1417101 (Refugee)

[2016] AATA 3385

1417101 (Refugee) [2016] AATA 3385 (25 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417101

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Rachel Homan

DATE:25 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 25 February 2016 at 12:17pm the

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who the Tribunal accepts is a citizen of Nepal, applied for the visa [in] August 2013 and the delegate refused to grant the visa [in] October 2014.

3. The applicant appeared before the Tribunal on 10 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4. The issues in this review are whether the applicant has a well-founded fear of persecution in Nepal for one or more of the five reasons set out in the Refugees Convention; and whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk the applicant will suffer significant harm.

5. For the reasons that follow, the Tribunal has determined that the decision under review should be affirmed.

   RELEVANT LAW

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

   Refugee criterion

7. 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).

8. 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.

9. 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.

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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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

17. 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’).

18. ‘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.

19. 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

20. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. According to information provided in his visa application forms, the applicant is a [age]-year-old male born in [his home village], Nepal. The applicant claimed that the only language he could speak was Nepalese and stated that he belonged to the [detail] Christian religion. The applicant stated that he was married in [his home village] [in] December 2010. The applicant provided details for his wife, [age]-year-old son, mother, [and siblings] still residing in Nepal. The applicant stated that his father and one [sibling] were deceased.

22. The applicant claimed to have completed [less than 1 year] of basic education, learning the alphabet in a village room. The applicant stated that he had been employed in Nepal collecting stones from the river and selling them for construction on a casual basis.

23. The applicant arrived in Australia as an Unauthorised Maritime Arrival [in] January 2013. The applicant stated that he travelled from Nepal to [Country 1] by train in December 2012 then travelled to Australia by boat from [Country 1].

24. The applicant’s claims for protection were set out in a statutory declaration made [in] August 2013 with the assistance of an interpreter in the English and Nepali languages. The applicant claimed that his citizenship was Nepalese, however, his mother had told him that he was unable to apply for citizenship papers so the applicant was not sure if he was stateless.

25. The applicant claimed to fear harm if he returned to Nepal as he had suffered harm from the Moubadi (Maoist) group. The applicant stated that the Moubadi group lived in the jungle and came to his village frequently to recruit young people for their activities. They robbed people, hurt them, beat them and even killed them. The applicant claimed that he did not want to be involved in this group but they were trying to get him to join. They wanted their numbers to increase so that they had more power in the area.

26. The applicant claimed that the Moubadi frequently came to his home. On one instance, the Moubadi came to his house and told him that he had to join or they would not leave him alive. The applicant didn’t join and they came on a second occasion and started beating him. As they hit him, they said that because he had not joined them he would be punished severely. The applicant was taken into the jungle and repeatedly beaten. They hit the applicant in the face with a stick and broke his tooth and cut his lip. They also injured his hand and leg and other parts of his body. The applicant fell unconscious and they must have dumped his body and left him for dead. The applicant’s mother found him and took him home. When he woke up his whole body was in pain and his teeth hurt. The applicant’s mother said that if the Moubadi knew he had come back to life they would come to take him again. The applicant’s mother’s friend replaced the applicant’s broken tooth and said he should leave to save his life before the Moubadi returned.

27. The applicant stated that he feared returning to Nepal as he would be taken and recruited by the Moubadi, equipped to fight with them and forced to engage in their bad activities. They would harm the applicant and mistreat him if he refused to fight for them. The applicant claimed that he did not want to fight. The applicant claimed that he did not believe the authorities would protect him as there were no police or authorities in the applicant’s home area. The applicant also expressed the belief that the Moubadi were friends with the police and colluded with them.

28. The applicant additionally claimed that he believed he would suffer significant harm as a young male from a small village in Nepal. The applicant stated that he lacked education and it was very difficult to find employment. The applicant only had casual work, collecting rocks to load onto trucks for construction sites. This was difficult slave-like labour. As the oldest male in his family, the applicant claimed to be responsible for his wife and child, mother and siblings.

29. The applicant stated that he could not live in any part of Nepal because of the dangers he faced. The Moubadi have a big presence in rural areas and the applicant believed they would target him in the cities like Kathmandu as well.

30. Submitted with the application were extracts from various items of country information prepared by the applicant’s representatives.

31. Contained on the departmental file is an anonymous allegation received by the Department in March 2014 stating that the applicant’s family owned large amounts of assets in Nepal, including [properties]. It was alleged that the applicant had made fraudulent asylum claims so that his family could fast track their immigration to Australia and avoid paying large fees to migrate as either students or through business. It was further alleged that the applicant had lied about his real age in order to receive the full benefits allowed for under-aged UMAs.

    Departmental interview

32. The applicant attended an interview with a departmental officer [in] September 2014 and the Tribunal has listened to a recording of that interview.

33. At the commencement of the interview, the applicant spelt his name and gave his date of birth in the English language. The applicant responded to several of the interviewer’s questions in the English language before waiting for them to be interpreted into Nepali.

34. The applicant denied having any identification documents including a passport and stated that, apart from [Country 1], he had not ever travelled outside of Nepal. The applicant stated that his parents were Nepalese citizens.

35. The applicant stated that his wife, child, [and other family members] remained in Nepal. The applicant denied having any relatives in Australia and stated that none of his siblings had travelled to Australia. The applicant stated that his sister was married but he did not know who she was married to and did not know her married surname. The applicant stated that he earned money in Nepal loading stones onto trucks and that his wife was currently unemployed.

36. The applicant stated that the Maoists wanted him to join them and fight for them. The first time he refused to do so. The Maoists returned a second time, took him to the jungle and beat him to death. They thought the applicant was dead and left him there.

37. The applicant stated that he could not recall the date or year in which he was first approached by the Maoists but guessed that it may have been three or four years ago. Within 10 days, they returned and started beating the applicant and took him to the jungle. The applicant’s mother found him lying unconscious in the jungle. When he regained consciousness, his body was in pain and covered in marks. His tooth was broken.

38. The applicant claimed that he was married about a year and a half after this incident. The applicant claimed that he was [age] years old when he was beaten. The applicant also stated that he was [age] years old when he was married. The applicant stated that his son was born in [year] and he was [age] years old at the time.

39. The applicant gave evidence that he travelled to [Country 1] by train and then took a boat from [Country 1] and to Australia. The interviewer put to the applicant that he had information that other passengers on board the applicant’s boat had claimed to have boarded the boat in [Country 2]. The applicant denied having flown to [Country 3] or another country before boarding the boat in [Country 2] and denied ever having been granted a passport.

40. The interviewer put to the applicant that the Department had received information that the applicant’s age was older than he had declared and that his refugee claims were untrue. The applicant insisted that he was [age] years old. The interviewer also put to the applicant that he appeared able to communicate and understand English and noted that the signature appearing on his documentation was complex suggesting that he had been educated. The applicant responded that he had learnt English since arriving in Australia and whilst in Nepal had learnt the English alphabet.  He had no formal education but had learnt how to make a signature. The applicant stated that he had been going to school since arriving in Australia.

41. Following the interview, the applicant’s representative provided additional written submissions. In those submissions it was claimed that it was plausible that Maoist groups prey on young and vulnerable members of the community in order to enhance their support base. Given the applicant’s age and the death of his father it was plausible that the applicant would be considered a target for recruitment. It was submitted that, as the applicant does not hold Nepalese identification documentation, he would not be able to obtain a permit to remain in [Country 1]. It was further noted that individuals from Nepal are not afforded the same rights as [Country 1] citizens and, as such, [Country 1] should not be considered a safe third country for the applicant. The representative reiterated that the applicant’s age was as provided to the Department. The applicant claimed that due to his young age he was unable to obtain identity documents in Nepal. The applicant claimed that he was unwell whilst travelling to Australia and so could not be sure if he changed boats en route to Australia. The applicant insisted that he did travel by boat from [Country 1] to Australia and there was no evidence that the applicant travelled by plane.

    Review application

42. At the time he applied for review, the applicant submitted to the Tribunal a copy of the delegate’s decision record.

43. In December 2014, the Tribunal received notice of an allegation made about the applicant to the Department by telephone in November 2014. The allegation indicated that the applicant was not a refugee and came from a very wealthy and politically connected family which owned businesses. The source alleged that the applicant and his wife were under age when she became pregnant and the applicant had to leave because this would bring shame on his family in light of their connections.

44. In April 2015, the Tribunal received an additional statutory declaration made by the applicant on 21 April 2015. The statutory declaration is in the English language and does not on its face indicate that it had been prepared with the assistance of an interpreter.

45. According to the April 2015 statutory declaration, after being beaten by the Moubadi and having been found by his mother, the applicant was kept in a secret area of the house. The applicant remained in the secret location for the rest of the time he was in Nepal like the living dead. The applicant was advised by his mother to stay indoors because the Moubadi thought he had died. Physically, he was alive but otherwise he was like a dead person as he was cut off. The applicant’s mother told him about other incidents involving the Maoists in the area and the names of people who were taken by the Maoists. The applicant stated that there was no point telling the police as they were connected to the Maoists and there were no police in his village. The applicant estimated that he remained in hiding for up to 2 years but was not sure as he remained indoors.

1. The applicant stated that he had [siblings] who were still very young who had not faced the same issues as him. The applicant stated that in the future they will also suffer. The applicant claimed that he got married whilst in hiding and his wife was living with his mother. There was no marriage ceremony but the applicant had grown up with his wife and she knew that the applicant was in hiding and would come and visit him. A few of the applicant’s closest relatives and friends knew that the applicant was in hiding but most of the community thought he had been killed by the Maoists. The applicant followed his mother’s instructions by leaving Nepal. The applicant did not tell his wife. On the day he left, she was at her parents’ place. Most of the time they lived together but because the applicant was in hiding she would go to her parents’ place occasionally. The applicant’s son remains with his wife.

2. The applicant left his home by bicycle with a man he had been instructed to follow by his mother. The man took the applicant through the jungle until they reached a train. Together they boarded the train and remained on it for 2 to 3 days. The applicant was not stopped for identity checks or travel documents. After getting off the train, the applicant was placed on a boat. When the applicant boarded the boat there were very few people. The applicant fell asleep as he was sick from the smoke the boat was making. When he awoke there were far more people on the boat.

3. The applicant claimed that he would not be able to live in the south of [Country 1] as there was no safety for Nepalese people in [Country 1]. [Country 1] people do not like the Nepalese and kill them. The applicant claimed that Nepalese people faced harsh conditions were unable to live in [Country 1]. They are discriminated against and do not get jobs. If the applicant were to go to [Country 1] it would mean death. The applicant stated that the Maoists were a big problem affecting the entire nation of Nepal. The applicant is considered dead in his community. If he were to return and be found alive he would be killed. The applicant claimed it would not be difficult for the Maoists to locate the applicant in [Country 1].

4. The applicant stated that he was [under 18] years old when he arrived in Australia and got married when he was [age] years old. The applicant stated that his wife is a couple of months younger than him that he was not sure of her exact date of birth. The applicant claimed that he had never held a passport or any travel documents.

5. The applicant claimed that he had learnt English since arriving in Australia. Prior to his arrival, he had no understanding of English and only spoke Nepalese. The applicant stated that in the camps they provide the English lessons and he learnt English during this time. Before coming to Australia, the applicant lived in a rural community and went to a non-formal education centre where he learnt the 26 letters of the English alphabet as well as Nepalese language and writing. The applicant stated that after learning his alphabet he was unable to use a fingerprint for a signature and so practised his signature. The applicant denied having attended high school or having any formal education. The applicant stated that his education lasted around 18 months and classes were held only once or twice a week and not on a regular basis.

   Tribunal hearing

6. The applicant confirmed at the commencement of the hearing that he was a citizen of Nepal and no other country. The applicant stated that he was born in Bardiya in the western part of Nepal in [his home] village. The applicant told the Tribunal that the nearest major town was [nearby town]. The applicant claimed that he was [age] years old and was born in [year]. The applicant denied having been issued with a birth certificate and said that his son had also not been issued with a birth certificate. The applicant told the Tribunal that his mother, wife, child, [and other family members] continue to reside in Nepal. The applicant stated that [one particular sibling] suffered from a mental illness and [other siblings] were quite small. The applicant’s sister was married and living in a small town but the applicant did not know the town’s name. The applicant stated that the town was a bit far but not too far from his own town.

7. The Tribunal asked the applicant about his marriage. The applicant told the Tribunal that the he never participated in marriage ceremony but was in a relationship and had a child with his ‘wife’.

8. The Tribunal asked the applicant about his education in Nepal. The applicant told the Tribunal that he never went to school but received a community education. The applicant claimed that his mother had taught him the 26 letters of the alphabet that he had not otherwise ever attended school. The Tribunal asked the applicant where his mother learnt the English alphabet. The applicant stated that he did not know and that he learnt from his mother and other members of the community. The Tribunal asked the applicant whether he learned to write in Nepal. The applicant stated that he did not learn to write other than what his mother taught him. Apart from learning the alphabet, the applicant denied having learnt English whilst in Nepal. The Tribunal noted that the applicant’s English appeared to be at a very good level and he was able to understand many of the Tribunal’s questions and answer many of them in English. The applicant told the Tribunal that he learnt English whilst in immigration detention and later attended high school in Australia. The Tribunal noted that the applicant had signed many documents since his arrival in Australia with a signature. The applicant stated that he practised his signature at home in Nepal because he knew his alphabet.

9. The applicant told the Tribunal that that he had occasionally done work in Nepal collecting stones and loading them onto trucks. The applicant told the Tribunal that his family had no other source of income. The Tribunal asked the applicant whether his mother worked. The applicant stated that she sometimes did domestic work in other people’s homes and was given some money and food for that work.

10. The Tribunal asked the applicant about his journey to Australia. The applicant stated that he just followed his mother’s instructions. She organised everything. The applicant’s mother organised for a man to come and told the applicant to follow him. The applicant just followed the man. The applicant stated that he did not know where he went or the names of any towns or countries he travelled through. The man took the applicant through the jungle to a railway station then after two or three days on the train he was placed on a boat. The applicant became sick because of the boat’s smoke. The applicant indicated that it was his understanding that he departed for Australia by boat from [Country 1].

11. The Tribunal noted that it had been put to the applicant previously that other people who arrived in Australia on the same boat had claimed that they boarded the boat in [Country 2]. The applicant stated that he did not know anything because he had been sick and only partially conscious. At one point, he woke up and felt better and realised that more people were on the boat. The applicant thought perhaps they had stopped somewhere. After arriving in Australia someone told the applicant that he had boarded the boat while the applicant was sleeping in [Country 2]. The Tribunal asked the applicant whether he was claiming to have been unconscious for the entire journey between [Country 1] and [Country 2]. The applicant stated that he would wake up sometimes but all he saw was water. It was hard for him to communicate with the other people on the boat because of language difficulties and he could not recall how many days or nights he was on the boat.

12. The Tribunal asked the applicant about his reasons for departing Nepal. The applicant stated that his life was at risk and it was difficult to live there. The applicant’s mother had told him that he would die if he remained there and so she sent him out of the country. The Tribunal asked the applicant what kind of difficulties he experienced in Nepal. The applicant stated that he was afraid of Maoists who had taken and beaten him. Later his mother found him and told him that the Maoists thought he was dead and if they knew he was alive they would come back and kill him.

13. The Tribunal asked the applicant about his first contact with the Maoists. The applicant stated that he was unsure of the timing but a large group of people came to his house and asked him to join them. The applicant refused because he didn’t like their activities. The applicant could not recall how old he was with this event occurred. The group returned a second time and started beating him then took him to the jungle. The applicant was injured and he fell unconscious then they left him in the jungle. The Tribunal asked the applicant how he knew that these people were Maoists. The applicant stated that everyone in the village identified them as Maoists. The Tribunal asked in what way they were identifiable. The applicant stated that they would come and asked people to join their group and be involved in their bad activities. The Tribunal asked the applicant whether they had told him they were Maoists when they came to his house. The applicant stated that when they came to people’s houses they would tell people to join their Maoist group. The Tribunal asked the applicant what they said to him when they came to his house. The applicant responded that they told him to join their Maoist group.

14. The Tribunal asked the applicant if he could provide more detail about his encounters with the Maoists. The applicant stated that when the Maoists came to the village all the villagers knew about them. They would go from house-to-house asking for money and things like that. When they came to the applicant’s house he was with his mother and said they needed people like the applicant to join their group. The applicant refused to join their group. The applicant said that there were around 12 to 15 people at his house. The applicant stated that he and his mother were very worried. The applicant was standing behind his mother. The men pulled the applicant’s hand and stated that he had to join them otherwise would be killed. When the applicant refused, the men were so angry and screamed at him. The men returned after 10 days. The men had scarves on their heads. The applicant was at his house with his mum. The men asked if the applicant was coming with then. When the applicant said no they started beating him. The applicant was crying and his mother screaming and crying. No one could help them. They then took the applicant to the jungle where he was beaten until he became unconscious.

15. The Tribunal asked the applicant how he was taken to jungle. The applicant stated that they dragged the applicant to the jungle by foot for about half an hour. The Tribunal asked the applicant what his mother did when this occurred. The applicant stated that she couldn’t do anything. She stayed at home crying and screaming. The Tribunal asked whether there were any men in the village who looked after security or whether there were any police. The applicant stated that there was no security or police in the community. The Tribunal asked the applicant how many people lived in his village. The applicant said he did not know. The Tribunal asked him to estimate approximately. The applicant stated that it could be 100 to 300 people but it could be less or more. The Tribunal asked whether anyone in the village followed the men when they were taking the applicant or whether his mother asked anyone to help. The applicant stated that everyone was scared that they would be harmed.

16. The Tribunal asked the applicant how his mother found him. The applicant said his mother had told him that some village people saw the applicant lying in the jungle and told his mother. They were unsure whether the applicant was dead or alive. The Tribunal asked how his mother physically got the applicant home. The applicant said he was not sure but his mother had just said that she brought him from the jungle to home. Once he returned home, the applicant was unconscious for a few days. When he regained consciousness, the applicant’s mother told him that the Maoists thought he was dead and he should not leave the home.

17. The Tribunal asked the applicant to describe his family home. The applicant said he did not know how to describe his home. The Tribunal asked the applicant whether he could say how many rooms or what his home was made from. The applicant again said he did not know how to describe it. The Tribunal noted that the applicant claimed to have lived in this home for [over 10] years and he should be able to provide some description. The applicant stated that his home was long in shape and consisted of two rooms and a porch but he didn’t know what else to say.

18. The Tribunal asked the applicant where in his house he had remained during the period he was in hiding. The applicant stated that there were two rooms in the house and he remained inside the second room. The Tribunal asked whether the room had windows. The applicant told the Tribunal that it had tiny windows. The Tribunal asked whether there was a bathroom or toilet in the house. The applicant told the Tribunal that there was a bathroom and toilet inside the house but not really inside the room. The Tribunal asked the applicant to explain what he meant. The applicant said the toilet was inside the house but not inside the room. The Tribunal asked the applicant whether he had to go outside to the toilet. The applicant said no it was inside the house.

19. The Tribunal asked the applicant whether his sister was already married at that time. The applicant stated that his sister was already married and was no longer living in the house. The Tribunal asked the applicant what the sleeping arrangements were in house for his mother and [siblings]. The applicant responded that they all lived inside the house. The Tribunal asked whether they slept in one part of the house. The applicant said yes. The Tribunal asked what part of the house. The applicant said it was in a corner. The Tribunal asked the applicant how long he stayed in the house before he left Nepal. The applicant stated that he didn’t know exactly but it was maybe one and a half years.

20. The Tribunal noted that during this time the applicant’s partner or wife fell pregnant and had a baby. The applicant agreed and stated that his child was about five months old and not yet sitting up when the applicant left Nepal. The Tribunal asked how far from his own home his wife’s family home was. The applicant stated that it was maybe half an hour away. The Tribunal asked whether the applicant’s wife was mainly staying at her own home or the applicant’s home. The applicant stated that she sometimes lived at his own house and sometimes at her parents’ house. The Tribunal noted that according to his evidence, his wife must have been [age range] at the time and they were not formally married. The Tribunal asked what her parents thought of this arrangement. The applicant stated that his mother was not happy with the situation and his wife’s parents did not know what was happening until she fell pregnant.

21. The Tribunal asked who the other people in the village thought was the father of his child. The applicant stated that the other people in the village thought he was dead and didn’t know that he was the father of the child.

22. The Tribunal asked the applicant what he thought might happen to him if he returned to Nepal. The applicant stated that everyone thought he was dead and if he returned they might think it was his soul that had come back. The Tribunal asked whether, apart from shocking the people in his community once they realised he was alive, the applicant feared suffering any harm. The applicant told the Tribunal that the Maoists would kill him.

23. The Tribunal asked the applicant whether he could safely go to Kathmandu or some other part of Nepal the applicant responded that Nepal is a small country and everywhere there are Maoists killing people. The Maoists would recognise the applicant’s face and if they found him they would kill him. The Tribunal noted that the Maoists thought the applicant was dead so they wouldn’t be looking for him if he went to Kathmandu. The applicant stated that he knew if he went back he would die and every minute he would be thinking about that.

24. The Tribunal put to the applicant that it had to decide whether there was a real chance or risk of the Maoists finding him if he went to Kathmandu, given that he was [under 18] when he encountered them in an incident occurring several years ago in a remote part of the country; the Maoists think he is dead and so would not be actively looking for him; and the applicant had never been issued with any identification documents and so they would not have a clear understanding of the applicant’s identity. The Tribunal also noted that Kathmandu is a city of around 1 million people. The applicant responded that news would spread if he returned home and they would recognise his identity by his face. The Maoists have a very strong network. The Tribunal noted that it was having trouble understanding how they would recognise his face given that the applicant had only met the Maoists on two occasions several years ago at a time when he was only [under 18] years old and they thought he was dead. The applicant stated that people in his village would start talking and saying that he is alive and back. News would spread and reach the Maoists.

25. The Tribunal asked the applicant whether any other young men in his village had experienced similar problems. The applicant stated that he had heard from his mother that the same thing could happen to other people.

26. The Tribunal noted that the applicant’s evidence appeared to be that his mother engaged the services of an agent to assist him to escape Nepal. The Tribunal asked the applicant how his mother would have been able to pay the agent. The applicant stated that he did not know and just followed his mother’s instructions.

27. Following a brief adjournment, the applicant told the Tribunal that if he went back to Nepal his family and neighbours would talk about it. Nepal is a small country and only 1 or 2 million people is not a large population. Once the people in the applicant’s village know that he is alive and has returned to Nepal it would come to the Maoists’ attention. They might get angry and would definitely try to kill him. The applicant would be thinking about this every day.

28. With regard to his journey to Australia, the applicant stated that it was very hard to remember. The applicant was very young at the time and it was hard for him to remember the countries through which he had travelled. The Tribunal asked the applicant whether he had any recollection of the boat on which he was travelling stopping at any ports or land on the journey to Australia. The applicant stated that he thought it must have stopped somewhere. At the time he did not know but now he realises it must have stopped at [Country 2] to enable the other people to board the boat. The Tribunal noted that in the context of having been at sea for several days, the boat stopping and other people boarding the boat would be something that would have taken some time and the Tribunal was surprised that the applicant had no recollection of it. The applicant told Tribunal that someone had told him afterwards that he was sleeping at the time.

29. The Tribunal put to the applicant information which it considered would be a part of the reason for affirming the decision to refuse to grant him a protection visa. The Tribunal explained that the applicant could seek additional time in which to comment on or respond to the information. The Tribunal put to the applicant particulars of the two allegations made to the Department referred to above and explained that they were relevant to the review because they cast some doubt upon the truthfulness of his claims with regard to his circumstances in Nepal. The Tribunal explained that if it relied on information, it may as a consequence not be satisfied that the applicant had presented truthful evidence and may not be satisfied that the applicant faced a real chance or risk of suffering serious or significant harm in Nepal. The applicant indicated that he understood the information and wished to respond immediately, although later the applicant asked for the information to be put to him in writing.

1. The applicant responded to the information saying that the information was all false. If the applicant was well off, he would have no reason to risk his life by coming to Australia by boat. The applicant stated that he did not know who had made the allegations. The applicant told Tribunal that his age was what his mother had told him and he did not agree that he had lied about his age. Birth and death records were not kept. The information given to him by his mother could not be false because she is the one who gave birth to him.

2. The Tribunal also discussed with the applicant some other general concerns about his evidence. The Tribunal noted that some of the applicant’s evidence had appeared vague and lacking in detail, particularly the applicant’s evidence about his home and home area, his family’s income, the manner in which he departed Nepal, as well as the circumstances surrounding his abduction by the Maoists. The Tribunal noted that given the applicant had no documentation whatsoever, his oral evidence about his circumstances was quite important and the Tribunal expected the applicant would be able to talk more fluently about his life in Nepal than the applicant had been able to demonstrate. The Tribunal explained that it understood that there were factors that might affect his ability to talk about his experiences including his age and the injuries he claimed to have received and invited the applicant to comment further on this observation. The applicant stated that he was not that well educated he felt he had responded to the Tribunal’s questions and tried his best to explain about what really happened to him.

3. The Tribunal noted that other parts of the applicant’s story appeared implausible. The Tribunal put to the applicant that, despite his claimed lack of education, he had demonstrated very good language skills and a good understanding of the English language. At the time he was interviewed by the Department, he had been in Australia for just over 18 months yet had been able to understand many of the questions put to him it in English, respond to the questions in English and at the commencement of the hearing spelt out his name in English. The Tribunal noted that this was difficult to reconcile with the applicant’s claim to have grown up in a remote area of Nepal and to have received no formal education or English language training prior to coming to Australia.

4. The applicant responded that 18 months was a sufficient time for him to learn English. At the detention centre he had attended English language classes and in Darwin he attended language school and high school. It was not difficult to learn English in that time. The applicant had actively tried to improve his English.

5. The Tribunal also put to the applicant that it was having difficulty accepting his claims relating to his experience after being beaten by the Maoists. The Tribunal noted that it was having particular difficulty accepting that the applicant was able to remain in his small house in his small village for more than a year yet convince people that he was dead despite his girlfriend was visiting the house and staying there and falling pregnant during this period. The applicant told the Tribunal that it was quite common for people in his village to go to other people’s houses. He hid for over one year. Although he was alive he felt dead on the inside and afraid of being killed if he left home.

6. The Tribunal agreed to provide the applicant with additional time to make written submissions and respond to the adverse information put to him during the hearing.

   Post hearing correspondence

7. On 14 December 2015, the Tribunal wrote to the applicant pursuant to s.424A of the Act inviting him to comment or respond to information which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The information particularised in the Tribunal’s letter included the allegations received by the Department in March and November 2014, information pertaining to the country in which other passengers boarded a boat on which the applicant arrived in Australia and evidence given by the applicant at his departmental interview. The Tribunal also issued the applicant with a direction pursuant to section 440 of the Act in relation to the two allegations. In 17 December 2015, the Tribunal received request to extend the time provided to respond to the Tribunal’s letter. The Tribunal agreed to the applicant’s request and advised him that a response would now be required by 28 January 2016. On 21 January 2016, the Tribunal received a further request for time from a solicitor assisting the applicant on the basis that a freedom of information request had been lodged and was still outstanding. The Tribunal agreed to wait until after 15 February 2016 to make its decision.

8. On 15 February 2016, the Tribunal received a statutory declaration declared by the applicant on the same date. On 17 February 2016, the Tribunal received a psychiatric report prepared by [Dr A], dated [in] January 2016; a letter from [Dr A], dated [in] February 2016; and [Dr A’s] curriculum vitae.

9. In his February 2016 statutory declaration, the applicant noted that he had difficulty responding to the allegations as he did not know the source or exact details of the information received by the Department. The applicant requested that as the allegations were anonymous no weight be given to them. The applicant denied that the allegations were true and confirmed that he had provided truthful information to the Department in relation to his personal details and family circumstances in Nepal. The applicant noted that the Department had assessed the applicant’s age in February 2013 as being under 18 years old, which was consistent with his claim.

10. With regard to his marriage, the applicant stated that his mother was initially upset by the relationship but later came to accept it. When the applicant’s wife’s family discovered she was pregnant, they did not know that she was in a relationship with the applicant. Initially, they were not happy because her family were Hindu and the applicant’s family were Christian. Upon discovering the pregnancy, the families developed a good relationship and everyone was happy about the birth of the applicant’s son. There was no problem between the families at the time the applicant left Nepal. The applicant claimed that his wife and son sometimes stayed with her parents and sometimes with his mother.

11. With regard to his travel to Australia, the applicant repeated that he was unable to clearly remember his journey to Australia. The applicant estimated that he spent 2 to 3 days on a train but did not know where he was because he didn’t understand the language spoken on the train or at the port. The applicant said he was told to get on to the boat and did so. Once on board the boat, the applicant became sick from the engine smoke and endless rocking motion. The applicant had trouble eating and drinking and just slept to pass time and because he felt sick although he did not know whether he was asleep or unconscious. The applicant stated that he was on the boat for a number of days and nights but could not recall exactly how long. The applicant believed there were more people on the boat by the time he arrived in Australia than when he first set off but could not clearly recall. The applicant stated that this was his first travel outside of Nepal and he was dependent on the people who were assisting him. The applicant stated that he had not heard of Australia until arriving here and had not heard of anywhere outside of Nepal.

12. With regard to his English language capability, the applicant confirmed that he had received no formal education or English language training prior to his arrival in Australia and was illiterate apart from having learned the alphabet in the Nepali and English languages. The applicant stated that he had been provided with opportunities and incentives to learn English whilst in Australia. The applicant classes in English five days a week for about an hour day and could earn rewards by attending such classes. The applicant was in detention in Darwin for about seven months and was able to attend a significant number of classes during that time. In the afternoons, the applicant attended classes at [a named school], which were taught in the English language. The applicant also attended English classes when he was moved to detention in [another state], at the detention centre and at a TAFE. In 2013- 2014, when he was in community detention, the applicant went to an English Language School from 8 AM to 3 PM Monday to Friday. The applicant started high school in October 2014 and completed Year 11 in 2015. The applicant was scheduled to complete Year 12 in 2016.

13. With regard to the period of time in which the applicant remained in hiding at his mother’s house in Nepal, the applicant repeated that he stayed hidden in a part of his mother’s house for around 18 months. The applicant hid in a part of the house that could not be seen by anyone coming to the door. The place where the applicant hid was a small area separated from the rest of the house by a cloth. Only the applicant’s wife’s family and his own family knew that he was alive. The applicant’s wife was a friend of the applicant’s family before he went into hiding. The applicant’s mother was upset when his wife became pregnant because she did not realise that they were having a physical relationship. The applicant did not go outside the whole time and did not know how time was passing as dates are not important to the Nepali people.

    Psychiatric evidence

14. [Dr A’s] psychiatric report, dated [in] January 2016, notes that the applicant has very little memory of his past and struggles with daily short-term memory recall. The applicant confirmed an outline of background information provided by his assistant but was unable to elaborate to any significant to degree on his personal history. According to the report, the applicant provided some information about his circumstances and experiences that was consistent with the information provided to the Department and the Tribunal.

15. [Dr A] found that the applicant’s long-term and short-term memory impairment was particularly autobiographical. There were no clinical features of psychotic or thought disorder. There were no clinical features of a personality disorder. The applicant was fully orientated. There was no overt suicidality on assessment but the applicant struggled with purpose and meaning in his life. The applicant was assessed as having features of chronic anxiety and struggled with depressed mood, low self-esteem and hyper vigilance. The applicant struggled with daily activities and learning related to his memory difficulties. [Dr A] concluded that the applicant’s clinical assessment was consistent with severe PTSD and high dissociative function as a protracted psychological or unconscious survival defence.

16. [Dr A’s] letter of [February] 2016 relates to a psychiatric review session [in] January 2016. The letter notes that, upon review, it was evident that the applicant was struggling [detail deleted]. The applicant described increased insomnia, decreased appetite and loss of interest in the connections he had worked hard to make. The applicant reluctantly accepted a sample of antidepressant medication. [Dr A] stated that the applicant took the medication for one or two nights but did not continue and did not attend a review session scheduled for [later in] January 2016 as he planned to attend a [function]. [Detail deleted]

17. [Detail deleted] [Dr A] stated that the applicant’s circumscribed memory difficulties could be explained by psychological trauma. [Detail deleted]

    Findings

18. In considering the applicant’s evidence, the Tribunal has given due regard to the opinions expressed by [Dr A] as to the applicant’s mental state as well as her opinion that the applicant suffered from memory impairment that was consistent with major trauma and the background information provided to her. The Tribunal notes [Dr A’s] experience and qualifications and that her assessment of the applicant was based on a two hour clinical assessment and subsequent psychiatric review session. The Tribunal accepts that the opinions expressed by [Dr A] provide a possible explanation for many of the difficulties the Tribunal has with the applicant’s evidence.

19. The Tribunal found the applicant’s evidence with regard to his personal circumstances in Nepal unusually opaque. The Tribunal has been unable to locate the applicant’s home village on any map of Nepal. However, given its small size and remote location has not drawn any inference from this circumstance. The applicant provided consistent evidence regarding his family composition but was unable to provide information about who his sister was married to or the location in which she was residing while the applicant remained in Nepal. The applicant claimed that his mother sometimes undertook domestic work for other people and that he sometimes worked loading stones onto trucks but was unable to provide further information as to his family’s income or explain how his mother was able to pay an agent to assist the applicant to travel to Australia.

20. The applicant has no documentation whatsoever, claiming that he was never issued with a birth certificate, passport or identity card and never completed any formal schooling so does not have access to any school records. The applicant also claims that his child has never been issued with a birth certificate and he was never formally married and so has no marriage certificate.

21. The applicant was initially hesitant to provide any description of the family home in which he claims to have resided for [more than 10] years. When pressed, he provided a basic description of the layout, which was difficult to reconcile with his later evidence relating to the location of the toilet or bathroom.

22. Aspects of the applicant’s claims were vague and lacking in detail or appeared implausible. At hearing, the applicant initially described his encounters with the Maoist group in a very basic or general way. The applicant could not recall when the encounters happened or how old he was at the time. The applicant provided slightly more information when pressed in response to specific questions put to him.

23. The applicant’s account of how his mother found him in the jungle and brought him home was unconvincing. The applicant claimed that two villagers happened to come across him in the jungle and told his mother where he was. The applicant was unable to provide any explanation as to how his mother physically moved him home.

24. The Tribunal finds the applicant’s claims that he remained in hiding in his home for up to two years and that the Maoists and the applicant’s fellow villagers thought he was dead to be highly dubious. The applicant claimed to have lived in a two room house in a small village with his mother [and other siblings]. In this period, the applicant claims to have formed a romantic relationship with his “wife”, which led to her falling pregnant and giving birth to a child. The applicant claimed that his wife, who was [age range] years old at the time, was living some of the time at his home and some of the time at her parents’ home. Although the applicant claimed at hearing that his home had tiny windows and, in his most recent statutory declaration, claimed that he hid behind a cloth partition, the Tribunal finds it implausible that the applicant would in small village be able to conceal himself and convince his fellow villagers that he was dead for such an extended period in the context of his other evidence.

25. The applicant’s evidence with regard to his journey to Australia is equally troubling. As indicated above, the applicant was unable to explain how his mother was able to pay for his travel. The applicant has claimed he travelled by boat from [Country 1] yet other passengers on the same boat have given evidence to the Department that they boarded the boat in [Country 2].  The Tribunal accepts that as a young person who had never travelled outside of Nepal and who lacked formal education, the applicant might not be fully aware of what was going on around him and feel confused and disoriented. However, the Tribunal has difficulty believing the applicant’s claim to have no recollection of the boat stopping in [Country 2] because he was asleep or unconscious for most of the journey to Australia after he was overpowered by the boat’s fumes and endless rocking.

100.   The Tribunal continues to have difficulty reconciling the applicant’s evidence regarding his lack of education with his competence in the English language at the time of his Departmental interview and the level of sophistication with which he expressed himself in his written statements and at the Tribunal hearing. The applicant has claimed that he acquired language skills and education following his arrival in Australia and that he had learned the English alphabet in Nepal. However, in the context of the applicant’s lack of formal education in Nepal; his claim to have suffered a severe head injury at the hands of the Maoists; his claim to have remained in hiding for two years prior to leaving Nepal; and the psychiatric evidence regarding the applicant’s memory impairment and mental state, the Tribunal finds the applicant’s explanation difficult to accept.

101.   Against this background are the two allegations received by the Department. The Tribunal does not have before it any information regarding the source of the allegations and is unable to verify them. For this reason, the Tribunal considers that it would be unsafe to accord them any weight. However, the Tribunal notes that in the context of the credibility concerns outlined above, particularly, as regards the applicant’s identity and personal circumstances, if accepted, they would provide a plausible alternative explanation for the deficiencies in the applicant’s evidence.

102.   The Tribunal has carefully considered the applicant’s responses to the Tribunal’s concerns at hearing and in his post-hearing submissions. The Tribunal has also taken into account the applicant’s young age and placed weight on [Dr A’s] psychiatric reports. However, having weighed all the evidence, the Tribunal remains unsatisfied that the applicant has provided a truthful account of his personal circumstances and experiences to the Department, the Tribunal or [Dr A].

103.   For the reasons given above, the Tribunal is not satisfied that the applicant originates from a small village in the Bardiya district in Nepal. The Tribunal is not satisfied that the applicant received no formal education in Nepal. The Tribunal is also not satisfied that the applicant has never been issued with any identification documentation including a passport for travel outside of Nepal. The Tribunal is not satisfied that the applicant was ever approached by members of a Maoist group. The Tribunal is not satisfied that the applicant was ever abducted and beaten by members of a Maoist group. The Tribunal is not satisfied that the applicant remained in hiding for a period of 18 months to 2 years before departing Nepal by train to [Country 1].

104.   The Tribunal is not satisfied that the applicant has suffered any harm in Nepal in the past and, on the basis of the findings above, is not satisfied that there is a real chance or risk that the applicant would be approached by Maoists or suffer serious or significant harm from them now, or in the reasonably foreseeable future, were he to return to Nepal.

105.   The Tribunal is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

106.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied on the evidence before it that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

107.   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).

DECISION

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

Rachel Homan
Member