1417263 (Refugee)

[2015] AATA 3896

1417263 (Refugee) [2015] AATA 3896 (22 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417263

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Suhad Kamand

DATE:22 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 22 December 2015 at 4:46pm

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 applicant, a female national of Nepal, first arrived in Australia as the holder of a [temporary] visa [in] August 2008. She was granted that visa as the dependent spouse of her then husband. Since that time she has departed and re-entered Australia on two occasions. She applied to the Department of Immigration (Department) for the Protection (Class XA) visa the subject of this review [in] October 2013. The delegate refused to grant the visa [in] October 2014 and the applicant sought this Tribunal’s review of that decision. On the basis of all the evidence before it, and for the cumulative reasons given below, the Tribunal has concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirms the delegate’s decision.

2. Relevant law has been included at Appendix 1.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The applicant was born in [year]. She is a national of Nepal[1] and of no other country.

   [1] A copy of the applicant’s Nepali passport is at folio 31 of department file [Number]

4. Her express claims and those arising on the evidence are that she fears harm in Nepal for reason of the following, including cumulatively: she was threatened with harm in the past by a Maoist party named Tamsalin Group which targeted her due to her work which involved sending underprivileged children to school which was regarded by Maoists as promoting a “bourgeois education”. She claims to fear physical attack from this group because “they have been doing that for a while to the people who do not go with them or support them in a way they wanted (sic)”. She also feels “insecure because they have threatened me not to go back to my place”[2], adding that she is also an adverse target to this group because “I advocated for the need of children and teenagers to receive current school education”[3]. During her Tribunal appearance she added that the situation in Nepal is not good for women, in particular divorced women like herself.

   [2] Ibid, protection visa application form, folio 22

   [3] Ibid, folio 21

   Delegate’s decision

5. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention or under complementary protection. A copy of the delegate’s decision record was provided to the Tribunal by the applicant.

   Issues before the Tribunal

6. The Tribunal must generally assess whether: it is satisfied of the credibility and truth of relevant aspects of the applicant’s claims and evidence; on the evidence before it, it is satisfied that the applicant faces a well-founded fear, based on a real chance, of persecution involving serious harm for a Convention reason, if she returns to Nepal. If the Tribunal is not satisfied that she is owed Australia’s protection under the Refugees Convention, it must then consider whether she is owed complementary protection. That involves an assessment of whether there are substantial grounds for believing that she faces a real risk of significant harm in Nepal for any of the reasons claimed or arising on the evidence.

7. The Tribunal’s assessment is informed by a range of sources including: the Department’s file relating to the applicant which includes her protection visa application form and documents provided in support; the audio recording of her Department interview held [in] August 2014, conducted through a Nepali interpreter, which the Tribunal has listened to. The Tribunal’s assessment is also informed by its detailed exploration of the applicant’s claims when she appeared in person before it, via video link from [interstate], on 9 and 16 December 2015. During that appearance she communicated with the assistance of an interpreter in the Nepali and English languages. When asked at the commencement of her Tribunal appearance whether the applicant has any concerns relating to her capacity to communicate her claims and evidence to the Tribunal, she responded in the negative, although she mentioned later that she feels stress in respect of her review application and her divorce, which the Tribunal has taken into account in assessing the applicant’s evidence. An audio recording of the applicant’s Tribunal hearings is available. The Tribunal has had regard to the above as well as to other material available to it from a range of sources, referred to, where relevant, in its considerations below.

   Assessment of the applicant’s claimed circumstances – credibility

8. Having had the opportunity to discuss: the applicant’s claims and evidence with her during her Tribunal appearance; and reflect on that evidence in the context of all the evidence before it, the Tribunal has significant concerns regarding the truth of central aspects of the applicant’s claims and evidence. While the concerns detailed below are not singularly determinative of the credibility of the applicant’s claims overall, cumulatively, they cast such doubt on her reliability as a truthful witness that the Tribunal cannot be and is not satisfied: that central aspects of the applicant’s circumstances in Nepal are as she has claimed; and/or that the applicant is a person in respect of whom Australia has protection obligations.

9. In her Protection visa application form the applicant indicates that: she was born in [her home] village, Dhading Province, Nepal; she departed Nepal legally using her own passport issued in [2008]; she returned there in January 2012 “to see family members”[4]. The delegate’s decision record, a copy of which the applicant provided to the Tribunal, adds that the applicant: reported that she married in 2008; arrived in Australia [in] August 2008 as a dependent on her husband’s [temporary] visa; reported that she separated from her husband a few months later, has now officially divorced from him and no longer has any contact with him; returned to Nepal between [September] 2009 and [November] 2009, and again between [January] 2012 and [February] 2012; reported being employed irregularly in Australia as [an occupation] in regional Australia.  

   [4] Ibid, folio 18.

10. Regarding her employment in Nepal, in her Protection visa application form the applicant indicates that she worked as a “[position]” at [NGO 1][5] [for specified years]. She identifies no other employment in Nepal. She gives her address in Nepal as “[address]” from birth until coming to Australia in August 2008[6]. In support of her application she provides a letter from [NGO 1] dated [in] February 2006[7].

    [5] Ibid, folio 24

    [6] Ibid, folio 26

    [7] Ibid, folio 38

11. The applicant appeared before the Tribunal on two occasions in respect of the application the subject of this review. Her first appearance was on 9 December 2015. The applicant had not informed the Tribunal, prior to that appearance, that she requires an interpreter. However, the Tribunal arranged for an interpreter to be present by telephone. The interpreter was unable to clearly hear the applicant (who was appearing by video-link from [interstate]) and so the Tribunal adjourned the matter until 16 December 2015, where the applicant appeared again by video link, but was assisted by an interpreter in the Nepali and English languages who was physically present before the Tribunal in Sydney. The Tribunal has, in its decision below, not relied on evidence given by the applicant during her first appearance on 9 December 2015. In the balance of this decision record the Tribunal’s reference to the applicant’s Tribunal appearance refers only to her appearance on 16 December 2015, unless expressly stated otherwise.

12. During her Tribunal appearance, multiple aspects of the applicant’s evidence impressed the Tribunal as problematic, leaving the Tribunal with the impression that the applicant was not forthcoming or truthful in her evidence.

    Marriage and Divorce

13. The applicant claimed that she was married in 2008 and came to Australia as a dependent spouse on her former husband’s [temporary] visa. She told the Tribunal that: she married in Nepal around 6 or 7 months before coming to Australia; she is now legally divorced from her husband and has no contact with him; she thinks she married in 2007 but she is not sure of the date or month and she cannot recall her age at the time she married; she may have been [age] when she married. She recalled, before the Tribunal, that she entered Australia in September 2008, which is largely consistent with Department movement records indicating that she entered Australia [in] August 2008. The Tribunal asked the applicant about the breakdown of her marriage and when she and her husband stopped living together as husband and wife. Her evidence on this matter was changing and vague. She offered variously that: they stopped living together maybe four and half or five years ago; the conflict between them began around 5 years ago. The Tribunal noted that she has been in Australia now for just over 7 years, and on the information she has just given it seems she and her husband stopped living together as husband and wife in around 2010, some 2 years after they arrived in Australia. She responded that: this is not correct; they lived together in Australia for around 7 months before she left home to travel to [three different states] to look for work while her husband remained in Melbourne. Regarding her divorce, she said that it was a legal/formal divorce which was formalized in Australia; she does not have a divorce certificate or any other documentation to evidence the divorce. When asked how she can be certain that she has been legally divorced in Australia and to identify the practical steps taken to legalise that divorce she responded that she didn’t do anything; her former husband did everything; and she just agreed with him. She also told the Tribunal that she is not sure when she got divorced but it might have been in January. She is not sure of the year. On the basis of the evidence before it and in the context of the cumulative credibility concerns detailed in the balance of the Tribunal’s reasons, the Tribunal is not satisfied that the applicant is legally divorced from her husband.

    Past adverse experiences

14. The applicant claims that she received, while living in Nepal threats to her safety and her life from Maoists who were opposed to work she undertook in Nepal up until 2003. She told the Tribunal that this work comprised teaching women, while in her protection visa application form she indicated specifically, that she was teaching children and made no reference to teaching women. She told the Tribunal that he work which made her the target of these Maoists threats was undertaken by her firstly, for a co-operative named [NGO 2]. She said, however, that the threats did not start until she started teaching women about good governance, which was when she worked at [NGO 1].

15. She told the Tribunal that, in her work with [NGO 2] she was the “treasurer” who handled and distributed cash to underprivileged women. She also gathered together poor and illiterate women and taught them. When asked what she taught them she had trouble elaborating. She offered initially that, through [NGO 2], she taught women about human rights, good governance and democracy. When asked to explain what she taught about good governance and democracy she responded that she told women how they can improve their lifestyle and follow the government. When asked to detail what she taught women about following the government she responded that it was “not a big deal” and she followed a book; she would teach them how to survive in government. When asked to elaborate on how she taught them to improve their lifestyle she responded that she taught them “how to survive in society” and how to “develop solidarity”. When asked what practical advice she offered on these topics she said that society is full of uneducated people; women and public life in Nepal is dominated by men; she taught women about their role in society including how to talk in the family, how to manage cash and how to do chores. The Tribunal considers the applicant’s evidence regarding her role at [NGO 2] to be vague. The applicant demonstrated great difficulty elaborating on her claimed work with [NGO 2], raising doubts, particularly in the context of the balance of the concerns detailed in the Tribunal’s considerations, about the truth of her claim to have worked there at all and/or in the capacity claimed.

16. The above concerns are compounded by the following. While telling the Tribunal that her teaching role with [NGO 2] included teaching women about democracy and good governance, she said that the threats against her only began when she became a member of staff for [NGO 1] in her village. She claimed this was because at [NGO 1] her role involved teaching women about good governance. When reminded that she had described her role at [NGO 2] as one in which she taught women about democracy, good governance and how to “follow the government” she changed her evidence, offering that at [NGO 2] she was not really teaching but advising women about how to use money.

17. Regarding her work at [NGO 1] she told the Tribunal that she worked for [them] for around a year. She was unable to address the discrepancy between that oral evidence to the Tribunal and the letter she submitted to the Department from [NGO 1] which indicates that she worked there for around 2 years starting in [year] and ending in [year]. When asked to describe the work she did for [NGO 1] her description was much the same as that offered in relation to [NGO 2]. Specifically, she said that, at [NGO 1]: she followed a book from which she taught women about “good governance”; she taught women whose husbands don’t support them in household work and who torture their wives at home. The applicant would teach these women that they should not accept such torture and that they can do many things. She also taught them to do basic things like write their names.

18. The Tribunal discussed with the applicant the letter from [NGO 1] which she submitted to the Department referring to her 2 years of employment there[8]. The Tribunal noted that the letter identifies her “main duties” as including “socio-economic data analysis and development focusing specifically on rural women” and asked what she can tell the Tribunal about that aspect of her work. She responded that she has already told the Tribunal about her role, repeating again that she taught women how to save money and work in a group. She repeated that she taught from a book. The Tribunal also asked her to talk about another of her “main duties” referred to in that letter as “Annual and periodic planning for different women empowerment programs…”. In response she repeated evidence given earlier to the effect that she taught women how to live in society, manage money and deal with family matters. She appeared unable to elaborate on the claimed role she said she had at [NGO 1], and unable to elaborate or detail the main duties the letter from [NGO 1] describes her as undertaking for a period of around 2 years. This evidence, in the context of all the evidence and concerns detailed in this decision record, casts doubt over the reliability of the document claimed to be from [NGO 1], and the truth of the applicant’s claims to have worked for [them] in any capacity, and/or the capacity claimed.

    [8] Ibid, folio 38

19. The above concerns are heightened by the following. The applicant’s evidence to the Tribunal was expressly that she was the target of threats because she had undertaken work teaching women. She told the Tribunal that, occasionally, she also taught children in a playgroup, teaching them things like the alphabet. However, her evidence to the Tribunal remained expressly that it was her work teaching women which made her a target for threats of harm from Maoists. However, as put to her, her work teaching women in Nepal is not even mentioned in her protection visa application form. Rather, the only claims she made in that form were that “there were threats to me by ‘Tamsalin’ group not to carry out the job I had been doing. My job as a [position] of ‘[NGO 1] was to encourage underdeveloped children to go to school. However, ‘Tamsalin’ Group, now a breakaway faction of communist party (Maoist) did not want children to receive what they called ‘bourgeous’ (sic) education”[9].  She continues, in another part of the form, that “’Tamsalin Group who are against the present education and state structure are armed group. They may physically harm me as I advocated for the need of children and teenagers to receive current school education”.

    [9] Ibid, folio 23

20. When the Tribunal put to her its concern that there is no mention at all in her Protection visa application form of threats of harm being made in respect of her teaching women, she responded that this is a “mistake” in her Protection visa application form; her English is poor, she couldn’t afford professional assistance; and her Protection visa application was prepared with the assistance of a Nepali friend in Queensland who has been present in Australia for around 7 years and who speaks both Nepali and English. She also offered also that it is a “typo”. However, as explained to the applicant, the responses in the Protection visa application form are handwritten, not typed. As put to the applicant, it is very difficult to accept that much a mistake could arise resulting in the Protection visa application form: not only omitting the central aspect of the claims presented to the Tribunal (that she is the target of threats because of her work teaching women); but claiming a completely different reason why she has been the target of threats (ie, for teaching underprivileged children). The applicant offered only that: she is sorry; she has already explained that it was a mistake; everything she said is true. The applicant’s evidence does not explain how such a “mistake” could arise and considers the concerns put to the applicant in this regard to cast significant doubt on the truth of her claims to have worked in any capacity with [NGO 1] and/or to have received threats of harm in Nepal for any of the reasons she has claimed.

21. Regarding the threats she claims to have received in Nepal, the applicant’s evidence was also unconvincing. Specifically, the applicant told the Tribunal that the threats were delivered to her face-to-face, by ‘rumour’ and through other people. She expressly said that the threats were never delivered to her in any other way and that she never received any threats by phone as she never had a mobile phone in Nepal. However, as put to her under section 424AA of the Act, that evidence differs from the evidence she is audio recorded as giving during her department interview [in] August 2012. Specifically, in that interview she is recording giving information to the effect that: the threats to harm her were delivered by letter, by phone, and in person at her home at night; she continued to receive threats by phone even after she left her home village for Kathmandu, so she stopped using her phone. As explained, this information is relevant as it differs from the evidence she gave the Tribunal to the effect that she was never threatened by phone and never had a mobile phone in Nepal. The Tribunal explained that, if it relies on this information it may find that she has given inconsistent accounts regarding central aspects of her circumstances, casting doubt over the truth of those circumstances and her credibility more generally. The Tribunal explained that this may lead the Tribunal to not be satisfied that she is a person in respect of whom Australia has protection obligations.  The Tribunal informed the applicant of her right to request additional time to respond and that she may respond immediately.

1. Opting to respond immediately the applicant offered that she was stressed by her marriage breakdown and she was and remains unable to remember everything and that she has suffered a lot. Her evidence did not address, nor does it overcome, the substantive concerns put to her in paragraph 22 above, and the Tribunal considers the discrepancies in the evidence put to her regarding how the threats to harm her were delivered to cast significant doubt over the truth of those claims and the applicant’s overall reliability as a credible witness.

2. Similarly, the applicant told the Tribunal that, due to the threats of harm she had received in her parents village ([name], Dhading Province), she ceased work for [NGO 1] in around 2003 and moved immediately to Kathmandu, where she remained for around 5 years before coming to Australia. She said that, up until she left her parents village she had lived in her parents’ home since birth. She gave evidence that those who threatened her came to her parents’ home to ask after her, demonstrating that they knew where she lived. Yet, despite her evidence that she lived with her parents for the 1-3 years she claims to have been threatened while working for [NGO 2] and [NGO 1], her evidence was that she was not actually harmed in any way. This compounds the Tribunal’s concern that the applicant was not a target for harm by anyone when she was living in Nepal.

3. When asked how she supported herself for 5 years in Kathmandu the applicant told the Tribunal that she worked as [another occupation], helping families with [specific] duties. She told the Tribunal that this is the only work she did while living in Kathmandu and she did not work in any other capacity in Kathmandu. However, as put to her under section 424AA, she is audio recorded telling the department in her interview [in] August 2014 that she worked casually in supermarkets to support herself in Kathmandu. The Tribunal again explained that this information is relevant because it differs from the evidence she gave the Tribunal, suggesting that her circumstances, including her time in Kathmandu, may not be as she has claimed, which, if relied on, could result in the Tribunal finding that she is not a truthful witness. She was informed of her right to request additional time to respond and that she may respond immediately.

4. She responded immediately with the same response detailed at paragraph 23 above. Her evidence did not address, nor does it overcome, the substantive concern put to her regarding discrepancies in the evidence given regarding how she supported herself in Kathmandu. These discrepancies cast significant doubt over the truth of her claims that she lived in hiding in Kathmandu with limited means of financial support. The Tribunal also considers those concerns to cast further doubt on the applicants overall reliability as a credible witness and the truth of her claims and evidence overall.

5. The Tribunal also discussed with the applicant that, while she is claiming to be fearful of returning to Nepal now because of ongoing threats she claims to have experienced since around 2001, she did not mention having any fears of harm in Nepal until October 2013, some 6 years after she first entered Australia, and she voluntarily returned to Nepal on 2 occasions in 2009 and 2012. While the Tribunal is mindful of the applicant’s evidence that she returned because her mother was unwell, the Tribunal does not consider her willingness to return to Nepal or her stays for at least 4 weeks on each occasion to be consistent with her claims to have feared serious or significant harm, including kidnapping and death, in Nepal in the past or to genuinely hold such fears in respect of the reasonably foreseeable future.

6. Based on all the evidence before it, including the cumulative considerations and concerns above, the Tribunal is not satisfied that: the applicant worked in any capacity as an educator of children or women for any organisation, including [NGO 2] or [NGO 1]; the applicant was threatened with harm by anyone in Nepal at any time in connection with that claimed work or for any other reason.

   Gender based claims

7. The applicant informed the Tribunal that she is also concerned that she may be harmed in Nepal as a woman. She said that women do not have the same rights as men and generally, divorced women like her are not supported by their families. As reasoned above, however, the Tribunal is not satisfied on the evidence advanced that the applicant is in fact divorced. Further, the applicant’s evidence to the Tribunal was that she is in frequent telephone contact with her mother and father, and also with her [sibling] who works [in a business], lives in Kathmandu and supports the applicant’s parents. This evidence suggests that the applicant remains an accepted part of her family in Nepal and does not suggest that she will be denied their support in Nepal. The Tribunal finds that the applicant remains in contact with members of her family in Nepal, including her [sibling], mother and father, and that she would continue to receive their support in Nepal. The Tribunal finds that she will be perceived socially in Nepal as part of her family network and that this perception would minimize any actual and perceived vulnerability as a woman in Nepal.

8. The applicant provided no independent evidence suggesting that she faces a real chance of serious or significant harm in Nepal as a woman or as a divorced or separated woman. However, the Tribunal has reviewed independent sources to inform itself of what the applicant may face in Nepal as a woman. The Tribunal acknowledges that some reports refer to women in Nepal facing obstacles, difficulties and inequalities, however the Tribunal does not consider reports of such generalised hardships helpful in assessing what may await a woman of the applicant’s particular circumstances in Nepal[10].

   [10] Violence against Women/Girls Assessing the Situation in Nepal in 2013, by the ISSC

9. The Tribunal has also considered independent reports relating to the treatment of divorced women in Nepal. While the Tribunal does not accept, on the evidence advanced, that the applicant is legally divorced, the Tribunal has turned its mind to what may await the applicant in Nepal should she divorce from her husband in the reasonably foreseeable future. The reports available to the Tribunal indicate positive changes in Nepal for divorced women.  For instance, sources report an increasing number of Nepali women opting for divorce. A 2011 article reported that filing for divorce by women is “no longer confined to urban centres” and cited the example of a District Court which in recent years has seen the number of divorce applications from women “increase precipitously”, with most of these women aged between 15 and 25 years. It reported also that:

   ... the enactment of Nepal’s Family Law, 2006, which ensured equal distribution of assets between men and women following divorce, allowed women more financial room to lead an independent life. Besides these, growing female literacy and entry of more women into the workforce has also had a visible effect on the divorce rate.[11]

   [11] ‘No men, no cry’ 2011, The Kathmandu Post [sic], 10 September, FACTIVA – Accessed 15 May 2012 

10. In 2011 it was reported that the average age for divorce in cases filed with the Kathmandu District Court was between 20 and 35 years. Women had become able to put aside social stigmas relating to the breakdown of marriages, and 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.[12] An editorial in 2010 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”.[13]

    [12] ‘On divorce’ 2011, Republica, 13 May, FACTIVA – Accessed 15 May 2012 

    [13] ‘It’s complicated’ 2010, The Kathmandu Post, 28 October Accessed 15 May 2012 

11. As discussed with the applicant, she has given evidence that she has worked for several years in her parents village, as well as working and living for some 5 years in Kathmandu, several of those years pre-dating her marriage, without experiencing harm of any nature. She has also lived for over 7 years in Australia, traveling extensively, and on her own evidence, independently, between [several states]. She has also travelled on her own to Nepal on two occasions. She also speaks some English. She has a [sibling] who works in a [business] and her parents, on her own evidence, earn an income from land they own which is cultivated by a third party. Her evidence revealed her parents to continue to reside in their family home in [her home] village, while also having additional support from the applicant’s [sibling] in Kathmandu.

12. The evidence in its totality suggests to the Tribunal that the applicant would have a home with her parents in [her home] village, as well as family support from her s[sibling] in Kathmandu should the applicant choose to live there as she claims she did for 5 years immediately before coming to Australia. While the Tribunal is not satisfied that the applicant was harmed or threatened with harm in her parents village for any reason as claimed, or that she faces a real chance of serious or significant harm for any reasons should she return there, on the totality of the evidence before it the Tribunal finds that, if the applicant returns to Nepal she would return to Kathmandu where there are greater opportunities and where she claims she resided for some 5 years immediately before coming to Australia. With her family support together with the independent information referred to above the Tribunal is not satisfied that the applicant faces a real chance of serious and/or significant harm as contemplated by the relevant law in Kathmandu or anywhere else in Nepal as a woman in the reasonably foreseeable future, even if she does separate or divorce from her husband.

13. For the reasons given above, 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).

14. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

15. 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

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

    Suhad Kamand
    Member

    
    

    ANNEXURE 1

    RELEVANT LAW

17. 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

18. 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).

19. 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.

20. 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.

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

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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

28. 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’).

29. ‘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.

30. 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

31. 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.

    Annexure 2

    Maoists after the November 2013 elections

    The South Asia Terrorism Portal (SATP) Nepal Assessment 2014[14]  reported as follows about the shifting balance of power in Nepal following the November 2013 elections.

    [14] accessed 26 November 2014

    “The successful holding of elections for the second Constituent Assembly (CA) on November 19, 2013, was the critical development that transformed the political environment of the country, despite repeated delays, hiccups and rising bitterness in some political formations during the run-up to the elections. Eventually, a voter turnout of 78.34 per cent conferred tremendous legitimacy on the process, and this could not be undermined by the angry reactions of the Unified Communist Party of Nepal - Maoist (UCPN-M) who were smarting under the brutal electoral rebuff they received. Under the first-past-the-post (FPTP) electoral system, the Nepali Congress (NC) won largest number of seats, 105; followed by the Communist Party of Nepal-Unified Marxist-Leninist (CPN-UML), 91; with the UCPN-M getting just 26. The NC got an additional 91 seats under the proportional representation (PR) system; the CPN-UML got 84 PR seats and the UCPN-M, 54. The NC consequently emerged as the largest party in the 601-member CA, with 196 seats; followed by CPN-UML at 175 seats; and UCPN-M with 80 seats.  The often strident and disruptive Madhesi parties have, however, been substantially marginalized, securing just 53 seats (12 under FPTP system and 41 under PR system).

    On January 3, 2014, the Election Commission submitted the list of 240 lawmakers elected under the FPTP electoral system and 335 lawmakers under the PR system. The remaining 26 members of the 601-member CA will be nominated by the Cabinet, once formed. The submission was delayed because of the UCPN-M’s earlier decision not to submit names for its PR seats. The party had alleged that the elections were not fairly conducted and had challenged the veracity of the results.

    Significantly, in the last CA elections held in 2008, the CPN-Maoist (the parent party of the present UCPN-M) had emerged as the largest party in the CA, securing 229 seats (120 FPTP, 100 PR and nine nominated); followed by NC, with 115 seats (37 FPTP, 73 PR and five nominated); and CPN-UML, with 108 seats (33 FPTP, 70 PR and five nominated).

    Clearly, the UCPN-M faced a rout in the recent elections. Party Chairman Pushpa Kamal Dahal aka Prachanda's personal loss from Kathmandu Constituency No. 10, would have been unimaginable a few months earlier, despite the considerable weakening of the party following the vertical split in June 2012. Clearly, as of now, the party has lost its pole position in Nepali politics. The Maoists had emerged as the main political force in Nepal after the signing of the CPA in 2006 and the subsequent 2008 polls for the first CA.

    Eventually accepting the current ground realities, the Maoists, who had boycotted the counting of votes, later retracted from their defiant position and confirmed that they would cooperate with the new Government in framing of the new Constitution. This is a major development, since UCPN-M, in the past, had created many unwarranted obstacles in the writing of the Constitution and had repeatedly threatened to go back to the ‘path of revolution’. With diminishing influence and its own willing participation in the electoral process, it cannot credibly threaten the prevailing peace. In a more recent setback, differences have emerged between Prachanda and senior party leader and former Prime Minister Baburam Bhattarai, in the aftermath of the electoral debacle. The differences widened further over the selection of candidates by the party leadership under the PR system. As of now, however, Bhattarai has declared that he has no intention of splitting the party, though he has warned of 'serious consequences' if Prachanda continues with his "undemocratic working style".

    Crucially, the failure of the Mohan Baidya-led faction of the CPN-Maoist to obstruct the elections, or even to significantly impact on the process, despite constant threats and full-throttle opposition, demonstrated that this group is also a spent force, with little current capacity to adversely influence the relative stability that prevails in the country...”