his claimed partner gave evidence claiming that they were in a genuine relationship, however he was also not able to explain why they were not already married (as he said they wanted to marry). The Tribunal put to the applicant that this was relevant because, also having regard to the difficulties with the applicant’s evidence, the Tribunal would find that the witness’s evidence was not corroborative, but was given in order to support both the applicant’s claim, and his own separate claim, that he is a homosexual, noting that he has an interest in being found to be homosexual and in a relationship. The Tribunal would find that both are prepared to give evidence in support and that the evidence of the witness is not corroborative of the applicant’s claims which are made up. The applicant requested further time in order to respond, and the Tribunal agreed with this. In the post hearing statement of the applicant, he claimed that his partner meant to refer to a civil union relationship; this response does not however deal with the Tribunal’s concern as to why, even if the partner was referring to the registration of the civil union relationship, he was unable to explain why they were not registering the civil union relationship, given his evidence that they wanted to do so.. The Tribunal considers that this undermines the claims that the applicant is in a genuine homosexual relationship with his claimed partner.

14. On the basis of the above, the Tribunal does not consider the applicant to be a credible witness.

    Other matters

15. The Tribunal accepts that the applicant could have been nervous in appearing before it, or during the proceedings generally. The Tribunal does not however accept that this can explain the difficulties with his evidence.

16. The Tribunal has considered the following corroborative supporting evidence provided by and on behalf of the applicant; however it does not consider that any or all of the evidence overcomes its concerns and does not consider the evidence to be corroborative of the applicant’s claims. The Tribunal put to the applicant that such evidence could have been staged and organised for the purposes of the applicant’s claims lodged on 3 February 2014, and indicated that in considering refugee claims it would disregard the evidence if it considered that it was attended to in order to strengthen the applicant’s protection claims.

17. The applicant claims that he and his partner live together, play sports together, and represent themselves as a gay couple in social gatherings. The Tribunal is prepared to accept that they have lived together since January 2014 (according to the applicant’s evidence), one month prior to the applicant lodging his protection visa application; however, the Tribunal is not prepared to accept that they lived together in a genuine homosexual relationship. The Tribunal is prepared to accept that they play sports together; however, it does not consider that this means that they are in a genuine homosexual relationship.

18. The applicant provided bank statements, in the joint name of his claimed partner and himself, to the Department, which commenced on 9 May 2014[12] and continued until September 2015. The bank statements indicated money being put in and almost immediately withdrawn, not that funds were being accumulated. When the Tribunal asked the applicant about the bank account, he said that they were not able to save and that they just put money and took it out. The Tribunal is prepared to accept that, three months after the applicant lodged his claims, a joint bank account was opened. The Tribunal considers that this was done for the purpose of strengthening the applicant’s claims and not because the applicant is in a genuine homosexual relationship.

    [12] The applicant told the Tribunal that this was in about July or August 2014, however he could not remember the exact date. The Tribunal does not draw any inference about this.

19. The applicant’s claimed partner attended the first hearing and claimed (like the applicant) that they were in a sexual relationship and that they would suffer harm as a couple if returned. He had also provided a statement to this effect. The Tribunal noted the applicant’s evidence that his claimed partner has an outstanding protection visa application. While the Tribunal noted that consistent evidence was given in this regard, the Tribunal also had concerns about the evidence given by the partner as referred to above, and, in the circumstances, the Tribunal is not prepared to give any weight to the claimed partner’s evidence.

20. The Tribunal has also considered the statutory declarations provided from [Mr B] (the applicant’s friend and flatmate), [Mr C] (the applicant’s friend and flatmate), [Mr D] ([Mr A’s] friend), and [Mr E] ([Mr A’s] brother) which state variously that the applicant and his partner are gay, in a relationship, they live in the same house and would be in danger if returned to Nepal. As put to the applicant at hearing, people can make assertions in support of an applicant’s claims for a variety of reasons, but this does not mean that their statements are true.  Having regard to the Tribunal’s concerns, it is not prepared to place any weight on the supporting statements.

21. The applicant provided photos of himself and his claimed partner at various locations and in different poses throughout the process, showing the applicant and his claimed partner sitting together, lying together, with their arms around each other, in bed and on a bed, at a beach, kissing on the cheek, at a table with other people, standing at an indoor sports arena, at gay club/parties, in a park, and eating a cake. The Tribunal noted at hearing that photos can be staged. The Tribunal considers that even if the applicant had gone to gay clubs/parties, and had posed for pictures in public, and had taken pictures in the presence of other people, this does not overcome the Tribunal’s concerns with his evidence. The Tribunal considers that the photographs have been staged.

22. The Tribunal had expressed its concerns that it may find that the applicant is not a homosexual, and is not in a homosexual relationship, at the first hearing. In the applicant’s post first hearing statement, he claimed that as a couple they took photos while engaging in sex for their personal satisfaction which he offered to provide to the Tribunal to confirm that he and his partner are in a same sex relationship. The Tribunal wrote to the applicant, inviting him to a second hearing and giving him an opportunity to produce such photos but he did not. When this was noted at the second hearing, his evidence was evasive, finally he claimed he had been uncomfortable to produce the photos, however he suggested he wanted to do so now. The Tribunal did not find this explanation persuasive, noting that it had been his offer to provide them to the Tribunal in his statutory declaration; such photos had not been requested by the Tribunal. However, after the second hearing, the applicant produced a number of photos, including photos of the applicant and his claimed partner taking a photo of themselves at a party and eating cake (discussed above), as well as a number of other photos showing the applicant and his claimed partner and some unidentified persons) A generic advice from counsel, dated 22 March 2013, suggested it was not unethical to produce photos of sexual encounters. The Tribunal notes that there are two identical photos which appear to show the applicant and his claimed partner kissing. One photo shows the applicant naked and entwined with another unidentified male person’s limbs (face not visible). There are further three photos of two unidentified bodies (not faces) of two men: two photos show a penis being held by a hand, and another photo is suggestive of (without evidencing) intercourse (perhaps between two males but this is unclear). Having regard to the Tribunal’s credibility concerns, it is not prepared to accept that these photos are genuine, non-staged photos of the applicant and his claimed partner engaged in sexual activity.

1. The Tribunal has such significant concerns with the applicant’s credibility that the Tribunal is not prepared to place any weight on these photos, or the supporting statements or any of the other photos as evidence that the applicant is homosexual, nor that he is in a homosexual relationship.

2. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above, lead the Tribunal to conclude that the applicant is not a witness of truth and the applicant has fabricated his sexuality, an accounts of events in Nepal, as well as future fears and circumstances.

   Findings on the applicant’s claims

3. On the basis of the adverse credibility finding, the Tribunal does not accept that the applicant was a homosexual in Nepal, that he had a homosexual relationship in Nepal, nor that anyone suspected, accused or imputed him with being homosexual in Nepal, nor that he was distressed or adversely affected (or suicidal) for such reasons. The Tribunal does not accept his claim that he was threatened or isolated or beaten or harmed in anyway, nor that he fled to Kathmandu due to a fear of persecution. The Tribunal does not accept that the applicant came to Australia because he was homosexual or escaping a fear of persecution.

4. The Tribunal is not prepared to accept that any of the applicant’s claims of past harm were true. The Tribunal finds these claims have been fabricated for the purposes of his protection visa application, and that he travelled to Australia without a fear of persecution or harm in Nepal. Further, the Tribunal does not accept that the applicant was a homosexual in Australia but was scared to do anything about this for three years while working on farms, nor that he was distressed or suicidal for these reasons. Instead, the Tribunal considers it likely that the applicant came to Australia to earn money, and was working on farms out of choice, to earn money, and after the raid, considered that he should try to remain in Australia by making a (false) visa application.

5. The Tribunal put to the applicant its concern that his Australian activities, as discussed above, may have been done for the purposes of his claims, and that if it made such a finding, it would disregard such activities. The applicant said that this was not true.

6. Having regard to the adverse credibility finding, the Tribunal does not accept that the applicant has been a homosexual while in Australia, nor that he has engaged in any activities which could be construed as homosexual activities, as a homosexual. The Tribunal considers that all such activities referred to above have been done for the purposes of the applicant’s protection visa claims. The Tribunal considers that the applicant moved in with his claimed partner in order for the applicant to claim that he is a homosexual, in a relationship. The Tribunal is not satisfied that any of the applicant’s Australian activities which may be suggestive of him being homosexual or in a homosexual relationship were done for any reason other than for the purpose of strengthening his claims. The Tribunal is not prepared to give weight to these activities as evidence of the applicant’s homosexuality or his homosexual relationship. Thus the Tribunal disregards the photos, the attendance at bars and social events, the applicant moving in with and opening a joint bank account with his claimed partner, pursuant to s.91R(3) of the Act.

7. While the Tribunal does not disregard the applicant playing sport with his claimed partner, it does not consider that there is any reason to suggest that the applicant would face a real chance of serious harm or a real risk of significant harm for that reason (nor was it suggested that he would face harm for that reason). The Tribunal does not accept that the applicant intends to marry (or register a civil union partnership) with his claimed partner, either because he is a genuine homosexual or at all.

8. The Tribunal is not prepared to place any weight on the supporting statements or the applicant playing sport with his claimed partner.

9. For the reasons set out above, the Tribunal is not satisfied that the applicant is a homosexual or is in a homosexual relationship. The Tribunal is not satisfied that he faces a real chance of serious harm in Nepal on the basis of his membership of particular social groups of gay men, or gay men in a relationship, on the grounds that it does not accept that there is any chance that he would be perceived as belonging to such groups.

10. Therefore, the Tribunal does not accept that the applicant faces a risk (or chance) of harm as a result of any of the claimed consequences of being gay or in a gay relationship in Nepal. The Tribunal does not accept that the applicant will be targeted as a homosexual, nor as a homosexual in a homosexual relationship, nor that the family, community or authorities would target or harm him in any way for such reasons.

11. The applicant made a claim that his family would force him to marry a girl. This claim was linked to the understanding that he was a homosexual. On the basis of the adverse credibility finding, the Tribunal is not prepared to accept this claim, on the grounds of homosexuality, or otherwise because the applicant has asserted it. The Tribunal also does not accept that the applicant faces a real chance or real risk of being forced to marry someone against his will.

12. Another claimed consequence of the applicant’s claimed sexual orientation was that would not get a job, or accommodation, and he would be rejected by his family. As the Tribunal has not accepted that the applicant is homosexual, it does not accept that the applicant would be rejected by his family, nor that he would not be able to live with his family or get a job in Nepal. While he asserted in his post first hearing statement that Nepal is “poverty-stricken”, this was in the context of allowing foreign same sex tourism, and he did not suggest that he would not get a job for reasons other than being gay. At the second hearing, he suggested that he will be destitute, in the same context (of being gay) for reasons of rejection, isolation and that he has no skills (which is contrary to his evidence to the Tribunal that he has been a labourer and [an occupation] in Australia and has managed to survive financially despite not having a work permit and being unlawfully present, and that he managed to find work when he moved, as claimed, without family support, to Kathmandu). The Tribunal considers he will return to live with his family in Nepal, with whom he lived prior to coming to Australia, and if he seeks to obtain his own accommodation, he will be able to do so once he has obtained a job (noting that he is educated and has work experience). The Tribunal does not accept any implied assertion that this resourceful young man who has been able to remain in Australia, a  foreign country where he claimed he could barely speak the language, and support himself despite being unlawfully present, will not be able to manage in his own country, with his family’s support and sharing their accommodation.

13. The Tribunal asked the applicant at hearing whether there was anything else that happened to him in Nepal that he had not raised, and he said no, he has told the Tribunal everything. The Tribunal noted he had not mentioned having been teased because of his looks (as claimed in his statement) when he was younger. When the Tribunal asked whether he remembered this, he asked the Tribunal to repeat, and the Tribunal noted he had claimed that he had previously looked like a girl and was shy and behaved like a girl. The applicant responded that this had happened when he was a young child. The Tribunal noted he did not suggest that happened later and he said this had not happened later. The Tribunal considers that the applicant is not claiming that he faces any harm on the basis of his looks.

14. Further, the applicant said in his initial statement that he had been accused by Maoists of being in the army and he was fleeing the country because of Maoists and being gay. He changed this in his subsequent statement to: Maoists came to his home and said he should join them, they threatened his family and then left, without doing anything else; he supported the kingdom in an election and the political party RPP; he did not claim in that statement to fear any harm for any reason other than his homosexual orientation and his homosexual relationship. Nor did he suggest in any subsequent statements that this was relevant to any possible harm he may suffer upon return.  Despite being given an opportunity to tell the Tribunal all of his concerns and fears about returning to Nepal, the applicant made no mention of these matters at either of the two hearings, nor in the post first hearing statement (nor after the second hearing). The applicant did not suggest in his statements or at hearing that he faced any harm upon return to Nepal in relation to such matters. The Tribunal is not satisfied, having regard to the adverse credibility finding, that these assertions are true.

15. The Tribunal has considered the DFAT Report. The Tribunal is not satisfied on the evidence before it, including the DFAT report to which it has had regard, that the applicant faces a real chance of serious harm or real risk of significant harm in Nepal, for any reason.

16. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for a Convention reason now or in the reasonably foreseeable future in Nepal. On the basis of the findings of fact set out above, the Tribunal finds that it is not satisfied that the applicant has a well-founded fear of persecution for any Convention-related reason in the reasonably foreseeable future if he was to return to Nepal. Accordingly, the Tribunal is not satisfied that he meets the refugee criterion in s.36(2)(a).

    Complementary protection

17. For the reasons set out above, the Tribunal has found that the applicant has fabricated his claims of his sexual orientation, that he was a homosexual in Nepal, and that he is a homosexual, or in a homosexual relationship in Australia. It has found that he has contrived evidence and undertaken activities to support the existence of such false claims. The Tribunal has not accepted that any of the claimed past harm occurred in Nepal.

18. The Tribunal notes that s.91R(3) of the Act does not apply to complementary protection claims. The Tribunal thus has considered all of the applicant’s Australian activities as referred to above. The Tribunal has accepted that the applicant has engaged in activities such as having his photo taken and attending gay clubs and having a joint bank account and living with his claimed partner and attending social outings and organising supporting evidence. He has also staged photos to suggest that he has engaged in homosexual activities in Australia. The applicant has not suggested that anyone in Nepal would be aware of these activities and that for this reason he would suffer harm. As put to the applicant at the second hearing, there is no evidence to suggest that these activities (which the Tribunal has found were done falsely in order to support a protection visa application) would lead to the applicant suffering a real risk of significant harm in Nepal. The Tribunal is not prepared to accept that any of the applicant’s Australian activities mean that the applicant faces a real risk of  being imputed as a homosexual, or in a homosexual relationship, nor that he faces a real risk of significant harm in Nepal for any reason. Further, the Tribunal finds that the applicant will not repeat any of these activities in Nepal, because they were not genuine as he is not a homosexual nor is he in a homosexual relationship.

19. The Tribunal is not satisfied on the evidence before it, including the DFAT Report, that the applicant faces a real risk of significant harm for any reason in Nepal. The Tribunal considers that he will return to his home area, he will live with his family, he has work experience, initiative and is resourceful. The Tribunal does not accept that he faces being forced to marry. The Tribunal finds that there is no basis for the applicant's claims that he faces a real risk of significant harm.

20. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

    Member of family unit

21. 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).

    CONCLUSIONS

22. 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).  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). 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) for a protection visa.

    DECISION

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

Christine Cody
Member

ANNEXURE A - 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.

   Refugee criterion

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. 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.

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

6. 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.

7. 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.

8. 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.

9. 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

10. 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’).

11. ‘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. 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

1. 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.