1416877 (Refugee)

[2015] AATA 3607

1416877 (Refugee) [2015] AATA 3607 (3 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416877

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Fraser Syme

DATE:3 November 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 03 November 2015 at 12:20pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The first named applicant is a [age] year old man from Nepal. According to the first named applicant, he was previously an office holder in the National Democratic Student Organisation (“NDSO”) while a university student. He had arguments with Maoists and a particular Maoist student leader, Mr K. In 2006, Maoists abducted, beat and held him captive for a couple of days. He fears if he returns to Nepal, he will be targeted for harm by Maoists or Mr K because of his political opinion in support of the NDSO, Rastriya Prajatantra Party (“RPP”), Monarchism and Hinduism in Nepal.

2. The second named applicant is the spouse of the first named applicant. She made no independent claims for protection and is included in the application as a member of the family unit of the first named applicant.

3. This review application raises the following issues for the Tribunal to determine:

   a.Does the first named applicant have a well-founded fear of persecution in the reasonably foreseeable future if he returns to Nepal.

   b.Are there substantial grounds for believing there is a real risk the first named applicant will suffer significant harm if he is removed to Nepal.

   HISTORY OF THE APPLICATION FOR REVIEW

4. The first named applicant entered Australia on a student visa in February 2008. In July 2010, he was added a secondary visa holder to the student visa of the second named applicant. Her student visa was cancelled in May 2013. In February 2014 the Migration Review Tribunal found it had no jurisdiction to review the cancellation decision, as the second named applicant applied for review out of time. The applicants then applied to the Department of Immigration for a protection visa in March 2014. The first named applicant participated in an interview with the delegate in August 2014, which the second named applicant attended as support person. The Tribunal has listened to a recording of that interview. The applicants provided to the delegate their Nepali passports, identity documents, a letter about the first named applicant’s position with the NDSO and medical records of his father.

5. In the decision under review dated [in] September 2014, the delegate found the applicants had not taken all reasonable steps to avail themselves of the right to enter and reside in India under the Treaty of Peace and Friendship between India and Nepal and therefore were not owed protection obligations under s36(3). The applicants included the delegate’s decision record with the review application.

6. The first named applicant appeared before the Tribunal on 25 September 2015 to give evidence and present arguments. The second named applicant did not participate in the hearing. The hearing was conducted with the assistance of an interpreter in the Nepali and English languages, however, the first named applicant largely addressed the Tribunal in competent English.

7. The applicants were represented in relation to the review by their registered migration agent. The migration agent did not attend the hearing but did provide written submissions prior to the hearing, which the Tribunal has had regard to. The migration agent submitted the court decision in SZRHU [1] meant the first named applicant did not have a legally enforceable right to enter and reside in India, or in the alternative, the close ties between India and Nepal and the presence of Maoists in Nepal mean the applicant still had a well-founded fear of persecution in India. He further submitted that the first named applicant had a well-founded fear of persecution for reason of his pro-Monarchy political opinion. Further, the first named applicant had a real risk of significant harm arising from the present violent bandhs  in Nepal.

   [1] MIMAC v SZRHU (2013) 215 FCR 35.

   RELEVANT LAW

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

9. 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).

10. 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.

11. 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’).

12. 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 (“DFAT”) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT have not published and country assessment for Nepal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

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

15. The Tribunal finds the first named applicant is a national of Nepal. He provided a copy of his Nepal passport. He made no claim to be a national of any other country. For the purpose of the decision, it has been unnecessary for the Tribunal to consider whether the first named applicant has a right to enter and reside in India under the Treaty of Peace and Friendship between India and Nepal, or in any other country for the purpose of s.36(3). The Tribunal accepts the first named applicant’s claims should be assessed against Nepal for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered the first named applicant’s home town, the place he resided for the majority of his life and where he said his family reside, to be his home region in Nepal.

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

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

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

18. During the hearing, the Tribunal put to the first named applicant that his credibility was an issue.

    Well-founded fear of persecution

19. In his written claims before the delegate, the first named applicant stated he feared Maoists if he returned to Nepal. During his interview with the delegate, he raised a new claim regarding a personal dispute with Mr K. During the Tribunal hearing he made a further new claim he would re-enter student politics if he returned to Nepal. After the Tribunal hearing in a supplementary statement, the first named applicant claimed made a further new claim that he was an informer to the police and army against the Maoists.  

20. At the hearing, the Tribunal discussed with the first named applicant his claims related to his involvement with the NDSO and his fear of being harmed by Maoists. He described his position as district president. The Tribunal noted he described his position as district chief in his written statement and the support letter from the NDSO described his position as committee chairman. The Tribunal put to him his inability to precisely describe his title made it doubt he held any position with the NDSO. It agreed they all were indicators of having the most senior position, but it considered it reasonable that if he held the position for 3 years as claimed in the letter from the NDSO, the first named applicant would consistently be able to accurately state what the title of that position was.

21. The first named applicant clarified for the Tribunal that he made an error during the interview with the delegate to state the NDSO was an independent organisation not affiliated to any political party. NDSO is affiliated to the RPP and the main policies of the RPP are pro-Monarchism and pro-Hinduism. The Tribunal is willing to accept there was a miscommunication during the delegate hearing on that point.

22. He insisted if he returned to Nepal, he would continue to speak out for pro-Monarchism and pro-Hinduism. He told the Tribunal he would do that by reclaiming the NDSO committee chairman position. The Tribunal noted he was no longer a student, how could he return to student politics and just replace the current chairman. It was at this point the first named applicant claimed he would resume his master degree studies on return to Nepal. He claimed too the chairmanship would be given to him as a reflection of his past hard work for the NDSO. The Tribunal put to him it had difficulty accepting the plausibility of that. Earlier in the hearing, he told the Tribunal he failed two semesters of his master degree, which he later changed to be he failed two years of his master degree. The Tribunal raised doubt he would be welcomed as a master degree student with that academic record. He claimed he could be re-admitted on the basis of a couple of phone calls. The Tribunal further put to him he would at least need to wait until the start of a new semester. The first named applicant then conceded it may be he would have to wait a few months to resume his studies. The Tribunal is not impressed by the evidence of the first named applicant in relation to his returning to student politics if he returned to Nepal. The implausibility of his claims in conjunction with the far-fetched explanations he provided when challenged about those claims leads the Tribunal to conclude the first named applicant fabricated these claims during the hearing in response to the Tribunal’s questions.

23. The Tribunal discussed with the first named applicant that available country information [2] did suggest it was plausible the first named applicant may have been abducted by Maoists in 2006 if he was involved in student politics as there was a high degree of political violence at that time. The Tribunal however had considerable doubts regarding the genuineness of his claims. It further discussed with him that even if the Tribunal gave the first named applicant the benefit of the doubt, the country information [3] available to the Tribunal indicated in 2006 the Maoists had signed a peace treaty and in 2008 the King abdicated and the Maoists won the election, making them now part of the ruling government. He agreed with that. The Tribunal further referred to country information [4] that the Maoists were no longer targeting political opponents for harm and the last incidence of political violence attributed to the Maoists was in 2013. The Tribunal noted too the country information in the pre-hearing submission from the applicants’ migration agent was not relevant to the circumstances of the first named applicant. It referred to political protests regarding revision of internal boundaries in Nepal and clashes with police the reason for which was not set out clearly. The first named applicant claimed there had been a recent attack on the RPP leader. The Tribunal invited the first named applicant to provide supporting reports about that attack after the hearing. Despite being allowed that additional time, the first named applicant did not provide any reports but did repeat the claim of an attack on the RPP leader in his supplementary statement. The Tribunal has located news a report [5] that the RPP leader and his brother each suffered a head wound in clashes with police in July this year. The leader alleged the police attacked him under the influence of the ruling parties – ie the Maoists. The first named applicant’s supplementary statement has reference too to attacks on RPP supporters by the Young Communist League (“YCL”) in 2007-2009. There are no sources attributed for that information. This however is consistent with the country information discussed during the hearing that there have been no recent incidences of serious political violence in Nepal.

    [2] MRT Country Advice Nepal NPL37048 (23 July 2010)

    [3] DIBP Q&A Report Nepal: CII50118125831843 (10 March 2015)

    [4] South Asian Terrorism Portal, Nepal Assessment 2015 The Kathmandu Post, 21 July 2015, “After Ganesh Thapa, Kamal Thapa hurt in Hetauda”, >

    The Tribunal discussed too with the first named applicant his claims regarding a personal dispute with Mr K. The Tribunal noted it is most probable that Mr K would no longer be a student, given the passage of time since 2006. The first named applicant told the Tribunal he did not know what position if any Mr K held with the Maoists, did not know whether Mr K was still involved in student politics or politics generally and did not know the whereabouts of Mr K. He claimed that Mr K would become aware of the first named applicant’s return to Nepal because the first named applicant would be re-involved in pro-Hinduism, pro-Monarchism political activities.

24. During the hearing, the Tribunal raised with the first named applicant too his delay in applying for protection in Australia. He agreed that he arrived in Australia in 2008 and did not apply for protection until 2014, after the MRT found it had no jurisdiction to review the cancelation of the second named applicant’s student visa. He stated he did not know how to apply for protection until 2014. He explained he did not attempt to find out earlier, because initially he had a student visa and later, he was a secondary visa holder to his the student visa of the second named applicant. The Tribunal put to him the delay in applying for protection undermined the credibility of his claims. That if was genuinely fearful of returning to Nepal, he would have made efforts to find out earlier how to apply for protection.

25. The first named applicant referred the issue of the recent earthquake in Nepal during the hearing. The Tribunal commented harm from natural disasters was due to any Convention reason and is excluded from significant harm. He raised too issues of general strikes (bandhs) in Nepal and the blockading of boarders causing economic distress as well as the Gurang ethnic group seeking control of the area in which his hometown in located. However, (contrary to the pre-hearing submissions of the migration agent), the applicant stated the bandhs and issues related to the Gurang ethnic group were not related to him personally and were not reasons he feared to return to Nepal. The Tribunal commented that because he had no subjective fear and these were risks of a general nature not faced by him personally, they would not be examples of persecution or significant harm.

26. As noted above, in his supplementary statement after the hearing, the first named applicant made new claims that he was an informer to the police and army against the Maoists while in student politics and was threatened by the Young Communist League (“YCL”). His supplementary statement says that body was created at an unknown time during the peace agreement between the Maoists and the Nepali government in 2006. He provided little other detail. The Tribunal considers it clearly raised with the first named applicant at the hearing the issue of his credibility. The first named applicant did not make any reference to his informer activities or identify any fear of the YCL until after the hearing, although the Tribunal discussed with him at length his student politics activities and the reasons he feared to return to Nepal. The Tribunal considers the applicant’s delay in raising these new claims to be an informer and fear the YCL greatly undermines the credibility of these claims and his claims generally. The Tribunal considers it reasonable that if these claims were genuine, the first named applicant should have raised these claims earlier and consistently throughout his application for protection.

1. Although the Tribunal did discuss with the first named applicant at the hearing the possibility of it giving him the benefit of the doubt regarding his claims of past political activity, it put to him clearly that it had doubts regarding the credibility of his claims. Following the receipt of the post hearing supplementary statement raising new claims, the Tribunal is no longer minded to give any benefit of the doubt to the first named applicant. It considers the cumulative effect of: his being unable to accurately name his position with the NDSO; his implausible evidence about resuming student politics on return to Nepal; his delay in applying for protection and his providing new claims after the hearing sufficiently undermine his credibility that the Tribunal is satisfied the first named applicant is not a credible witness. The Tribunal rejects the first named applicant held any position with the NDSO. It places no weight on the letter he provided from that organisation. It rejects he had any personal disagreement with Mr K. It rejects he was abducted, beaten or detained by Maoists in 2006. It rejects he was an informer to the police or army and rejects he was threatened by the YCL. The Tribunal considers the first named applicant has fabricated these claims in order to create a profile upon which to apply for protection in Australia.

2. The Tribunal is willing to accept the first named applicant may have had in the past and may continue to hold political sympathies in support of pro-Monarchism and pro-Hinduism. It rejects however his claims as non-credible that he will be involved in any active political movements or parties to forward those political ideals if he returns to Nepal. Albeit the leader of the RPP did suffer an injury in July 2015, the Tribunal considers the political profile of the first named applicant and the RPP leader to be vastly different. All of the country information before the Tribunal, including that provided by the applicants supports the conclusion that the Maoists are not currently targeting political opponents of any level or profile for serious harm.

3. The Tribunal has considered the claims of the first named applicant individually and cumulatively. The Tribunal finds the applicant has no subjective fear and will not be systematically or discriminatorily targeted for harm from natural disasters, general strikes (bandhs), and the Gurang ethnic group. The Tribunal further finds there is only a remote or speculative chance and therefore not a real chance he will face serious harm from n, Maoists, Mr K, the YCL or any other persecutor for reasons of the first named applicant’s pro-Monarchist or pro-Hinduism political opinion or any other Convention reason now or in the reasonably foreseeable future if the first named applicant returns to Nepal.

4. He therefore does not meet the requirements of s.36(2)(a).

   Real risk of significant harm

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

6. Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. For that reason, the Tribunal finds the applicant does not face a real risk of significant harm arising from natural disasters, general strikes (bandhs), or the Gurang ethnic group.

7. On the evidence before it, the Tribunal considered there to be only a remote or speculative and therefore not a real risk that the first named applicant will suffer any significant harm from Maoists, Mr K or YCL if he is removed to Nepal. Given the real chance test for well-founded fear of persecution imposes the same standard as the real risk test of significant harm, for the same reasons set out above, the Tribunal is not satisfied the first named applicant faces a real risk of significant harm.

8. The Tribunal therefore considers there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Nepal there is a real risk the first named applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.

9. Therefore the first named applicant does not meet the requirements of s.36(2)(aa).

   Second named applicant

10. From the identity documents on the departmental file, the Tribunal accepts the second named applicant is the spouse of the first named applicant and therefore is a member of his family unit. As the Tribunal has found the first named applicant is not owed protection obligations in s.s.36(2)(a) or (aa), it follows that the second named applicant is unable to meet the requirements in s.s.36(2)(b) or (c).

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

    DECISION

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

    Fraser Syme
    Member