1417453 (Refugee)

[2016] AATA 3108

1417453 (Refugee) [2016] AATA 3108 (22 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417453

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Rachel Homan

DATE:22 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 22 January 2016 at 9:45am

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] May 2014 and the delegate refused to grant the visa [in] October 2014. The applicant previously applied for a protection visa on the basis that he was a refugee [in] April 2010. That application was refused [in] September 2010 and the Refugee Review Tribunal (RRT) affirmed that decision on 8 December 2010.

3. The applicant appeared before the Tribunal on 21 January 2016 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 for one or more of the five reasons set out in the Refugees Convention; and, if not, 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Applicable 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.

7. Section 48A of the Act imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 (SZGIZ) held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.

8. The Federal Circuit Court in SZVCH v MIBP & Anor [2015] FCCA 2950 (SZVCH) held that the effect of s.48A and the judgment in SZGIZ is that in circumstances such as those arising in the present case, a further protection visa application can only be validly made on the basis of the complementary protection criterion, and there is in general no obligation on either the Minister or the Tribunal to consider the refugee criterion.  The Minister and the Tribunal are not, however, prevented from considering the refugee criterion where a valid visa application has been made on the basis of the complementary protection criterion.

9. The judgment in SZVCH has been superseded by the judgment of the Federal Court in AMA15 v MIBP [2015] FCA 1424, which held that where an applicant has already been assessed against the refugee criterion, neither the delegate nor the Tribunal has any jurisdiction to consider a further application made on the basis of the complementary protection criterion against the refugee criterion. However, as there remains some judicial uncertainty in relation to this issue, the Tribunal has considered it appropriate to consider the applicant’s claims against both s.36(2)(a) and s.36(2)(aa).

10. 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).

11. 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.

12. 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’).

13. 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.

    Visa application

14. According to information provided in his visa application form, the applicant is a [age]-year-old Nepalese national from [a] village in the Myagdi district of western Nepal. The applicant identified as belonging to [a particular] ethnic group and Hindu religion. The applicant stated that he had never been married but gave details of his father, mother and [sibling] still residing in Nepal. The applicant claimed to have completed [number] years of education and to have been employed as [occupation] prior to his departure from Nepal.

15. The applicant stated that he was homosexual and did not want to marry a woman. The applicant claimed he was unable to carry out a homosexual lifestyle openly and without fearing discrimination in Nepal. The applicant was constantly in fear of being seriously harmed by homophobic and conservative people due to his homosexuality. The applicant stated that he left Nepal to avoid this treatment from such people and to protect his dignity and lifestyle. The applicant stated that the Nepalese authorities were weak and corrupt and would not offer him protection.

16. The applicant’s claims for protection were further set out in a translated written statement, dated 2 April 2014. According to his statement, the applicant was unable to reveal that he was homosexual to his family, relatives, friends and Nepalese society generally because he feared being expelled. The applicant claimed that there were no support groups or government agencies for homosexuals and it was difficult to live an openly homosexual life in Nepal.

17. The applicant claimed to have been employed as [occupation] for nearly [number] years between May 2002 and July 2008. The applicant claimed that in July 2008 he was talking socially with a local man at break time but the man reported to the [boss] that the applicant was sexually attracted to him. The [boss] believed the man and the applicant was suspected of being homosexual and his employment conditionally terminated on the spot. The applicant was told that he could only return to work if he married a woman. The applicant felt that his only option was to commit suicide or disappear. The applicant left his village and, after assessing his situation, decided to flee Nepal.

18. The applicant stated that as he grew older he noticed he did not feel sexually attracted to females. The applicant’s village is a very traditional society and men are expected to marry within their caste to women chosen by their parents and have children after their marriage. The applicant’s parents wanted him to marry a woman and have children but the applicant had to make false promises to his parents until he left his village.

19. The applicant claimed he was unable to carry on a homosexual relationship because of the homophobic Nepalese culture. For a range of cultural, social and religious reasons, homosexual behaviour is invisible in the applicant’s village. The applicant stated that he would live in terror of being outed and local people would routinely harass him. The applicant stated that if he were to be identified as gay he would be beaten, abused and mistreated and even jailed without bail. The applicant claimed he would be persecuted by society, the government and the police. The applicant claimed that he would be vulnerable to physical harm, harassment, discrimination, denial of basic social services, death and other serious harm because he is gay. The applicant stated that he would have to hide his status when going to the doctor or seeking employment. The applicant would feel strong pressure to marry, and experience anxiety and emotional abuse from his family and relatives.

20. The applicant arrived in Australia in January 2009 as the holder of a student visa granted to him as a dependent. The applicant stated that he delayed applying for a protection visa after his arrival because he was afraid he would be deported because he had entered into a false marriage in order to obtain a student visa. The applicant also stated that his limited ability to speak, read and write English and his inexperience with the Australian immigration system contributed to his delay.

21. The applicant explained that he travelled to Australia with the assistance of an agent in Kathmandu to whom he paid Rs.[amount]. Everything, including a false marriage certificate was arranged by the agent. The applicant did not know the student to whom he was ‘married’ and had never met her apart from when they completed the medical examination in connection with the visa application and at the airport when they travelled to Australia.

22. The applicant claimed that although policies related to the care and support of homosexuals exist in Nepal, they are not implemented. The applicant claimed that he would not be protected by authorities because most people in positions of authority are homophobic and corrupt. The applicant would be forced to behave discretely in the expression of his sexual orientation for fear of reprisal and serious harm from the police, community and his family. The applicant also stated he would be the victim of oppressive behaviour and harassment at the hands of the Maoists, police, civilian authorities and people who hate homosexuals.

23. The applicant was interviewed by an officer of the Department of Immigration [in] October 2014 and the Tribunal has listened to a recording of that interview.

    Review application

24. At the time he applied for review, the applicant submitted to the Tribunal copy of the delegate’s decision record. The applicant did not submit any additional documentary evidence prior to the Tribunal hearing.

25. At the Tribunal hearing, the applicant gave oral evidence with regard to his personal circumstances that was essentially consistent with the evidence previously provided. The applicant stated that he was from a village in Myagdi and had previously lived with his parents and [sibling]. The applicant told the Tribunal that he had been employed as [occupation] for [number] years prior to leaving Nepal.

26. The Tribunal noted that the applicant’s passport gave his profession as ‘farming’ and asked the applicant why it did not indicate that he was [occupation]. The applicant told Tribunal that he was employed as [occupation] and it was difficult for him to obtain the documents required to demonstrate that he was [occupation]. The Tribunal also noted that the applicant’s passport had been issued in 2006, which was a couple of years prior to his departure from Nepal. The Tribunal asked the applicant why he had obtained a passport at that time. The applicant responded that it was a necessary document.

27. The applicant confirmed that he had obtained a student visa to travel to Australia after false and misleading evidence that he was married was submitted on his behalf despite never having been in a genuine relationship with the person to whom he claimed to be married. The Tribunal noted that the applicant’s evidence raised a question in the Tribunal’s mind as to whether the information provided in connection with his protection visa application may also be false or misleading. The applicant responded that there was no opportunity for him to come to Australia on his own which is why he applied as a dependent. The applicant told the Tribunal that he had paid a broker Rs.[amount] using funds obtained from an uncle in [country]. The applicant told Tribunal that his uncle did not know how the money was to be used.

28. The applicant gave oral evidence that he did not tell his parents that he was coming to Australia and was no longer in contact with them or his [sibling]. The applicant stated that the last contact he had with his family was when he left his village. The Tribunal asked the applicant why he had ceased having contact with his family. The applicant responded that his parents had told him to get married and have children but he did not have any interest in doing so. The applicant stated that this was the reason why he had cut off all contact with his family. The applicant denied having any contact with any other relatives in Nepal.

29. The applicant gave evidence that he first realised he was homosexual when he was [a teenager]. The Tribunal asked the applicant to talk about how he came to this realisation. The applicant stated that he had an interest in the opposite sex. The Tribunal asked the applicant whether he was interested in men. The applicant said yes. The applicant denied having ever been in a relationship with any person in Nepal. The applicant also denied having ever disclosed his feelings towards men to any person in Nepal. The applicant confirmed that nobody in Nepal knew or suspected that he was homosexual. The applicant denied having ever investigated whether there were any support groups for homosexual people in Nepal.

30. The applicant told Tribunal that normally in Nepal people hate homosexuals which is why he feared harm were it to be known that he was homosexual. The Tribunal asked the applicant whether anyone in his family or community had ever said anything to him to make him feel that way. The applicant told the Tribunal about the occasion on which he had a conversation with a man from his village who later accused him of being sexually interested in him. The Tribunal asked the applicant why he thought the other man had gained that impression. The applicant stated that he was just having a normal conversation with the man but he suspected that the applicant wanted to have sex with him. The Tribunal put to the applicant that it was interested to understand why the other man would feel that way given the applicant’s other evidence that he had never told anyone he was homosexual, no one knew that he was homosexual and no one suspected that he was homosexual. The applicant said he did not know why the other man formed this opinion.

31. The Tribunal asked the applicant whether his [boss] had taken the allegation seriously. The applicant responded that he did. The [boss] had told the applicant that they didn’t want any homosexual people in the [workplace] because it might have a bad influence on [people]. The applicant said he was told that if he got married and had children he might be able to get his job back. The Tribunal asked the applicant about his response upon hearing that an allegation had been made. The applicant told the Tribunal that he had said to the [boss] that he had just had a normal conversation with the man and was not interested in having a sexual relationship with the man but the [boss] did not listen to him. The Tribunal noted that the evidence indicated that at this point in time the applicant had been employed by the [workplace]for [number] years without anyone ever complaining about him and no one knew or suspected that he was in fact homosexual. The Tribunal put to the applicant that it appeared unusually harsh that the [boss] would terminate his employment on the basis of this one allegation in those circumstances. The applicant agreed that he had not told anyone in the village about his homosexuality and stated that he did not know why the [boss] just listened to the other man and sacked him.

32. The applicant told the Tribunal that after being sacked he remained at home for about one week before leaving the village without telling anyone or saying goodbye to his family. The applicant went to Kathmandu where he stayed in a hotel for 2 to 3 months. The Tribunal asked the applicant why he had not said goodbye to his family or told them he was going. The applicant responded that his family would have asked lots of questions and he did not want them to know where he was going. The Tribunal asked the applicant how his relationship with his family had been prior to this incident. The applicant stated that previously it had been very good but after he was sacked they were suspicious about why he had been sacked. The applicant denied having any difficulties whilst in Kathmandu.

33. The Tribunal asked the applicant why he felt the need to leave Nepal as opposed to simply leaving his village and staying in Kathmandu. The applicant stated that he had no job or home in Kathmandu. Homosexual people were discriminated against in employment and when trying to obtain accommodation. There was pressure from within society to marry and have children.

34. The Tribunal asked the applicant in what way he thought life would be different for him in Australia. The applicant responded that that homosexuals were not subject to discrimination and could work freely and share their opinions with one another and get jobs. The Tribunal asked the applicant whether he had done any research into what the situation for homosexuals in Australia was before leaving Nepal. The applicant stated that after coming to Australia he had met some homosexual friends and they could talk and have dinner together. The Tribunal again asked the applicant how he knew that he would have more freedom to lead a homosexual lifestyle in Australia before leaving Nepal. The applicant responded that it was very difficult to obtain visas from other countries but his agent had told him that it was easy to get an Australian visa. The applicant knew that in Australia there were the same rights for all people. The Tribunal put to the applicant that if he felt it necessary to leave Nepal because of the situation for homosexual people in that country it seemed unusual that he did not investigate the situation for homosexual people in Australia before deciding to come here. The applicant confirmed that he had not done any such research.

1. The applicant told the Tribunal that he had told one friend in Australia that he was homosexual and had some other friends who were homosexual but with whom he had not openly discussed his sexuality. The applicant denied having entered into any relationships in Australia or having looked into any support groups in Australia. The applicant stated that he had been to homosexual clubs [to] dance and have beers with his friends. The Tribunal asked the applicant whether there was any reason why his friends who knew about his lifestyle in Australia had not provided evidence to support his application. The applicant said there was no reason.

2. The Tribunal asked the applicant why he had delayed for several months before applying for a protection visa after his arrival in Australia. The applicant stated that he was unaware of the policies or regulations for refugees. The Tribunal put to the applicant that if he left Nepal because of the harm he feared in that country, it seemed unusual that he would not look into his options for staying permanently in Australia immediately upon his arrival. The applicant told the Tribunal that in the beginning he did not know the rules or regulations and he was also afraid of being deported because of having provided fraudulent information about his marriage.

3. The Tribunal asked the applicant what he feared may happen to him if he were to return to Nepal now. The applicant stated that if he were to return to Nepal he would be discriminated against by society and would be unable to find employment and would have financial problems. The Tribunal asked the applicant whether there was any reason why he could not return to an urban area like Kathmandu. The applicant stated that he would have financial problems in Kathmandu as there would not be any jobs. The applicant said he may also have difficulty finding accommodation because, if it were known that he was homosexual, people would not want him to stay at their place.

4. The Tribunal discussed with the applicant country information, which it explained did not tend to support his claims. The Tribunal put to the applicant that on 20 September 2015, a new constitution had come into effect which included explicit rights and protections for homosexual people including a right to equality, a right to social justice and the ability to choose one’s preferred gender identity on citizenship documents[1]. The Tribunal explained that the country information indicated that there was no legislation which discriminated against homosexual people and the law, in fact, actively protected such people[2]. There are numerous advocacy groups supporting homosexual people in Nepal[3]. Historically, Nepalese society and the dominant religions of Hinduism and Buddhism have been relatively tolerant of homosexuals[4]. Nepal is seen as one of the most progressive countries in Asia on this issue and something of a haven for homosexual people[5].

   [1] CXBD6A0DE14246: "Nepal's New Constitution Leads Region in LGBTI Rights", Huffington Post, The, 06 October 2015,

   [2] US Department of State 2014, Country Reports on Human Rights Practices 2013 – Nepal, 27 February, Section 6. Discrimination, Societal Abuses, and Trafficking in Persons < <OG1F18C90124>

   [3] See, for example, United Nations Development Program  (UNDP) & USAID 2014, Being LGBT in Asia: Nepal Country Report: A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society, 25 February, LGBT Advocacy in Nepal (p. 7) < Accessed 4 May 2015 <CISEC96CF1305>

   [5] Dutt, Y 2014, ‘A queer ban in India, gay and legal in Nepal’, Hindustan Times, 11 January, para.2,4,8-9, 11 < an-in-india-gay-and-legal-in-nepal/article1-1171673.aspx> Accessed 19 February 2014 <CX318232>  

5. Nepal had an openly gay member of Parliament between 2008 and 2012. A transgender woman was elected as a representative of the Nepali Congress Party in January 2014. Beauty pageants for transgender and homosexual men, LGBT Olympics and a gay pride parade were held on an annual basis[6]. A parade took place in Kathmandu in August 2015 calling for gay rights and same-sex marriage to be enshrined in the new Constitution[7]. The United States Department of State had noted that incidents of violence were on the decline and the Nepalese police conducted LGBT rights training and closely liaised with the LGBT community to prevent and minimise incidents of harassment[8].

   [6] Dutt, Y 2014, ‘A queer ban in India, gay and legal in Nepal’, Hindustan Times, 11 January, para.2,4,8-9, 11 < an-in-india-gay-and-legal-in-nepal/article1-1171673.aspx> Accessed 19 February 2014 <CX318232>

   [7] CXBD6A0DE12792: "Nepal gay parade to enshrine LGBT rights in constitution", Kathmandu Post, 30 August 2015,

   [8] US Department of State 2014, Country Reports on Human Rights Practices for 2013 – Nepal, 27 February, Section 6. Discrimination, Societal Abuses, and Trafficking in Persons < Accessed 11 March 2014 <CIS27401>

6. The Tribunal put to the applicant that the country information suggested that, at least in the larger cities of Nepal, including Kathmandu, the applicant could live safely and openly as a homosexual person. Given that the applicant had personally cut off contact with his family, was of working age and had previously resided in Kathmandu and established himself in a foreign country, it was not apparent that there was any reason why it would be unreasonable for the applicant to do this.

7. The applicant responded that Nepalese society was still traditional and many people were uneducated and illiterate and they did not understand homosexual people. People may support their own family members but did not tolerate other homosexual people. The applicant stated that he would suffer financial hardship in Kathmandu because he did not have a job or home there. The applicant stated that in order to select a different gender identity on his citizenship documents he would be forced to obtain medical evidence. The Tribunal put to the applicant that even if he were unable to select a different gender identity on his citizenship documentation it was not apparent how this would amount to serious or significant harm. The applicant stated that although there were laws in place, they were not implemented to protect homosexual people and he would not be able to have an openly homosexual relationship in Nepal.

8. The Tribunal put to the applicant that it still had some doubts as to whether the applicant was genuinely homosexual but even if it were to accept the applicant was homosexual, the country information tended to suggest that the applicant would able to live in Kathmandu without a real chance or risk of him being seriously or significantly harmed. The Tribunal had to consider whether it was reasonable for the applicant to do that. The applicant responded that there was no outward sign or evidence that he could provide to prove that he was homosexual and that his feelings were all internal. The applicant stated that he would face a lot of difficulties in Nepal and wanted to have better life in Australia.

   Findings

9. The evidence provided by the applicant has remained largely consistent over time and the Tribunal notes that the claims made in his original protection visa application were almost identical to those made in the present application. Nonetheless, the Tribunal has a number of concerns about the applicant’s credibility.

10. The applicant’s written and oral evidence lacked detail and, at the Tribunal hearing, the applicant appeared reluctant to stray from in his written statement, often repeating chunks of information from his written statement in response to the Tribunal’s questions. The applicant was unable to talk freely or lucidly about how he came to realise he was homosexual. The applicant was also unable to provide any further detail in relation to the incident which led to him being fired from his job as [occupation].

11. Aspects of this claim seem to lack plausibility. For example, the Tribunal remains troubled as to why, if no one in the applicant’s village knew he was homosexual or suspected that he was homosexual, and the applicant was not aware of anything which would have led to the man who made the accusation against him forming the opinion that the applicant was sexually interested in him, the accusation was made all. The Tribunal also has difficulty understanding why the accusation would be accepted at face value when there was no other evidence to indicate that the applicant may have been homosexual and he had a [number] year employment history with [workplace].

12. Whilst in his written statement, the applicant expressed a fear of being excluded or ostracised from his family, his oral evidence at hearing indicated that he had cut off ties with his family himself after deciding to leave his village. The applicant’s evidence as to why he chose to depart without telling his family where he was going and his decision to avoid any further contact with them did not suggest that the applicant’s family had or would harm him. The applicant told the Tribunal that his relationship with his family had previously been very good. The applicant also told the Tribunal that his family were not aware of his homosexuality although they were suspicious about why he had been fired from his job. The applicant’s only explanation for why he had chosen to end all contact with his family was that they had asked him to get married and have children and he did not want them to ask questions about where he was going.

13. The Tribunal also has difficulty with the applicant’s evidence that he made no enquiries as to the situation for homosexual people in Australia given that he was seeking asylum from persecution for this reason in Nepal. Despite the applicant’s claim that he wished to leave Nepal because he felt unable to lead an openly homosexual lifestyle in that country, the applicant’s evidence was that he had never entered into a homosexual relationship in Australia and had only told one person in Australia about his homosexuality. The applicant has claimed that he has attended homosexual venues in [Australia] with friends who are homosexual, although he has not openly discussed his sexuality with those persons. Yet no evidence from the applicant’s friends has been provided to the Department or the Tribunal in support of the application despite the applicant having been on notice that whether or not he was genuinely homosexual was in issue from the time of the Department’s first decision to refuse to grant him a protection visa.

14. For all of these reasons, the Tribunal is not satisfied that the visa applicant is genuinely homosexual, that he was ever fired from his employment because an allegation had been made that he was homosexual, that anyone in the applicant’s family or community perceived the applicant to homosexual or that he departed Nepal owing to fears for his safety or well-being arising from his homosexuality. The Tribunal is not satisfied on the evidence that the applicant has told anyone in Australia that he is homosexual or that he has visited homosexual bars in [Australia]. The Tribunal is not satisfied that the applicant would be forced to behave discreetly or conceal any part of his identity were he to return to Nepal. The Tribunal is not satisfied that the applicant would endure any mental suffering arising from pressure to get married and have children or fears for his safety or well-being. The Tribunal is not satisfied that there is a real chance that the applicant would suffer serious harm of any kind in Nepal for any reason connected with him being homosexual. Nor is the Tribunal satisfied that there is a real risk that the applicant will suffer significant harm.

15. Even if the Tribunal were wrong in its factual findings above, the Tribunal is not satisfied that there is a real chance or risk of the applicant suffering serious or significant harm in Nepal were he to return there now or in the reasonably foreseeable future.

16. The Tribunal accepts that homosexual men may experience some level of societal discrimination or pressure, and that conservative attitudes towards homosexuality  and marriage persist particularly in rural locations in Nepal. On the basis of the country information referred to above, and discussed with the applicant at hearing, however, the Tribunal is not satisfied that if the applicant were to return to an urban area such as Kathmandu he would face a real chance of serious harm or a real risk of significant harm if it was known that he was homosexual, or if he was perceived as such. The information before the Tribunal indicates that not only are there progressive laws in place to protect homosexual people in Nepal, those laws are actively implemented by the police. Societal attitudes towards homosexual people, at least in urban areas, appear relatively tolerant and there are support groups and a reasonably active LGBT community in Kathmandu.

17. The Tribunal is further satisfied that it would be reasonable for the applicant to relocate to an urban area such as Kathmandu. The applicant has previously spent several months living in Kathmandu and told the Tribunal that he did not experience any particular difficulty during that time. The applicant has chosen to end contact with his family himself. The applicant has been resourceful enough to move to a foreign country and establish himself here, finding accommodation, employment and friends. Whilst the general standard of living and economic conditions may be less favourable in Kathmandu than they are in Australia, the Tribunal is not satisfied on all the evidence that this renders it unreasonable for the applicant relocate to Kathmandu.

18. The Tribunal notes that the focus of the Refugees Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. A person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

19. 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).

20. In considering, whether the applicant satisfies the complementary protection criterion for the visa, the Tribunal notes that under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. For the same reasons given above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm in Nepal. The applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).

21. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Rachel Homan
    Member