1417478 (Refugee)

1417478 (Refugee) [2016] AATA 3688 (31 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1417478
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Rachel Homan
DATE:31 March 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 31 March 2016 at 3:51pm
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

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).
The applicant, who the Tribunal accepts is a citizen of Nepal, applied for the visa [in] January 2013 and the delegate refused to grant the visa [in] October 2014.
The applicant appeared before the Tribunal by video link [on] 14 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from her husband,[Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
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.
For the reasons that follow, the Tribunal has determined that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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’).
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
According to information provided in her visa application, the applicant is a [age]-year-old Nepalese national born in [Nepal]. The applicant identified as belonging to [an] ethnic group and Hindu religion. The applicant gave her marital status as married and stated that she was married at [a registry office in Australia] [in] 2008.
The applicant declared that she entered Australia as a student in April 2007 and the Department’s movement records show that the visa applicant has not departed Australia since that time. The applicant stated that she left Nepal to further her studies.
The applicant’s claims for protection were set out in a handwritten statutory declaration in the English language made on 19 January 2013. According to her statutory declaration, the applicant is Hindu by birth and her husband is [Religion 1] by birth. The applicant claimed that she had been told by her parents that her caste group was high within the [ethnic] group. The applicant claimed that her husband came from the same ethnic group but a different, [Religion 1], [caste]. [Mr A]’s understanding was that his caste was higher than the applicant’s.
The applicant stated that she met her husband approximately one and a half months after she arrived in [Australia] but had previously known each other in high school in Nepal. [Mr A] obtained her mobile number through a mutual friend and they began to see each other and fell in love. The applicant started living with her husband [approximately] 3 months after her arrival in Australia.
In September 2007, [Mr A] was taken into immigration detention after he failed to renew his student visa. [Mr A] did not want to go back to Nepal as he had a [problem] and the applicant feared that he would have a problem from relatives to due to their different religions and castes. The applicant stated that her mother and [relative]s knew about the relationship but her father was not aware of the relationship.
The applicant stated that she was afraid that if she were to return to Nepal now a lot of damage would be done to her family and herself. There had been lots of destruction within her family in the past because of inter-caste marriage. The applicant closed her Facebook account for a period of time because it showed pictures of her and her husband and lots of relatives and members of her community saw them and threatened her mother because the applicant was in a relationship with a man of a different caste and religion. The applicant stated that if she were to return to Nepal she would be seriously harmed. The applicant stated that relatives and members of her community always asked her mother questions and the applicant’s mother had told her not to come back to Nepal under any circumstances or she may be seriously harmed or killed. The applicant further stated that there would be lots of quarrels between her family and her husband’s family and within her family.
The applicant provided several examples of inter-caste marriage within her family. When the applicant was 12 or 13 years old, her [relative] fell in love with a man from a different caste. The applicant’s relatives beat him [up]. The applicant’s [relative]’s parents locked her in the house for several months and beat her severely. After being detained for a long period, the [relative] was married to another person. The applicant stated that Nepal is a male dominated country and all important decisions are made by males. Females don’t make any decisions and if they do they are hated by society.
The applicant also cited the case of another relative who had married a lower caste woman. After they married, the woman had no authority to look after her family was not authorised to cook anything and was treated like a servant. She was not allowed to go into the kitchen and was forced to do heavy work and given unhygienic food to eat. The woman died after giving birth due to the pressure from her husband’s family and her child was raised by her parents.
Another relative married a lower caste girl who was treated very badly by her husband’s family. She was mentally destroyed and committed [suicide].
The applicant also stated that she fears that if it were to become known to her parents or relatives that she had undergone an abortion she may be killed. For a Hindu woman to fall pregnant before marriage is a sin in the eyes of her parents and relatives. If the applicant’s relatives found out they may harm the applicant’s family.
The applicant claimed that she would be pressured by her family to marry another person. If that other person found out about her past relationship and importantly her pregnancy she would be killed. In Nepal, there are lots of problems with dowries if there has been a past pregnancy and relationship, particularly an inter-caste relationship.
The applicant claimed that she would be unable to access police protection in Nepal owing to corruption.
Submitted with the application were documents pertaining to medical treatment the applicant underwent for [a condition] in 2010 and the payment of theatre fees for the termination of a pregnancy in[year]; the applicant’s [marriage] certificate; a certified copy of the applicant’s Nepalese passport; and newspaper articles relating to an abduction, a clash between non-Dalit and Dalit communities over an inter-caste marriage, and a murder of a woman who had been the victim of domestic violence perpetrated by her husband and his family.
The applicant was interviewed by an officer of the Department of Immigration [in] July 2013 and the Tribunal has listened to a recording of that interview. The interview was attended [Mr A].
Prior visa applications
Information before the Tribunal indicates that in June 2009, the applicant applied for a partner visa, sponsored by her husband who had been granted a protection visa in 2008. The visa application was refused after the applicant failed to respond to correspondence sent by the Department requesting further information. The applicant sought review of the decision to refuse to grant her a partner visa but lodged her application with the Migration Review Tribunal (MRT) outside the prescribed time limits. The MRT found that it lacked jurisdiction to review the primary decision.
The Tribunal also has before it the decision record of the Refugee Review Tribunal (RRT) relating to [Mr A]’s application for a protection visa, dated [in] December 2007. [Mr A]’s claims related to [details deleted]. There is no mention of [Mr A] making any claims relating to his relationship with the applicant in connection with his own protection visa application.
Tribunal hearing
At the Tribunal hearing, the Tribunal took oral evidence from the applicant and her husband separately. The applicant gave an account of her immigration history in Australia. The applicant claimed that she had applied for a protection visa because she had not told her family in Nepal about her marriage. No person in her family had ever entered into an inter-caste marriage. The applicant told the Tribunal that her husband’s family were [Religion 1] and believed that they are of a higher caste than the applicant. The applicant’s family believe their own clan or group was of higher status.
The applicant stated that although no member of her family had entered into an inter-caste marriage, one of her [relatives] had an affair with a lower caste person. When the family found this out, they assaulted the applicant’s [relative] and the other person. The applicant’s [relative] was forced to marry another man. The applicant told Tribunal that her village was a traditional society and they did not believe in love marriage, only arranged marriage. Nepal is a male dominated society and it is not acceptable for someone to enter into an inter-caste marriage. The applicant told Tribunal that she had not been back to Nepal for nine years and members of her community had started to question whether the applicant was in a relationship. The applicant’s uncles had threatened to harm her if they found out that she was having an affair. The applicant was afraid that they would harm her and her husband.
The applicant told Tribunal that she had completed [Course A] qualification in Australia in approximately June or July 2009. The applicant confirmed that her parents had been paying her course fees. The applicant had worked in [jobs]. In 2009, she and her husband were unemployed, at which time they moved to [another city]. The applicant borrowed some money from her parents and friends around that time. The applicant stated that she was not currently receiving any financial support from her parents and the last time she received money from them was $500 they gave her at the time she applied to the MRT. Around the same time, [Mr A]’s mother provided him with a small sum of money. The Tribunal asked the applicant whether she had told her parents what the money was to be used for. The applicant stated that she had not mentioned that she was applying to the MRT but had told her parents that she had some financial problems. [Mr A] at that time had some [health] issues and [problems].
The applicant told the Tribunal that her family included her parents and [a sibling] and lived in [town], which was approximately a one to one and a half-hour drive from Kathmandu. The applicant’s father was not presently employed but previously worked for the [government]. The applicant’s mother was previously employed as [occupation]. The applicant’s [sibling] owned [a] shop.
The applicant gave evidence that her husband’s parents lived in[location], approximately a 45 minute drive from her own family home. The applicant told the Tribunal that she and her husband were classmates in [high school] but were not in a romantic relationship at that time. The applicant told Tribunal that her and her husband’s families did not know each other.
The applicant gave evidence that she and her husband were married at [an Australian registry office]. Afterwards, they had a small celebration at their home to which they invited their friends.
The applicant told Tribunal that she had no relatives living in Australia. Asked whether the applicant had told any member of her family about her marriage, the applicant stated that she had told a cousin in Nepal. The applicant told the Tribunal that her mother knew of her relationship but did not know that she and her husband were married.
The Tribunal noted that the applicant’s written statement had indicated that many members of her family in Nepal were aware of her relationship through her Facebook account. The applicant agreed that this was the case, which was why she had deactivated the account. The applicant stated that she had subsequently reactivated the account but taken off the photographs of her with her husband. The Tribunal asked the applicant why she initially posted photographs of her and her husband, if she was concerned about the reaction of her family were it to be known that she was in an inter-caste relationship. The applicant stated that she didn’t initially realise that the relationship would be a problem.
The Tribunal put to the applicant that her written statement suggested that her mother was aware that she had been married for four years. The applicant repeated that she had never told her mother that she was married but had told her mother about her boyfriend. The Tribunal asked the applicant why he she was prepared to tell her mother about the relationship but not prepared to reveal that she was married. The applicant responded that she did not want to tell her mother that she was married because she did not want her mother to be pressured by the community. The Tribunal put to the applicant that if the members of her family or community were concerned about her being married to a person of a different caste it is likely that they would also object to her being in a long-term relationship with a person of a different caste. The applicant stated that she didn’t think her mother would tell anyone about the relationship but if she knew they were officially married, she might tell people. The applicant gave evidence that she did not think that her mother had told her father about the relationship because, if her father knew, he may torture the applicant’s mother. The applicant’s father had asked her mother about the rumours that she was in a relationship but she believed that her mother had never mentioned the relationship to her father.
The Tribunal asked the applicant what type of visa her parents thought she held in Australia. The applicant gave evidence that her parents still believed that she was studying in Australia. The Tribunal noted that the applicant had given evidence that her parents paid for her original course and asked how her parents thought she was paying for her course now. The applicant told the Tribunal that she had mentioned to her parents that she had a job in Australia which gave her enough money to pay for her accommodation, food and course fees. The Tribunal asked the applicant what type of course her parents thought she was completing. The applicant stated that her parents thought she was studying[Course A]. The Tribunal asked the applicant whether she was saying that after nine years in Australia her parents still thought she was studying[Course A]. The applicant responded that her parents were not well educated and so did not understand what was going on in Australia. The Tribunal noted that the applicant had given evidence that her mother was [occupation] and her father had worked for the [government] which suggested that they were reasonably well educated. The applicant claimed that her father only completed class [level] and was not in a high position within the government. The applicant’s mother had only completed class [level] and worked as[occupation]. The Tribunal asked the applicant how her parents were able to afford to send her to Australia and pay for her overseas student fees. The applicant told Tribunal that she did not need that much money but her parents had used some savings and her [relative’s] property and money. The Tribunal asked the applicant how often she had contact with her parents. The applicant stated that she hadn’t spoken to her father for a long time but she spoke to her mother once a week or once every couple of weeks.
The Tribunal put to the applicant that it seemed she had a reasonably close relationship with her mother yet she had been lying to her about her activities in Australia including her relationship, her finances, study and her visa status. The applicant responded that her mother believed what she had told her.
The Tribunal noted that the applicant had earlier given oral evidence that no member of her family had married outside their caste yet in the applicant’s written statement she had cited two examples of relatives who had married lower caste women. The applicant stated that these were not immediate family members but were related to her [extended family]. The Tribunal asked the applicant how the relative who had married a lower caste woman who had [died] was related to her. The applicant responded that it was her[extended family]. The applicant confirmed that she was distantly related to the [relative]. The applicant stated that the other relative whose wife committed suicide lived further away and was related to her through [one side of the family].

The Tribunal told the applicant that it had been able to find country information about the [husband’s clan] or caste but was unable to find any reference to the [applicant’s] clan. The applicant told the Tribunal that her caste was a very small community and were not allowed to marry one another. The [applicant’s] caste usually married persons from the [name] and [name] castes. The Tribunal noted that both the applicant and her husband appeared to be from relatively high castes and asked why there would be any concern about them marrying each other. The applicant responded that both of their families regarded their own caste to be higher and the other to be lower. The Tribunal asked the applicant whether there would be any difficulty arising from the fact that she and her husband followed different religions. The applicant stated that they both believed in the same gods and there was no significant difference between them religion-wise but socially and culturally there were differences.
The Tribunal asked the applicant whether she could avoid harm by moving to Kathmandu or another urban area in Nepal. The applicant responded that Kathmandu was not far away and members of her community travelled frequently to Kathmandu.
The Tribunal asked the applicant what she thought may happen to her if she were to return to Nepal. The applicant stated that she may be physically harmed or killed by her family members. Anything could happen.
The Tribunal noted that [Mr A] had been granted a protection visa but had not mentioned in the course of his application any concerns relating to his inter-caste marriage. The Tribunal noted that [Mr A] had attended a hearing at the RRT after they had commenced a relationship and were already living together. [Mr A] was also represented in relation to that review by a registered migration agent. The applicant stated that her husband’s application was unrelated to their relationship. The Tribunal asked the applicant whether her husband would face any difficulties arising from the marriage if he were to go back to Nepal. The applicant agreed that he would. The Tribunal asked the applicant why he would not mention any concerns about the relationship in those circumstances. The applicant responded that his claims were unrelated to her own.
The Tribunal noted that the applicant had previously attempted to apply for a protection visa but her application had been found invalid owing to her failure to present to the Department to provide biodata information. The applicant told the Tribunal that she did not have access to good internet at the time and didn’t receive the email until it was too late. The Tribunal put to the applicant that she had made two previous applications for permanent visas but both were unsuccessful because the applicant had failed to keep in contact with the Department. The Tribunal commented that it seemed that if the applicant were genuinely afraid of going back to Nepal because she thought her family members may kill her she would be more careful in making sure she obtained a visa to remain in Australia. The applicant responded that she had been careless and accepted that she had made a mistake. The applicant stated that she and her husband had been suffering from financial problems, and lacked access to the internet.
The Tribunal noted that the applicant had expressed a fear in her statutory declaration that she may be harmed if it became known that she had undergone an abortion and asked the applicant to elaborate on her concerns in this regard. The applicant told the Tribunal that it was unacceptable for girls to fall pregnant before marriage in Nepal and if it were discovered that she had previously been pregnant she may be harmed. The Tribunal noted that the evidence submitted to the Department indicated that the applicant had fallen pregnant after she was married. The applicant told Tribunal that in the eyes of her family and relatives she was still unmarried and they would not accept her marriage to her husband. The Tribunal asked the applicant how anyone would discover that she had previously been pregnant. The applicant suggested that if her family tortured or assaulted her she may reveal the information. The Tribunal asked who else knew of the applicant’s pregnancy. The applicant told the Tribunal that only she and her husband knew.
The applicant told Tribunal that Nepal was a traditional, male dominated society. The applicant’s father was the [number] brother in his family, meaning that they would have to consult with his older brothers in relation to matters such as marriage. Women were kept in the house and had no freedom to go outside and have friends. The Tribunal asked the applicant whether she was saying that she held a general concern about her freedom and safety as a woman in Nepal. The applicant said that her inter-caste marriage was the main reason she feared for her safety but that women also lacked freedom generally.
The Tribunal asked the applicant why she and her husband had decided to marry at the time that they did given her family’s concerns about inter-caste marriage. The applicant stated that she was lonely in Australia and received a lot of support from him and they loved each other.
The applicant husband gave oral evidence with regard to the commencement and development of his relationship with the applicant that was broadly consistent with the applicant’s own evidence.
[Mr A] gave evidence that he had not told his family in Nepal about his marriage and relationship with the applicant because it was an inter-caste marriage, and they may scold him or talk badly about the relationship. The Tribunal asked [Mr A] whether he was afraid that his family might harm him in any other way. [Mr A] said it was hard to say what they might do and if they did do something the police wouldn’t help him. [Mr A] agreed that he had not mentioned any concerns about his relationship in relation to his own application for a protection visa but stated that his relationship with the applicant was at that time very new and he had other problems at the time.
The Tribunal asked [Mr A] whether his family knew about his marriage now. [Mr A] gave evidence that his parents had their suspicions but were not sure whether or not he was married. His parents knew about the relationship but did not know that they had registered their marriage. [Mr A] gave evidence that, in the beginning, his parents were really concerned about him being in a relationship with a woman from a different caste but they are now less concerned about the matter. [Mr A] told the Tribunal that the applicant’s family knew they were living together but also did not know about the marriage. The Tribunal asked [Mr A] what the applicant’s family’s attitude was towards the relationship. [Mr A] responded that he couldn’t say because he had not spoken to them in a long time and only had contact with them once in a while. The Tribunal asked whether the applicant had ever talked with him about her conversations with her family. [Mr A] gave evidence that the applicant had told him that her mother was anxious about the relationship and was concerned that, although he had residency, the applicant did not and she was worried about what may happen to the applicant as a result of her marriage if she were to return to Nepal. The Tribunal asked whether the applicant’s parents knew about her partner or protection visa applications. [Mr A] responded that she had not told her parents what type of visa she had applied for but they knew she had applied for a visa. As far as he knew, the applicant’s parents thought she still held a student visa and thought she was still studying. [Mr A] gave evidence that his parents had last provided him with financial support approximately 2 ½ years ago and the applicant’s parents last sent money several years ago.
The Tribunal asked [Mr A] what he thought would happen if the applicant were to return to Nepal and it became known that they were married. [Mr A] responded that anything could happen. They might kill or torture her or she may commit suicide because she cannot handle the torture anymore.
The Tribunal put to [Mr A] that his evidence suggested that his parents knew about the relationship and their attitude towards the relationship was relatively relaxed. The Tribunal asked why he thought his parents would feel that way but the applicant’s parents would kill or torture her if they knew about the relationship. [Mr A] told the Tribunal that he was previously very depressed and received a lot of support from the applicant. His parents were grateful to the applicant for taking care of him. [Mr A] said his parents would probably be very angry if they knew they were married but he wasn’t sure.
The Tribunal asked [Mr A] whether he thought the applicant could avoid harm from her family by relocating, for example, to Kathmandu. [Mr A] responded that if the applicant were to relocate to Kathmandu it would arouse suspicion in the community as to the reasons why she hadn’t returned home and this may lead to difficulties. He also suggested that the applicant could only relocate there if she had the financial means to do so.
[Mr A] gave evidence that the applicant had undergone an abortion in [year] because they did not want their parents to know about the relationship. The consequences would be very bad if this information became public. The Tribunal asked how the information would become known to anyone. [Mr A] told the Tribunal that nobody apart from he and the applicant knew of the abortion but it may become known if the applicant is subjected to torture. Their families and community would not accept the pregnancy because they did not accept the relationship.
The Tribunal asked the applicant whether she had any comment or response to the evidence given by her husband that his parents’ attitude towards the relationship had relaxed. The Tribunal pointed out that this may suggest that his parents would not be particularly concerned were they to find out that she and her husband were married. The applicant responded that her husband had been away from Nepal for eight or nine years and his parents may blame his absence from Nepal on his relationship with the applicant. The Tribunal asked whether the applicant husband’s parents would think the reason he had not gone back to Nepal was because of the trouble the family was [having]. The applicant responded that this may be one of the reasons they thought he had not returned to Nepal but they also may blame his absence on the applicant.
The Tribunal discussed with the applicant country information about inter-caste marriage in Nepal. The Tribunal explained that the information suggested that in rural parts of Nepal, inter-caste marriage was still contentious and looked down upon, however, those who entered into such marriages, generally chose to migrate to urban areas of Nepal such as Kathmandu and did not appear to have particular problems once there. A 2015 article published in the Nepali Times suggested that inter-caste marriage was becoming more acceptable in Nepalese society generally and that younger Nepalese people weren’t particularly concerned about caste and ethnicity. The Tribunal noted that most of the reports of violence directed towards persons who had entered into an inter-caste marriage involved a Dalit and a non-Dalit partner. The difficulties they experienced stemmed from general societal attitudes towards Dalit persons. The Tribunal explained that it had not seen any reports of harm directed towards partners who were both from high castes. The country information also suggested that the Nepalese government encouraged inter-caste marriage and had offered financial incentives for those entering into such arrangements. Nepalese law prohibited discrimination or harm against those of other castes. Nepalese marriage law did not prohibit inter-caste marriage. The information before the Tribunal suggested that the police were prepared to intervene in domestic matters where family members had harmed or were threatening to harm other family members who had entered into inter-caste marriages.
The Tribunal explained that the country information before it suggested that general societal attitudes towards inter-caste marriage in Nepal were not as harsh as had been suggested by the applicant’s evidence. The information also suggested that the applicant would be less likely to experience any discrimination in relation to her marriage were she to relocate to Kathmandu. The information further suggested that if a member of her family tried to harm the applicant as a consequence of her marriage, there were laws in place to protect the applicant and the police implemented those laws. This caused the Tribunal to doubt whether there was a real chance or risk of the applicant suffering serious or significant harm as a consequence of her relationship were she to return to Nepal.
The applicant responded that her situation was different to that reported in the information before the Tribunal. If she were to go back to Nepal and stay in her husband’s home, his family would not drink the water and his parents would not accept her. Although the law gave people freedom, the actual situation in the country had not changed. The police would be unable to help her if she was being tortured in her own home. If she were to return to Kathmandu, she would still face discrimination. People were being kidnapped and killed in Kathmandu. Anything could happen in Nepal because of the corruption. Her family could bribe the police. If her own family did not support her, how could the applicant believe that anyone else would support her.
[Mr A] told the Tribunal that the applicant would need a large amount of money to be able to survive in Kathmandu. He also told the Tribunal that he believed the applicant’s family would bribe the police. Even if they did not kill her, her family would subject the applicant to mental torture. [Mr A] said that the media only ever talked about the situation for davits. The Tribunal put to [Mr A] that perhaps the reason why there were no reports of violence directed towards couples who both came from higher castes was because they were less likely to have any particular problems. [Mr A] said there were lots of incidents involving the upper castes but they were not reported on because of bribery and corruption. The families were concerned about their prestige and reputations and did not want these kinds of matters to be made public.
The applicant also told the Tribunal that if she were forced to return to Nepal without her husband she would suffer mentally and may commit suicide due to the separation. The applicant also told Tribunal that she was concerned about her husband’s mental health were they to be [separated]. The Tribunal put to the applicant that presumably if she were forced to go back to Nepal she would make an offshore partner visa application to be reunited with her husband. [Mr A] told the Tribunal that they knew they could make a further partner visa application but were still concerned about where the applicant would stay and the mental torture and discrimination she would suffer whilst in Nepal.
Post-hearing correspondence
Following the Tribunal hearing, the Tribunal wrote to the applicant pursuant to s.424A of the Act, particularising information pertaining to the reasons why her previous permanent visa applications had been unsuccessful, her husband’s RRT application and evidence given by her husband at the hearing in relation to his parents’ attitude towards the relationship.
On 10 February 2016, the Tribunal received a handwritten response to the Tribunal’s letter. The applicant conceded that two previous applications for permanent visas had been unsuccessful because she had failed maintain contact with the Department. The applicant claimed she had moved to [another state] and then[another city], had changed phone numbers after a while and her email had been hacked and she could not access her emails. The applicant denied, however, having failed to provide requested biometric information to the Department in relation to her first protection visa application, stating that she did have her photograph and fingerprints taken and attended an interview.
The applicant stated that she had not been included in her husband’s protection visa application because they had only been dating for a few months at the time. [Mr A] was not sure whether he would be able to remain in Australia at the time and neither of their families knew about the relationship and so they did not consider it important to mention any claims relating to their relationship.
With regard to her husband’s evidence about his family’s attitude toward the relationship, the applicant stated that in addition to his parents, her husband has a large extended family in Nepal, some of whom live in the same household. [Mr A] was unsure what their reaction to the relationship would be. The applicant indicated that the situation would be made worse if it were discovered that her husband had tried to take his own life. There could be a big dispute between the two families and members of his extended family could harm the applicant. The applicant again expressed a fear that her husband may attempt to harm himself if the applicant were forced to return to Nepal.
Country information
The US Department of State Country Reports on Human Rights Practices for 2014 reports that a rigid caste system continued to operate throughout the Nepal, ‘especially in rural areas’ where ‘traditional beliefs’ are more prevalent. The report also states:
‘Resistance to inter-caste marriage sometimes resulted in ostracism or forced expulsion from the community, according to media reports and NGOs advocating for Dalit rights. Media reports also covered incident in which Dalits were barred from entering temples and teashops and sharing water sources, and they occasionally suffered violence in such situations, which NGOs said was decreasing but persisted.
[…]
In urban areas better education and higher levels of prosperity, especially in the Kathmandu Valley, were slowly reducing caste distinctions and increasing opportunities for lower socioeconomic groups.’[1]
[1] US Department of State 2015, Country Reports on Human Rights Practices for 2014 – Nepal, 25 June, Section 6 < <OG2B06FAF131>
The Marriage Registration Act 2028 (1971) does not prohibit inter-caste marriage.[2] Laws in Nepal also protect citizens against caste discrimination[3].
[2] Marriage Registration Act, 2028 (1971), Chapter 2 Marriage through Registration, Nepal’s Law Commission < <CIS22156>
[3] Caste Based Discrimination and Untouchability (Offence and Punishment) Act, promulgated 1 June 2011, Nepal Law Commission website < <CIS22241>
In 2009, the government of Nepal provided financial incentives to encourage inter-caste marriage with Dalits. Dawn reported that ‘Finance Minister Surendra Pandey said inter-caste marriages were still frowned upon, and he hoped that the 100,000-rupee ($1,270) payment would help such couples’:
‘Society still rejects inter-caste marriage between Dalits and non-Dalits and the initial days of couples thus married are normally tough,” he told parliament as he presented the government's new budget.
“To encourage such inter-caste marriage, the government will provide a grant of 100,000 rupees to the newly married couple within 30 days of marriage registration.”’[4]
[4] ‘Grants for inter-caste marriage in Nepal’ 2009, DAWN, 14 July < <CX5E56FED19269>
An October 2015 Nepali Times report indicates that ‘Inter-caste marriage is gradually becoming less un-acceptable and the younger generation isn’t much interested in antiquated concepts of caste and ethnicity’[5]. A The Kathmandu Post April 2015 report indicates that ‘inter-caste marriages have become more acceptable, at least in urban areas’.[6]
[5] The Great National Unreveling (GNU)’ 2015, Nepali Times, 1 October < <CXBD6A0DE14696>
[6] Pun, W 2015, ‘In search of a lone crusader’, The Kathmandu Post, 18 April < <CXBD6A0DE14706 >

Several recent reports, however, document continued discrimination and harassment directed towards inter-caste couples involving a Dalit partner.[7]
[7] See Adhikari, P 2014, ‘Inter-caste marriage displaces Dalit family’, The Kathmandu Post, 1 January < <CXBD6A0DE14689>; Sharma, S 2014, ‘Inter-caste nuptials still a taboo’, Nepal Mountain News, 19 June < <CX1B9ECAB11533>; Dalit youth’s family threatened after marriage with non-Dalit girl’ 2015, Enayapatrika, 19 August < <CXBD6A0DE14756>; Asian Human Rights Commission 2014, ‘Couple missing and entire family forcefully displaced following an inter-caste marriage’, 27 August < <CX1B9ECAB11537>
Several media reports indicate that the police intervene to protect victims of caste-based discrimination. An INSEC 12 October 2015 article reports of a man ‘arrested by Lahan Area Police Office on October 12 on charge of [sic] discriminating a women [sic] on the basis of caste’.[8] Likewise, an INSEC 4 December 2014 article reported that police arrested an individual of Bhawani ‘on charge [sic] of discriminating on the basis of caste’.[9] A Sunaulokhabar 27 August 2015 report claims that the Kathmandu District Court prosecuted an individual on the basis of ‘caste based discrimination’.[10]
[8] Pariyar, D 2015, ‘Man Arrested on Charge of Caste-based Discrimination’, INSEC, 12 October < <CXBD6A0DE14740>
[9] Thapa, Y R 2014, ‘One Arrested for Caste Discrimination’, INSEC, 4 December < <CX1B9ECAB11535>
[10] ‘Judgement in favour of Dalit: fine of 3 thousand rupees imposed to the perpetrator of caste discrimination’ 2015, Sunaulokhabar, 27 August < <CXBD6A0DE14764>
According to a Nepal Monitor 26 January 2015 report, police arrested family members for assaulting one of their family members who married a Dalit:
On 26 January, at around 5 p.m., Sangita was bringing water from a well near her house. When her mother saw her, she started shouting abuse at her, using caste-based derogatory terms. Sangita's mother proceeded to throw Sangita's bucket of water and attacked Sangita. Sangita's father, sister, and another relative joined in and attacked Sangita, beating her with a wooden sticks and firewood. Due to the severe beating, Sangita fell unconscious. However, the family did not relent. They sprinkled water, woke her up, and started hitting her again until she fell unconscious for a second time. Sangita was beaten for around 30 minutes. She has suffered numerous bruises to her forehead, her body, and her legs, and is unable to walk without support. Her left ankle has been broken due to this prolonger assault by her family.
The victim has reported the incident on 27 January 2015 at the Area Police Office (APO) Padhmapur, Chitwan, providing names of four alleged perpetrators. On the same day, under the command of Constable Ramesh Nepali, the APO arrested three of the alleged perpetrators, i.e. the parents of Sangita, Ms. Dhanamaya Lopchan (49) and Mr. Bal Lama (50), and Sangita's sister. The fourth accused, Mr. Singjong Tamang (50) appears to have absconded.
Sangita registered a case against her four alleged attackers, as per Caste based Discrimination Offence, at Madi Police Office on 27 January 2015. The Police Office took the accused to the Chitwan District Court in order to extend their custody so that the legal process could be completed.
The victim has been seeking justice for the repeated torture she has been facing. Her father, Bal Lama, has threatened to kill her even if he finds her years later. The Tamang family has been spitting whenever they see Sangita and her 2 years old daughter, and have been uttering caste based derogatory words and other verbal abuse. They have beaten up Sangita in the past as well. The Pariyar's have been living in fear.[11]
[11] ‘Family thrashes woman for marrying a Dalit’ 2015, Jagaran Media Center, 26 January < <CXBD6A0DE14768>
Findings
The Tribunal accepts that the applicant is married to [Mr A]. Although the Tribunal was unable to find any independent information pertaining to the applicant’s claimed caste or clan, the Tribunal accepts for the purposes of this application that the applicant and her husband are members of different castes or clans within the [ethnic] group and there is some disagreement as to which caste or clan is of higher status. The Tribunal is not satisfied, however, that truthful evidence has been presented as to the applicant's and her husband’s families’ knowledge of, or attitude toward, the relationship.
The Tribunal has reached this conclusion for several reasons. Firstly, the applicant’s conduct in her dealings with the Department of Immigration in relation to her two prior applications for permanent visas does not appear consistent with someone who fears returning to Nepal. The Tribunal accepts that the reason why the applicant failed to respond to the Department’s requests for information was because she changed address and telephone number and lost access to her emails. This does not explain, however, why the applicant did not take steps to notify the Department of her new contact details. The applicant has described her own conduct in this regard as ‘careless’. The Tribunal has great difficulty reconciling such carelessness with the applicant’s expressed fear of being tortured, killed or compelled to suicide should she be required to return to Nepal.
The Tribunal also found aspects of the applicant’s evidence to be inconsistent or implausible. In her statutory declaration, the applicant described two incidents of inter-caste marriage and one inter-caste relationship within her extended family and described the mistreatment of those involved. Yet at the commencement of the hearing, the applicant stated that no member of her family had entered into an inter-caste marriage and described only the relationship between a [relative] and a lower caste man referred to in her statutory declaration. When the Tribunal put to the applicant that she had mentioned two inter-caste marriages in her statutory declaration, the applicant said that those persons were only distantly related to [her].
Similarly, the applicant’s statutory declaration suggested that her mother had known about her marriage for four years, yet at the Tribunal hearing, the applicant claimed that her mother knew about her relationship but not her marriage. The applicant’s explanation for why she was prepared to tell her mother that she was in a long-term relationship with a person of a different caste but not tell her that they were married, in the Tribunal’s assessment, lacked credibility.
The applicant’s evidence at hearing initially indicated that only a cousin and her mother knew about the relationship. Only when the Tribunal put to the applicant that her statutory declaration indicated that many of her relatives in Nepal had known about the relationship from Facebook posts showing photographs of the applicant and her husband together did the applicant agree this was the case. The applicant’s claim that she had posted the photographs on Facebook not realising the potential consequences lacked credibility in the context of her other evidence as to the past mistreatment of her relatives who had entered into inter-caste relationships.
The applicant’s claims that her parents were unaware of her partner visa application or her general circumstances in Australia also lacked plausibility. On the one hand, the applicant’s evidence indicated that she had a relatively close relationship with her mother and communicated with her on a regular basis. The applicant told the Tribunal that her mother knew of her relationship. Consistent with this evidence, when asked what he knew of the applicant’s family’s attitude towards the relationship, [Mr A] indicated that he understood from the applicant that her mother was worried that he had permanent residence in Australia but the applicant did not. In this context, the applicant’s claims that her parents had no knowledge of her partner visa application (despite having given her money around the time of her MRT application); and thought she was able to remain in Australia because she was still studying [Course A some nine years after she first arrived in Australia to do so; and thought she was earning sufficient money to support herself financially as well as pay her course fees (despite her parents having paid her course fees up until the time she completed her qualification), are difficult to believe. The applicant’s suggestion that her parents believed her stories about her circumstances in Australia because they lacked education, was inconsistent with her evidence that they were both previously employed as public servants and able to pay for her to study abroad (albeit with some assistance from her [relative]).
The applicant’s evidence as to her relatives’ and community’s potentially violent reaction were it become known she was married to [Mr A], is not directly supported by the country information before the Tribunal. Although the Tribunal accepts that the applicant is from a village in the Kathmandu Valley, and the reports before the Tribunal suggest that attitudes towards inter-caste marriage in rural areas are more conservative, the Tribunal was unable to find any reports of violence being directed towards couples who are both from higher castes. Rather, all such reports related to marriages involving a Dalit (untouchable) and non-Dalit partner. The evidence before the Tribunal as to [Mr A]’s parents’ more relaxed attitude towards to the relationship is, on the other hand, broadly consistent with the general country information. The applicant’s claims in this regard are also difficult to reconcile with her evidence at hearing that her own caste or clan is relatively small and generally marries from other castes. The applicant’s and her husband’s family were unable to agree whose caste was higher, suggesting both castes are of relatively high status. The Tribunal notes that the applicant denied that the difference in her and her husband’s religions was problematic.
The Tribunal has also noted that [Mr A] made no claim relating to his inter-caste relationship when his own protection visa application was being considered by the RRT. However, as the relationship was still relatively new at the time, the Tribunal has decided to place relatively little weight upon this circumstance.
The applicant has, in her response to the Tribunal’s s.424A letter suggested that the risk of harm to her in Nepal would be exacerbated if it became known to his extended family that her husband had[health condition]. The Tribunal finds this claim to be inconsistent with the evidence given at hearing that [Mr A]’s family was grateful to the applicant for the support she provided to [Mr A] during this period.
The cumulative effect of the anomalies in the evidence is that the Tribunal remains unsatisfied that the applicant’s parents and relatives in Nepal do not know about either her marriage or relationship with [Mr A]. The Tribunal is not satisfied that the applicant’s uncles have threatened to harm her if they found out that she was having an affair. The Tribunal is not satisfied that there is a real chance or risk that the applicant would be pressured to marry anyone else. The Tribunal is not satisfied that there is a real chance or risk that the applicant (or any member of her family) would be physically harmed, killed, or subjected to any other form of serious or significant physical or mental harm, as a result of her relationship, by members of her own family, members of [Mr A]’s family or members of her broader community, were she to return to Nepal.
The Tribunal is prepared to accept, on the basis of the country information and the applicant’s evidence, that the applicant’s family may not necessarily approve of, or may be disappointed by, the applicant’s choice of partner, given that he is of a different caste. The Tribunal also considers it a possibility that the applicant’s relationship with [Mr A] could have a negative impact upon her family relationships and could lead to some familial rejection or ostracism. These are, however, purely personal or private matters and not matters which are appropriately categorised as persecution[12]. Nor does the Tribunal accept that such treatment involves significant harm as defined.
[12] MMM v MIMA (1998) 90 FCR 324 at 327
Even if the Tribunal were wrong in its assessment and there were a real chance or risk of the applicant being seriously or significantly harmed by her family, her husband’s family or her local community were she to return home, the Tribunal is not satisfied that the applicant would be owed protection obligations as a refugee or on complementary protection grounds.
First, the Tribunal is not satisfied that there would be any failure on the part of the Nepalese state to provide adequate and effective protection to the applicant. The country information indicates that the Nepalese law allows for inter-caste marriage; discrimination on the basis of caste is prohibited by law; and government policy actively encourages inter-caste marriage by providing financial incentives to couples who enter such marriages. The media reports before the Tribunal also indicate that the Nepalese police and judiciary are willing to and in fact do intervene in cases of family violence directed towards inter-caste couples. The suggestions that the applicant’s parents would bribe the police or that they would not act owing to corruption, are not supported by the country information before the Tribunal. In these circumstances, the Tribunal is not satisfied that the applicant would have a well-founded fear of persecution for the purposes of s.36(2)(a). For the purposes of s.36(2)(aa), the Tribunal is satisfied that the applicant could obtain, from the Nepalese authorities protection such that there would not be a real risk that the applicant would suffer significant harm: s.36(2B)(b).
Second, the country information referred to above indicates that inter-caste marriage, even between Dalits and non-Dalits is more acceptable in urban areas of Nepal such as Kathmandu. Several reports before the Tribunal indicate that couples comprising Dalit and non-Dalit partners from rural areas migrate without apparent difficulty to Kathmandu to avoid potential harm from their families. Although the applicant has claimed that her family’s village is relatively close to Kathmandu and members of her community frequently travel there, Kathmandu is a city with a population of around 1 million people. The Tribunal is satisfied that were the applicant to relocate to Kathmandu, objectively, there would be no appreciable risk of her being harmed by her family, her husband’s family or members of her local community. The Tribunal is also satisfied that it would be reasonable for the applicant to relocate to Kathmandu on the basis that she has shown resilience and adaptability in relocating to Australia, has a tertiary qualification from Australia and Australian work experience. On this basis, for the purposes of s.36(2)(a), the Tribunal is not satisfied that any fear of harm in Nepal would be well-founded. Similarly, for the purposes of s.36(2)(aa), the Tribunal finds it would be reasonable for the applicant to relocate to Kathmandu and that in Kathmandu there would not be a real risk that the applicant would suffer significant harm: s.36(2B)(a).
The Tribunal has also considered the applicant’s claim that she may be harmed if it became known that she had undergone an abortion. The Tribunal finds on the evidence that the applicant became pregnant and underwent an abortion at a time when she was already married. The Tribunal is not satisfied that the applicant would be viewed as unmarried by her family. In view of the findings above and the applicant’s claim that only she and her husband know about the abortion, the Tribunal is also not satisfied that there is a real chance or risk that the fact of the applicant’s abortion would become known in Nepal. In particular, the Tribunal does not accept that there is a real chance or risk that the applicant would be tortured or assaulted and reveal the information in that way. For these reasons, the Tribunal is not satisfied that the circumstance of the applicant’s abortion would lead to a real chance or risk of her being harmed in Nepal.
The Tribunal has also considered the claim, arising on the evidence that the applicant fears harm in Nepal on the basis of her gender. The applicant told Tribunal that Nepal was a traditional, male dominated society. The applicant claimed that women were kept in the house and had no freedom to go outside and have friends. This claim is inconsistent with the applicant’s evidence that her mother was employed as [occupation] and that her parents paid for her to pursue a tertiary education abroad. In the circumstances and on the evidence before the Tribunal, the Tribunal is not satisfied that there is a real chance or risk that the applicant would be denied basic freedoms or otherwise mistreated on the basis of her gender in a way that would amount to serious or significant harm.
The applicant also told the Tribunal that if she were forced to return to Nepal without her husband she would suffer mentally and either he or she may commit suicide due to the separation. As put to the applicant at hearing, the Tribunal is satisfied that were the applicant to return to Nepal, she would make an offshore Partner visa application to reunite with [Mr A]. As such, any separation is likely to be temporary. In view of the findings above, and this circumstance, the Tribunal is not satisfied that there is a real chance or the risk of the applicant suffering mental harm amounting to serious or significant harm owing to any separation from her husband.
Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The applicant does not satisfy the criterion set out in s.36(2)(a).
The Tribunal further finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that she will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Rachel Homan
Member

[2016] AATA 3688

31 March 2016

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction