1416611 (Refugee)

1416611 (Refugee) [2015] AATA 3751 (27 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1416611
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Christine Cody
DATE:27 November 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 27 November 2015 at 5:15pm

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 AND SUMMARY OF CLAIMS[1]
[1] The background information in paragraphs 2, 4 -10, is from her protection visa application form, her evidence, her pre-hearing submissions, and/or the delegate’s decision record provided to the Tribunal by the applicant.

The applicant claims to be a citizen of Nepal.
She arrived in Australia [in] December 2008 holding a student dependent (subclass 572) visa which expired [in] April 2011. She applied to the Department of Immigration for her first protection visa [in] April 2011, seeking recognition as a refugee. Her application was refused by the delegate [in] June 2011 and the applicant applied for review with the Refugee Review Tribunal (“the first Tribunal”), which was differently constituted. The first Tribunal affirmed the delegate’s decision on 16 December 2011. Thereafter, she applied to the Federal Magistrates Court and the Full Federal Court, both of which applications were unsuccessful. [In] July 2013 she applied to the Minister pursuant to s417 of the Act; the Minister refused to consider and accept her application [in] February 2014.
Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. On 24 March 2012, the complementary protection provisions were introduced. On 3 July 2013, the Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 (hereinafter referred to as “SZGIZ”) held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.
The applicant applied to the Department of Immigration a second time for a protection visa, pursuant to SZGIZ, [in] March 2014. Her claims were largely the same as those that had already been dismissed[2]. Her claimed background and claims from her current application forms can be summarised as follows:
[2] See summary of claims in delegate’s decision record provided to the Tribunal by the applicant.
·     She was born in [year] in [Village 1].
·     She speaks, reads and writes in Nepalese and English. Her ethnicity is Magar, and her religion is Hinduism.
·     She did not travel outside of her country prior to her current journey to Australia.
·     She has [number] years of education in Nepal, from [year] until July [year].
·     She left Nepal because she was disowned by her parents due to her inter-caste marriage. Things became worse for her. After she was widowed ([in] December 2007), she was raped by a Maoist leader. Since she could not live safely anywhere in Nepal, she left to avoid mental and physical harm and discrimination.
·     The police had arrested her and accused her of being involved in a Maoist protest and detained her. The police tortured her mentally and physically in police detention.
·     She fears that upon return she will be mentally and physically tortured and raped and sexually abused. She will suffer harm at the hands of Maoist, conservative people, and the police, because she has been disowned by her parents; she is widowed; and she opposes the Maoists because she was raped.
·     The authorities in Nepal are weak and corrupt and her complaints will be ignored if she does not bribe them. She does not trust the authorities.
·     She left Nepal illegally with the assistance of a broker using a false marriage document.
·     Her relatives are in Nepal: her parents [and siblings].
In her application form, she said she would provide a detailed statement: the Tribunal notes that at interview she provided the delegate with a copy of her Ministerial application dated [in] July 2013 which she had lodged pursuant to s.417. Additional claims and background in that s.417 application include the following:
·     She was raised in a low income family and was educated at a government school. Her daily life was dependent on income generated from farming.
·     She was forced by her parents to enter an abusive marriage in December 2006. The man was of the same caste, a wealthy person who could support her parents financially.
·     She was able to escape the abusive marriage with the help of a College friend. She went to [Town 2] where her friend had lived; she fell in love with him and they got secretly married [in] February 2007. She was not accepted by her parents because she married this man.
·     Before her marriage she supported the Maoists and later she became a member of the Maoists due to her husband’s influence.
·     They attended a protest [in] December 2007, where her husband was shot and killed by police. She was detained by police and suffered for two days (including knee injuries).
·     She went back to her husband’s house in [Town 2], a few weeks after his death she was raped by a local Maoist leader who came to her house. He threatened she should keep quiet or he would kill her.
·     She contacted her sister in [town], told her what it happened, abandoned the house, and went and lived with her sister.
·     She claimed it was difficult to live a normal life in Nepal due to humiliation and a fear of being raped or killed.
·     Her sister encouraged her to go overseas to live a normal life.
·     She is unable to go back to her war-torn country because she will be severely discriminated against and humiliated by the conservative people in the community. She will have no hope or future if she returns to Nepal. There is no political stability in Nepal and corruption and violence have wrecked her country. She cannot obtain protection.
She also claimed in her application form that she has documentary evidence to support her claims which will be provided; no such evidence was however provided.
The applicant attended an interview with the delegate [in] September 2014. At that interview[3], she claimed that her main fear about a return to Nepal was that she is a widow, and she is aware from the news that rapes occur every day with no legal action taken. She further stated that she recalls the incidents that took place when she was in Nepal and fears they could happen again. When questioned about the object of her fears, she acknowledged that she is afraid of criminals in general, and no longer the Maoists specifically. Although she spoke of a fear of rape and other physical dangers claiming to be inherent in living as a widow/single woman in Nepal, the delegate considered from her testimony that her predominant fears were more related to economic insecurity and low level social discomforts she expects to face if returned there.
[3] As set out in the delegate's decision record provided to the Tribunal by the applicant.
The delegate refused to grant the visa [in] September 2014. The delegate noted that her claims had already been considered by a first delegate, and the first tribunal. The findings made previously were set out in the delegate’s decision record which the applicant provided to the Tribunal:
The first delegate’s decision
·     The applicant demonstrated little knowledge of Maoist group activities or the then current situation of the Maoists winning a majority of seats in the 2008 elections in Nepal. She also lacked basic knowledge concerning the size of the town [Town 2], indicating she had not lived there.
·     She delayed leaving Nepal (for one year) until [December] 2008, when she could have fled to India earlier if she really feared persecution, rather than making a planned and orderly departure by ensuring she was accepted as a bona fide dependent spouse of a student visa applicant.
·     She applied for a protection visa only after the student who had declared her as his dependent advised he did not intend to include her on his application to extend his student visa in April 2011.
The first Tribunal’s decision
·     The first Tribunal had serious concerns about her credibility and noted aspects of her evidence were unconvincing and fabricated. It formed the view that she was not afraid of serious harm befalling her for whatever reason in Nepal at the time of her arrival in Australia, given the significant delay in lodging her protection visa.
In the course of the interview, it was put to the applicant that her claims of past harm, which had been thoroughly explored and dismissed by the first Tribunal, would be taken into consideration in her present application, and she was invited to provide any new information in support of her claims. Later, when it was pointed out that she had not provided any new information, the applicant questioned why the Department had called her to interview in relation to her second protection visa application, as after six years in Australia, she has no additional information to support her claims[4].
[4] As set out in the delegate's decision record provided to the Tribunal by the applicant, page 6.
The delegate considered that the applicant had not faced serious harm in the past in Nepal, there is no one who is likely to harm her if she returns, and she does not hold a subjective fear of harm. The delegate referred to country information and considered that the applicant would have the support of her sister and possibly her [other siblings], she has work experience in Australia, and she would not face a real chance or real risk of serious or significant harm.
The current Tribunal[5]
[5] The Tribunal has before it the Departmental file and Tribunal file relating to the current protection visa application proceedings. The applicant’s claims are set out in her protection visa application lodged with the Department; the file also contains a copy of the recording of the interview with the delegate; and the delegate’s decision record. At interview, the applicant produced to the delegate a copy of the s.417 application dated [in] July 2013, which was placed on the file. Copies of the delegate’s decision record from the first protection visa application as well as the first Tribunal decision record (1107043), court judgments and other Departmental notes are on the Departmental file.
The applicant provided a copy of the delegate’s decision record to the Tribunal, as well as submissions dated 12 January 2015. In those submissions she made a new claim about circumstances arising which meant that she faced renewed harm from the Maoist who harmed her previously. She also referred to circumstances more generally and claimed that she would face harm upon return. The Tribunal wrote to the applicant inviting her to attend a hearing, noting that on the evidence before it, it was not able to grant her application.
The applicant appeared before the current Tribunal on 19 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant confirmed to the Tribunal that she was previously refused a protection visa in Australia.
The Effect of SZGIZ and its relevance to this review
The Tribunal informed the applicant that it appeared, as a result of SZGIZ, that it did not have the power to consider her claims under the Refugee Convention criterion in s.36(2)(a), but that it could consider her claims under the Complementary Protection provisions in s.36(2)(aa) of the Act. The Tribunal noted however that some people argue that the Tribunal should consider both of these criteria in the second application. When asked if she had any submissions in this regard, she said that she did not.
The Tribunal explained the definition of refugee (including that what is required is a well-founded fear of persecution for one or more of five reasons: race, religion, nationality, political opinion, or membership of a particular social group; that what is required is a real chance of serious harm; and that there are exceptions to the definition which could be discussed if necessary, including state protection, relocation, and general violence) as well as the relevant definition for complementary protection. The Tribunal said it was important that the applicant tell the Tribunal all of the reasons why she doesn’t want to go back and it would consider whether her claims fell within the relevant criterion. The relevant law is set out in Annexure A.
The Tribunal noted that it was not bound to follow any of the delegate’s findings and that it would make its own findings based on all of the information before it. The applicant was asked about her claims and background. When asked what she feared on return she referred to her January 2015 submissions and said that her sister told her that the person who raped her has threatened to harm her. She repeated some other claims about the country conditions as relevant to her claimed circumstances. The Tribunal put concerns to the applicant, as well as information pursuant to s.424AA of the Act, and discussed country conditions.
Although, at hearing, the Tribunal was approaching the claims as if it was considering complementary protection, in addition to explaining the refugee definition at the commencement of the hearing and giving the applicant the opportunity to make submissions in this regard, the Tribunal raised with the applicant at hearing, when putting its concerns, that not only did it appear that she did not satisfy the requirements of a real risk of significant harm (for complementary protection), but that if the Tribunal was going to consider her claims under the refugee criterion, it also did not appear that she faced a real chance of serious harm (refugee criterion) for any of the reasons claimed.
After the hearing, the Tribunal became aware of the decision of SZVCH[6]. The Tribunal is satisfied that the applicant was provided with an opportunity to tell the Tribunal all of her claims, as relevant to both the refugee Convention, and complementary protection. The Tribunal has below considered the applicant’s claims; for ease of reference it has set out below the claims with reference to the complementary protection criterion, and thereafter the refugee criterion; although the Tribunal is aware that after SZVCH, the claims are to be determined firstly in accordance with the refugee criterion, and only if that fails, then with reference to complementary protection.
[6] The decision of SZVCH v Minister of Immigration and anor [2015]FCCA 2950 provides that the Tribunal should consider both the refugee and complementary criterion in SZGIZ-type cases.
The Tribunal has referred to relevant evidence and information below.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
Country of reference
The applicant produced to the Tribunal her current Nepalese passport (issued in Australia), and her previous passport, issued in 2005, used to travel to Australia in 2008). The Tribunal finds that the applicant is a citizen of Nepal and that Nepal is the receiving country for the assessment of her complementary protection claims.
The Tribunal notes that s.36(3) of the Act may be relevant in excluding Australia’s protection obligations if an applicant has a right to enter and reside in another country. Country information suggests that Nepalese citizens may have a right to enter and reside in India. However, for the reasons set out below, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that she will suffer significant harm (nor that she has a well-founded fear of persecution for a Convention reason). The Tribunal has accordingly affirmed the decision of the delegate to refuse to grant the applicant a Protection visa and has not found it necessary to consider whether the applicant has a right to enter and reside in another country such as India.
Credibility
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.
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.
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).
The Tribunal had significant concerns about the credibility of the applicant. The Tribunal had a number of concerns about her evidence as to past events, and what she 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, her claims. The Tribunal’s concerns are set out below.
Firstly, the Tribunal was concerned about the applicant’s delay in claiming asylum, and her preparedness to continue to make false representations to the Department about herself. According to her application form, the applicant left Nepal in 2008 because she was unable to live safely anywhere, and to avoid physical and mental harm. The applicant told the Tribunal that her primary reason for coming to Australia was for safety. As set out in her application form, she relied upon a false marriage certificate to claim that she was married to a man who was coming to Australia on a student visa. The Tribunal noted that although she came for safety, she was with a man she did not even know, and she delayed claiming asylum after her arrival for 2.5 years. Her visa was due to expire in April 2011 and she told the Tribunal that she was going to continue to represent herself as this man’s wife in order to obtain a permanent visa. The Tribunal put to her its concerns that she was prepared to continue lying to the Department that she was the wife of a man she hardly knew, 2.5 years after having lived in Australia. In response she said he told her not to say anything to anyone and she could get permanent residence. The Tribunal was concerned that the applicant was able to get and maintain employment and support herself, she was able to change addresses on numerous occasions (including in two states) in Australia, yet she claims she did not seek any advice on her immigration situation. She responded that she had come with him and she had to move and she was ready to go and do that work. When the Tribunal said this did not appear to respond to its concerns, and offered her a further opportunity to do so, she did not say anything further. The Tribunal considers that the applicant’s evidence, and her preparedness to continue to misrepresent her circumstances to the Department to achieve a goal of permanent residence, undermines her credibility. The Tribunal considers that if her claims were true, she would have made enquiries about her options so that she could seek safety, and not be tied to a man she did not know and about whom she had to maintain a claim that she was married.

Secondly, the applicant’s claims were based on her having been born in [Village 1], and having lived a poor life there with her parents. She had run away to [Town 2], 3-4 hours away on foot with her boyfriend to escape a marriage in December 2006[7]. These claims however were undermined by her conflicting evidence throughout the course of the proceedings about where her parents were living, as set out below:
·     She produced her first passport issued [in] 2005, which listed her father as her next of kin, and provided his address as in [Town 2]. This caused the Tribunal significant concern, as the applicant had claimed that she had run away with her boyfriend to [Town 2] in order to escape her parents and their plans for her to marry someone against her will.
·     At the second delegate’s interview in September 2014, she claimed that she did not know where her parents were living[8] despite having contact with her sister, and despite claiming that one of her [other siblings], who lives with her parents, had visited when she was living with her sister.
·     This evidence given at the delegate’s interview was inconsistent with the applicant’s evidence to the Tribunal, namely that her parents reside at [Village 1], that they have always done so, and they have never lived anywhere else.
[7] Her evidence to the Tribunal. Further, her prehearing submissions confirm that she and her family were living in [Village 1] before running away to [Town 2].
[8] As set out the delegate's decision record, page 5
The Tribunal asked the applicant why she told the delegate at interview that she did not know where her parents were living. She said she didn’t know. The Tribunal notes that she had claimed to the delegate that her [other sibling], who lived with her parents, came to visit while she was living with her sister [name], yet the applicant maintained her claim to the delegate that she didn’t know where her parents lived, and she never asked her [other sibling] where they lived. [9] The Tribunal put to the applicant that, given her parents were poor farmers who had never moved, it probably would have been significant news if they had moved, which her sister would have known about: in response the applicant said she doesn’t know. The Tribunal considers that the applicant’s inconsistent evidence about where the parents were living (especially given her subsequent evidence to the Tribunal that they always lived at the same place) undermines her credibility.
[9] See delegate’s decision record
When the Tribunal asked the applicant why her father’s address in her passport was recorded as [Town 2], she said she did not know. When the Tribunal noted that she told the Tribunal that her parents had never moved, so it did not make sense. She responded that her father used to go to other places as a [occupation] but she is not sure why that address is given for her father. The Tribunal put to her that this did not appear to be a reason as to why his address would be recorded as in [Town 2]. The Tribunal considers that the applicant’s inability to offer an explanation for this recording in her own passport undermines her credibility and claims.
The Tribunal considers that the applicant’s evidence undermines her claims that she was a simple girl who lived with her poor farming parents in [Village 1] all of her life until she ran away to [Town 2].
Thirdly, the Tribunal had concerns about the applicant’s marriage claims in Nepal (noting she claimed that her claim to have been married in Nepal to the man she came to Australia with, was untrue). The applicant told the Tribunal that she had been married once. The Tribunal noted however that the detailed letter she had forwarded to the Minister indicated that she had been forced in December 2006 to enter into an abusive marriage, and that she had escaped from an abusive marriage (before the marriage to her boyfriend). The Tribunal noted this indicated she had been in the marriage, as she would not know it was abusive unless she was actually in the marriage. Her response did not engage with the Tribunal’s concerns as to why she claimed to the Minister that she had been in an abusive marriage; instead she said that her parents were trying to get her married to the wealthy man of their choice. When the Tribunal noted that she had not engaged with its concern, she then said that she did not know how her letter had been translated. The Tribunal notes that the applicant claims to speak “a little English” and that she received the assistance from a friend to draft her letter. As the Tribunal put to the applicant, she had already been through the process once (making a protection visa application and then lodging reviews to the first Tribunal, then the Federal Magistrates Court, then the Full Court, which were unsuccessful), and it would consider that she would make an effort to ensure that the contents of her subsequent application to the Minister were true. The Tribunal has considered the possibility that this was a translating error however given its other concerns, it considers this to be unlikely. The Tribunal considers that her initial evidence to the Tribunal about whether the contents of her documents were true and correct to be vague and evasive. The Tribunal finds it highly unlikely that a mistake was made about whether she was in an abusive marriage, as opposed to the claim that she would be forced into a marriage but was not. The Tribunal considers this undermines her claims about her marriage(s) in Nepal.
Fourthly, the Tribunal considered that the applicant gave evidence which was not credible concerning her parents’ intentions and behaviour. As noted above, the applicant claimed that her parents, who were poor, were forcing her to marry a man when she was a young school girl aged about [age]. She ran away to [Town 2], and although her parents knew she was there (and although her father travelled to [Town 2] as she claimed at hearing), they did not come after her and force her to marry this man. The Tribunal considered this highly unlikely, and put this to the applicant. In response, she said they are not educated and were scared and maybe because she ran away the man may not want to marry her. The Tribunal responded that it seemed highly unlikely that her parents would be willing to lose any chance of improvement in their lives (noting her claim that they are very poor) just because, as a young schoolgirl, she chose to run away. She said they would think she didn’t exist anymore because she had harmed their reputation. The Tribunal put that if they were worried about their reputation, and society, then given they are controlling, and she claims she has no control over her life, it would seem likely that her parents would have taken control, brought her back home and forced her to do what they wanted, not least because of the financial benefits to them. On the evidence before it, the Tribunal is not prepared to accept her assertions. The Tribunal considers her claims and evidence to be highly unlikely and to undermine her credibility.
Fifthly, the applicant claimed that she was a supporter of the Maoists before her marriage, and later she became a member of the Maoists due to discussions with her husband; her husband was an activist, and she attended protests and was involved in other activities to support the Maoists (including that even after her husband’s death she continued to “follow Maoist principles”[10]). However, as put to the applicant pursuant to s.424AA of the Act, her evidence to the first Tribunal indicated that she appeared to have no real knowledge of the Maoists, and that her claims of supporting them were untrue. The Tribunal read out to the applicant an extract from the first Tribunal’s decision record:
The applicant was asked whether she remembered the elections in 2008. She was vague in her response. She was asked whether she remembered who the Maoist candidate was for Myagdi. She said she had forgotten. It was put to her that it would have been expected if she had lived with a Maoist activist she would know the name of the Maoist candidate. She said she remembered someone who might have been called [name]. She was asked if he had won. She said she could not recall. It was put to her that it was difficult to believe that she had ever lived with a Maoist activist or helped the Maoists in their activities if she knew so little about the politics of her area.
[10] Refer to her letter to the Minister that she provided to the delegate in the current proceedings, as well as her claims in the previous proceedings as set out in the delegate’s decision record (page 4). She also confirms in her her prehearing submissions that she supported the Maoists when she enrolled in college (according to her application form, she started college in August 2006).
The applicant claimed in response that she just supported her husband in his Maoist activities and she was supporting things at a very general level. The Tribunal notes however that the applicant claimed to be a Maoist supporter even before she married her husband; in the circumstances the Tribunal considers it unlikely that the applicant would have known so little about the Maoists, including about the historic elections in 2008[11], especially given her claims that she was married to a Maoists activist.
[11] The Guardian, Former Maoist guerrillas on brink of historic Nepal election victory: Former communist rebels in Nepal appear to be on the brink of a historic sweep in elections that will decide the political future of the Himalayan nation and end the rule of its 239-year-old royal dynasty, 14 April 2008, The Guardian, 24 April 20108, Former rebels conciliatory after victory in Nepal Nepal's former Maoist rebels emerged triumphant as the largest party in the country's new parliament last night, signalling they would work with the traditional politicians who have been routed. The Communist party of Nepal (Maoist) will end up with a shade fewer than 220 seats in the 601-member assembly, winning half the 240 constituencies and a third of the 335 seats allocated under proportional representation: >
Sixthly, the Tribunal had further concerns about the credibility of the applicant’s claims. For example, the Tribunal noted that she claimed to have been sexually assaulted in December 2007, and fearful of the Maoist leader who assaulted her thereafter. The Tribunal asked why didn’t she move away, to Kathmandu, where she could have got a job, noting that there are single people living there[12]. She responded that it is hard to live in Kathmandu because people ask for your family if you are looking for a room to rent and it is hard to find a job. The Tribunal noted she did not even try. She responded that is because it is hard. The Tribunal put to the applicant that it did not seem to make sense that if she was vulnerable, fearing being taken further advantage of and further sexual assault, she was prepared to come to a foreign country where she claims she didn’t even speak the language, with a man she didn’t even know, to whom she would have to pretend to be married. The Tribunal put to her that it seemed difficult to accept that she (or her sister) would put her in such a risky, vulnerable position, especially given her claimed previous sexual assault. Her response was Australia, being a foreign country, has respect for women and there is a place for women and if they need any help they can get it here and in Nepal it is the same scenario for women everywhere and her sister suggested Australia could be a better choice. The Tribunal considers that the applicant did not engage with its concerns, and finds it difficult to accept that she would agree, or that her sister would send the applicant, a young girl, aged [age] years, who had been sexually assaulted and widowed, to a foreign country with a stranger to whom she had to pretend to be married, where she could not even speak the language. The Tribunal considers this highly unlikely, and considers that this undermines her credibility.
[12] An article in the Nepalese press states that there is an increase in the divorce rate especially in urban areas in Nepal and 80 per cent of the cases had been filed by women; it cites senior lawyer Sudheer Shrestha who stated ‘women are enlightened now…they don’t want to be in a suppressed and an abusive relationship”. This would suggest that there are women who chose to be single (or divorced) in Nepal, including those with children, and that they are better able to live independently: ‘Nepal: On divorce’ 2011, Republica (Nepal), 13 May < 9 May 2012
The Tribunal had a further concern about the applicant after the claimed sexual assault. She told the Tribunal that she continued to live in the house for a further 2-4 weeks after the assault. The Tribunal considered this hard to accept, given she had been sexually assaulted by a powerful person who knew where she was living. The Tribunal did not understand why she did not leave as soon as possible for her sister’s home in [town] (3-4 hours away). In response to this concern she said he threatened her not to say anything to anyone else. The Tribunal notes that she did tell her sister and go to her sister’s place; but after a period of two to four weeks remaining in the house. She did not explain why she did not do so earlier, nor why she changed her mind and told her sister. The Tribunal considers her claim to have remained in the home to be unlikely.
Seventhly, the Tribunal was also concerned with the applicant’s new claim that after 9 years, the person who assaulted her now wants to harm her. The applicant made this new claim in her submissions dated 12 January 2015. She claimed that her sister recently happened to tell a friend, who is a Maoist, about the Maoist leader who had raped the applicant. That friend became angry and told Maoists about it, and it was decided that if the Maoist leader had done this, he will be killed or imprisoned. The Maoist leader became worried and threatened to her sister that if the applicant returned, he will kill her.
This new claim caused the Tribunal significant concern. The Tribunal considered it highly unlikely that her sister happened to speak about the assault 9 years later, which happened to result in these specific threats to the applicant’s life. The Tribunal’s concerns were heightened because of the applicant’s claim of the shame that attaches to a rape victim and how that person is shunned by her backward society; in such circumstances it seemed very unlikely that the applicant’s sister would reveal this shameful matter about her sister. The Tribunal considered it more likely that this claim was made in response to the delegate’s discussions with the applicant at interview, as put to the applicant at hearing pursuant to s.424AA of the Act.
The Tribunal put to the applicant that she said to the delegate at the interview [in] September 2014 that she wasn’t really worried about Maoists, she was just worried because she is a widow and she may face harm. In response, the delegate said to her it seems that she is generally worried about criminals and not Maoists, and the applicant agreed. The delegate then put to her that what she was saying was not enough to be eligible for a protection visa, and instead she needs to be personally targeted.
In response, the applicant said that she did not mention this at the interview as there was no news about it; it only happened afterwards that the talk and threats occurred.
The Tribunal considers that the new claims of personal targeting, due to a claimed revelation of the sexual assault 9 years after it occurred, to be highly unlikely, and when considering the emergence of this claim made a few months after the delegate’s interview and the delegate’s refusal of her claims, it appears likely that the applicant may have made up this claim because the delegate told her of a “need” to be personally targeted. The Tribunal considers this undermines her credibility and her claims.
On the basis of the above, the Tribunal does not consider the applicant to be a credible witness.
Other matters
The Tribunal accepts that the applicant could have been nervous in appearing before it, or during the proceedings generally.
The Tribunal was concerned throughout the hearing with the applicant’s failure to answer questions; her interruptions of the interpreter, and her portrayal as a person who was somewhat simple. The Tribunal notes that she was educated, able to speak in an eloquent and articulate manner, she understood and responded to some of the Tribunal’s concerns, as well as information pursuant to s.424AA of the Act. The Tribunal does not accept that she is simple. The Tribunal has considered her claims that as a result of the death of her husband and her claimed sexual assault, she has emotional wounds that will continue for the rest of her life. The Tribunal is satisfied that the applicant was able to present evidence and arguments to the Tribunal, and understand the proceedings. The Tribunal is not satisfied on the evidence before it that these matters can explain the difficulties with her evidence.
The Tribunal accepts that the applicant has given some consistent evidence throughout the process (for example that she had been sexually assaulted and her husband was killed), however having regard to the concerns above, the Tribunal is not satisfied that this is sufficient to overcome the Tribunal’s concerns.
The applicant did not seek to rely upon any documents in the current proceedings. The Tribunal notes that in the previous proceedings the applicant produced the marriage certificate between her and her claimed husband and the death certificate for her claimed husband, referred to in the current proceedings pursuant to s.424AA of the Act. The Tribunal notes the applicant’s admission that she was responsible for producing fraudulent documents in order to secure a Student Dependant visa (including a marriage certificate to someone else) and, taking into account its concerns, it is not prepared to place weight on any documents she has provided in support of her claims other than the passports in her name. The Tribunal’s concerns in this regard were heightened by the country evidence concerning the availability of fraudulent[13] documents, as put to the applicant.
[13] An Immigration and Refugee Board of Canada response to information request dated 26 January 2009 indicates that Nepalese documents can be obtained by fraud. The response to information request refers to correspondence in November 2008 from an official at the Canadian High Commission in New Delhi who dealt “primarily with identity documents from India as well as Nepal”: “My experience is that any Nepalese document can be obtained by fraud. These may include falsely obtained, forged or complete counterfeits. I have personally seen and seized counterfeit passports, driver’s licences and company identification cards that are complete counterfeits or are altered. (Canada 26 Nov. 2008)… Several Kathmandu Post articles address the acquisition or use of forged and fake documents in Nepal by private citizens (The Kathmandu Post 7 July 2008; ibid. 29 June 2008; ibid. 6 Nov. 2008)”: Immigration and Refugee Board of Canada 2009, NPL103010.E - Nepal: Prevalence of forged, fake or falsely acquired documents, including identity documents, professional certifications, membership cards and employment records, 26 January – Accessed 4 May 2010
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 accounts of events in Nepal, as well as future fears and circumstances.
Findings on the applicant’s claims of events in Nepal and future fears

On the basis of the adverse credibility findings, the Tribunal does not accept that: the applicant was threatened or forced into a marriage against her will; that she ran away to be with her boyfriend of a lower caste who she subsequently married; that she was disowned by her parents and has no relation with her family other than her sister; that she had any relation to a Maoist activist. The Tribunal does not accept that the applicant was connected to the Maoists in any way, whether as a member, married to an activist, or attending any activities on their behalf. The Tribunal does not accept that she was arrested and detained because she was involved in a Maoist protest, nor that she was harmed by the police while in detention. The Tribunal does not accept that she was imputed by the authorities with supporting or being a member of the Maoist. The Tribunal does not accept that she was or is widowed, nor that she was sexually assaulted by a Maoist leader, nor that she faces harm from that Maoist leader as a result of her sister telling others she was raped. Further, the Tribunal does not accept, as claimed in her prehearing submissions, that now, 9 years after the sexual assault, news of the sexual assault against her is spreading in the community and thus she will be discarded by society, subjected to discrimination and hatred, no one will marry her, she will be ostracised and will find it difficult to get a job or to rent a room. The Tribunal does not accept that she was sexually assaulted, thus it does not accept those claimed consequences of such an assault. The Tribunal does not accept that the Maoists (or anyone) have asked about the applicant’s whereabouts since she has left Nepal, or have ever held an adverse interest in her.
The Tribunal finds that she has fabricated these claims, and as there is no other claimed reason to support that she has no relation with her family members, the Tribunal finds that she does have relationships with her family members in Nepal. The Tribunal does not accept her claim that the last time she had contact with her parents was in December 2006 when she claims she ran away. The Tribunal also notes that in her prehearing submissions, she claimed that the people in her tribe are backward and slaves to tradition. Even if the Tribunal accepted this assertion, which it is not prepared to do on the basis of the adverse credibility finding, it notes that her sister, on her evidence, was permitted to travel to and reside in [another country], and that her sister financed the applicant’s travel to Australia. The Tribunal considers that the applicant’s parents agreed to and supported the applicant’s travel to Australia. The Tribunal is not satisfied on the evidence before it that the applicant faces a real risk of significant harm (or a real chance of serious harm) due to any tribal attitudes.
At hearing the Tribunal asked her what she had suffered when she lived in Nepal, as a widow. She claimed that she faced discrimination as a widow from the community when she was in Nepal, and that she felt isolated. When asked to explain, she said she would be told not to attend weddings or prayers. The Tribunal does not accept these claims of past harm, as it does not accept that she was a widow.
The applicant made many assertions on the basis of her claimed vulnerability, status as a widow and her gender. The Tribunal accepts her age and that she is female, however it does not accept her assertions as to what may befall her as a widow, former Maoist, person rejected by her parents, or former victim of sexual assault.
The applicant made claims about the security, political situation and the authorities (including corruption and a lack of protection) in the country. She claimed for example that anything could happen and she could be killed for any reason. The Tribunal has considered these claims in the light of her circumstances as found, namely that she is a single woman, very resourceful, who has managed to survive in a foreign country where she did not speak the language.
As noted above, the applicant made a number of assertions about the country situation in Nepal; and she produced the delegate’s decision record which refers to country information. The Tribunal is not prepared to accept the applicant’s assertions, but it has considered the available country situation.
The applicant said to the Tribunal that in the context of Nepal today there are more possibilities that she will be harmed, killed. The Tribunal asked if she was suggesting that there are more killings now, after the conflict has stopped and there is a peace accord with Maoists, and she responded yes only if anyone wants anything people can get anything and there is no law and order. The Tribunal put to the applicant that it seemed speculative that she would suffer harm for the reasons she was claiming. In response she appeared to agree, and then said regarding those things, it could be, but anyhow she will be killed by those Maoists. The Tribunal has already not accepted those claims.
According to the South Asia Terrorism Portal’s Nepal Assessment 2015, no Maoist insurgency related civilian deaths were record during 2014:
The environment of peace that had been established in Nepal in 2013 survived, despite challenges, through 2014, with not a single insurgency-related fatality on record. Significantly, since March 2000, when the South Asia Terrorism Portal (SATP) database commenced compiling data on insurgency-related fatalities in Nepal, it was in 2013 that the Himalayan Nation did not record a single insurgency-related fatality during the course of a year, for the first time, and remained completely free of insurgency-related violence. At its peak in 2002, the insurgency saw 4,896 persons, including 3,992 Maoists, 666 Security Force (SF) personnel and 238 civilians, killed in a single year.[14]
[14] South Asia Terrorism Portal 2015, Nepal Assessment 2015, para.1 < Accessed 23 March 2015
On the evidence before it, the Tribunal is not satisfied that the applicant faces a real risk of significant harm (or a real chance of serious harm) from Maoists, nor that she faces a real risk (or a real chance) of significant (or serious) harm in the form of being killed, or harmed in Nepal, from anyone (including the police or authorities) or for any reason. The Tribunal does not accept her assertion that there is no political stability in Nepal nor that her country is wrecked by corruption and violence such that she faces significant or serious harm there. On the evidence before it, the Tribunal is not satisfied that she faces a real risk of significant harm (or real risk of serious harm) on the basis of the security, political situation or the authorities of the country. The Tribunal considers that the applicant is prepared to make any claim in order to obtain her goal of remaining in Australia.
The applicant claimed at hearing that as a single (widowed) woman, people with the wrong attitude may want to take advantage of her. The Tribunal noted that she was not taken advantage of when she lived with her sister previously for one year. In response, the applicant said that this was just a one year period and now it is forever. The Tribunal put to her that she was much younger and more vulnerable then (newly widowed as claimed) and people had plenty of opportunity to take advantage of her. The Tribunal noted that she now has much more experience, she has survived in a foreign country and less vulnerable. The Tribunal has not however accepted that she is widowed.
The Tribunal notes that in her submissions to the Tribunal the applicant asserted that Nepalese single women are treated as unlucky and it is a curse for her to live in Nepal if she returns. On the evidence before it, the Tribunal does not accept this claim. The Tribunal also put to her that it did not appear that she faced a real risk of significant harm (or real chance of serious harm) in Nepal for any reason.
The Tribunal is not satisfied that the applicant faces severe discrimination as claimed or humiliation by conservative people and the community, nor that she faces no hope or future in Nepal. The Tribunal is not satisfied that she will be subjected to significant harm (or serious harm) by “conservative people”, nor society.
The Tribunal has not accepted that the applicant has previously suffered violence as a woman in Nepal, despite having spent [number] years of her life there. The delegate’s decision record refers to Nepal being a largely traditional and patriarchal society where it is the norm for women and men to be married. It noted that a number of women are single after the conflict (widowed) and that there are organisations providing them with training in leadership skills, and general support[15]. The Tribunal also refers to the USDOS report and (while it acknowledges the reference in the report to violence against women being a problem in Nepal), the evidence did not indicate that circumstances were such that the applicant faces a real risk of significant harm[16]. As discussed above, in Nepal, women have been choosing to be single: further, the Tribunal notes that:
· In May 2011, an article in Republica reported that the average age for divorce in cases filed with the Kathmandu District Court was between 20 and 35 years. It stated that women had become able to put aside social stigmas relating to the breakdown of marriages, and that urbanisation, modernisation and female empowerment have “strengthened women to take bold and radical steps which were once considered taboo in Nepali society”. It noted that greater financial security and job opportunities also contributed to women being able to initiate divorce.[17]
· An editorial in The Kathmandu Post in October 2010 earlier reported that the reasons for the rising divorce rate included the 2006 legislative changes that had “allowed women the legal option and the means to leave their spouse”, but additionally stated that “along with the growing acceptance of ‘love marriages’, the social stigma attached to getting divorced is slowly loosening”.[18]
[15] Page 9-10 delegate’s decision record provided to the Tribunal by the applicant.
[16] According to the USDOS 2014, released in 2015, “Violence against women remained a problem. Under the civil code, prison sentences for rape vary between five and 15 years, depending on the victim’s age. The law also mandates five years’ additional imprisonment in the case of gang rape, rape of pregnant women, or rape of a woman with disabilities. The victim’s compensation depends on the degree of mental and physical abuse. The legal definition of rape includes marital rape for which the husband can be jailed for three to six months. The statute of limitations for filing rape charges is 35 days. Human rights groups highlighted concerns with the statute and implications for addressing sexual violence committed during the country’s 10-year conflict….Most incidents of rape went unreported, although in the rape cases that were reported, police and the courts were responsive. During fiscal year 2013-14, there were 912 cases of rape and 414 cases of attempted rape filed with police, compared with 677 cases of rape and 245 cases of attempted rape in the previous fiscal year, according to the Women and Children Service Directorate, commonly known as the Women’s Police Cell, a special Nepal Police unit that investigated crimes against women and children: ‘On divorce’ 2011, Republica, 13 May, FACTIVA – Accessed 15 May 2012
[18] ‘It’s complicated’ 2010, The Kathmandu Post, 28 October < Accessed 15 May 2012
The Tribunal notes that the USDOS states that discrimination against women is a problem, however the applicant was primarily claiming discrimination as a widow, a claim that the Tribunal has not accepted. The applicant did not suggest that because she was female (or for any other reason) she had suffered discrimination in the past (other than in relation to claims that have not been accepted by the Tribunal). While the Tribunal accepts that there is discrimination against women, it is not satisfied that in her individual circumstances she faces a real risk of significant harm (or a real chance of serious harm) from discrimination.
On the evidence before it, the Tribunal is not satisfied that the applicant, in her individual circumstances returning to her home area in Myagdi where she has always lived, faces a real risk (or real chance) of being vulnerable to and facing significant (or serious) harm as a woman, from Maoists, criminals, society or the authorities. The Tribunal does not accept the applicant’s claims in her submission to the Tribunal that if she returns she will live a life in horror, mental strain and fear.
Further, the applicant claimed that she would not be able to obtain protection from the authorities of the country. The Tribunal is not satisfied that the applicant faces a real risk (or a real chance) of needing to access such protection.
The Tribunal is not satisfied on the basis of the evidence before it that the applicant faces a real risk (or a real chance) of significant (or serious) harm in the form of being killed, or harmed or taken advantage of or any other harm in Nepal, from anyone or for any reason. Further, it does not accept on the evidence before it that she faces a real risk (or real chance) of discrimination or humiliation from conservative people or the community or the police amounting to significant harm (or serious harm). Further, as the Tribunal does not accept that the applicant faces a real risk or real chance of harm, it does not accept that she will need (and/or will be denied) state protection.
Economic matters
As set out the delegate’s decision record: the question of economic security was put to the applicant by the delegate at interview; it was noted that her sister who has helped her in the past could offer her support again. She agreed she could live with her sister initially, but said that she cannot stay with her sister all her life and that she wishes to be independent and live by herself. She claimed this is difficult in Nepal as landlords prefer to rent accommodation to families. She did not comment on the suggestion made to her that she could later find work, given that she is still young and has worked satisfactorily in Australia. The delegate found that concerning her personal circumstances, she would have the support of at least her sister and potentially her [other siblings] and taking into account her age, and the fact that she has demonstrated her employability by working for one employee in Australia, the delegate did not accept that, were she to become responsible for her own subsistence in Nepal, she would not be able to provide adequately for her basic needs[19].
[19] Refer to the delegate’s decision record provided to the Tribunal by the applicant.
The Tribunal put to the applicant that she was an educated and resourceful person (with four years of work experience), and that she could also obtain support from her family in Nepal. It notes that she had chosen to come to Australia, a foreign country where she was unable to even speak the language[20], with a person she did not know, yet she managed to work and change addresses (and states) rather frequently:
· According to her application form she worked from 2009 until 2013 for an employer as a [occupation]. She told the Tribunal that she worked during that period in [industry]. She claimed that she stopped working in 2013 because she no longer had permission to work, and that since then she had survived on a “donation” from her work, savings she had accumulated, a tax refund, and friends have been providing her with money.
· According to her application form she initially resided in a [suburb], then she moved to [another state]; in [that state] she changed addresses once; then she moved back to [the first state] and had lived in three different [suburbs] by the time she lodged her second protection visa application. She told the Tribunal that she was only able, after 7 years in Australia, to speak “a little” English. She claimed that on each occasion she located her new accommodation through “friends”.
[20] Her evidence to the Tribunal.
The Tribunal considers her evidence indicates a very resourceful person who is able to survive and accumulate savings in a foreign country where she claims she can barely speak the language. The Tribunal is not satisfied on the evidence before it that she would be unable to survive in her home country, nor that she faces a real risk of significant harm or a real chance of serious harm for economic, accommodation or financial reasons.
Christianity
The applicant claimed in her application form lodged in [March] 2014 that she was a Hindu. She told the delegate at interview in September 2014 that she had become a Christian and was attending church. There was no claim made that she feared harm on this basis; the delegate did not mention religion as an issue in refusing her claims. The applicant then lodged lengthy, 8 page submissions to the Tribunal in support of her claims; there was no mention of her religion in those submissions. When given numerous opportunities at hearing to tell the Tribunal what she feared or caused her concern upon return, she did not make any mention of any religion. The Tribunal is not satisfied at this time that the applicant has converted to Christianity. The Tribunal notes that, even if she had converted, there was no suggestion that this would lead to a real risk (or real chance) of harm, nor was there any evidence before the Tribunal to suggest this. The US Department of State International Religious Freedom Report 2013 – Nepal notes that the 2007 interim constitution provides for religious freedom. According to the report, Nepalese law does not prevent religious conversions. Moreover, various religions generally coexist in harmony: The law allows personal conversion to a different religion…..Those who chose to convert to other religions, in particular Hindu citizens who converted to Islam or Christianity, were generally unafraid to state publicly their new religious affiliation[21]. The Tribunal is not satisfied on the evidence before it that the applicant faces a real risk of significant harm (or a real chance of serious harm) due to religion.
[21] US International Religious Freedom Report for 2013, >
On the evidence before it, the Tribunal is not satisfied that the applicant, whom it has found has not been truthful about her circumstances back in Nepal, faces a real risk of significant harm upon return to Nepal, because she is a woman, the country conditions generally, or for any other reason.
Conclusion on the applicant’s complementary protection claims
The Tribunal has found that the applicant is from Nepal, is a single woman who has studied in Nepal, has worked in Australia, is resourceful and will return to live and work in her home area, where her family members reside, and otherwise is not a truthful witness about her circumstances.
Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied that the applicant faces a real risk of significant harm in Nepal.
The Tribunal finds there is no basis for the applicant's claims to fear significant harm. 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 she will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).
Refugee claims in relation to the applicant

As noted above, the Tribunal invited the applicant to refer to the refugee criterion in the event that it was wrong in saying that it should not consider the refugee criterion. The applicant did not submit that her claims should be considered under the refugee criterion.
The delegate’s decision considered, and rejected, her claims on both refugee and complementary protection grounds. The Tribunal has also considered the applicant’s claims under the refugee criteria.
The Tribunal considers that the appropriate country of reference for the assessment of her refugee claims would be Nepal. For the reasons set out above, the Tribunal has found that the applicant is not a credible witness, and it does not accept that her claims of past harm or future feared harm are truthful. The Tribunal has not accepted that the applicant has been threatened or searched for, nor does it accept that she faces a real chance of serious harm because she is a single woman, aged [age] years, as a result of the political or security situation, or the authorities or criminals or society. The Tribunal also does not consider that she faces a real chance of serious harm such that she will require state protection/ access to the authorities. The Tribunal considers that she will return to her home area of Myagdi, and that she has family in the area with whom she can stay initially until she gets a job, that she is educated and has work experience.
On the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any reason now or in the reasonably foreseeable future in Nepal.
The Tribunal finds that there is no real chance that the applicant faces serious harm now or in the reasonably foreseeable future, if she returns to Nepal.
On the basis of the findings of fact set out above, considering the applicant under the refugee criteria, 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 she was to return to Nepal. Accordingly, the Tribunal is not satisfied that she meets the refugee criterion in s.36(2)(a).
Member of family unit
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
There is no evidence before the Tribunal to suggest 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.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa).
Accordingly, the applicant does not satisfy the criterion in s.36(2) for a protection visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Christine Cody

Member

ANNEXURE A - RELEVANT LAW

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
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).
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.
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.
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.
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.
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.
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.
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
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’).
‘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
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 and the Tribunal has done so.

[2015] AATA 3751

27 November 2015

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