1417635 (Refugee)

[2016] AATA 3376

1417635 (Refugee) [2016] AATA 3376 (18 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417635

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Rachel Homan

DATE:18 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 18 February 2016 at 12:30pm

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] June 2014 and the delegate refused to grant the visa [in] September 2014.

3. The applicant appeared before the Tribunal on 29 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 in Nepal for one or more of the five reasons set out in the Refugees Convention; and whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk the applicant will suffer significant harm.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. 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’).

10. 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

11. According to information provided in his visa application form, the visa applicant is a [age]-year-old Nepalese national born in [Gorkha], Nepal. The applicant declared that he had completed [number] years of education in Gorkha. The applicant identified his occupation or profession before coming to Australia as[occupation]. The applicant provided details of his wife and [child] still residing in Nepal. The applicant’s parents [and siblings] also continued to reside in Nepal. The applicant claimed to belong to the [name] ethnic group and Christian religion.

12. Submitted with the visa application was a copy of the applicant’s Nepalese passport, which was issued to him in [2008] in Gorkha. The applicant’s passport contains an Australian student visa issued to him [in] March 2009 valid until [September] 2011, a tourist visa for [Country 1] and exit/entry stamps for travel to Nepal in 2010.

13. The applicant claimed that due to political unrest it became difficult and unsafe for him to continue to attend school, so he left in Year[grade]. The applicant was a follower of the Rastriya Prajatantra Party (RPP) and was influenced by his father’s political activities. The applicant’s party leader, Jag Bahadur Gurung, was shot dead in his village by the Maoists, who accused him of supporting the King. After this incident, the Maoists became more powerful and started to target other members and followers of the RPP, including the applicant. The applicant’s life was threatened and he ran away with his family to Chitwan. The applicant’s parents, wife and son still reside in Chitwan. The applicant’s property was captured by the Maoists in his village and it was unsafe for him to live anywhere in Nepal because of the Maoists. The applicant claimed to have travelled to Australia in April 2009 to escape harm. The applicant claimed to fear harm from the Maoists in his village because he had gone against them and was a supporter of the King. The applicant claimed he would not be protected by the police in Nepal.

14. Contained on the Department’s file is an earlier protection visa application made by the applicant in November 2013, which was later withdrawn. The Tribunal notes that in that application form, the applicant claimed that prior to his arrival in Australia, he resided in [Kathmandu] between August 2006 and April 2009. Prior to that, he was residing in [Chitwan] for two years. The Tribunal also notes that in that application the applicant gave his religion as Hindu and did not give a marital status or identify any family members.

    Protection visa interview

15. The applicant attended an interview with an officer of the Department of Immigration ^[in] September 2014 and the Tribunal has listened to a recording of that interview.

16. At the interview, the applicant gave evidence that he returned to Nepal in 2010 due to his brother’s death. The applicant transited through [Country 1] on his way to Nepal.

17. The applicant gave evidence that he was married and had one [child]. The applicant stated that he had a marriage certificate and birth certificate for his [child] in Nepal but did not have them in Australia. The applicant stated that he maintained contact with his wife and [child] by telephone and Internet.

18. The applicant was asked how he obtained a student visa as the spouse of a different person. The applicant stated that he had engaged the services of an agent to obtain the student visa.

19. The applicant stated that his parents were presently residing in Chitwan in the same location as his wife and [child]. The applicant stated that he had [siblings] but his brother had passed away as a result of being beaten by members of the YCL in Chitwan during the election in 2008. He died of his injuries two years later in 2010.

20. The applicant gave evidence that his family left the Gorkha district in 2056 (1999). The applicant stated that he had resided in Kathmandu for two or three months whilst arranging his visit to travel to Australia. The applicant told the officer that he had been employed as the conductor or helper on a passenger bus in Chitwan.

21. The applicant gave evidence that his father was a member of the RPP but was no longer politically active. The applicant told the officer that he was also an ordinary member of the RPP. During elections, the applicant to publicity events. The applicant was asked whether he had personally been threatened whilst in Nepal. The applicant stated that after his brother passed away, he had been warned not to talk about what happened. The applicant gave evidence that his brother passed away [in] October 2010 and he arrived in Nepal for the funeral rituals [in] October 2010 and remained for nearly 55 days. The applicant stated that he was told not to talk about his brother or he would be killed.

22. The applicant was asked why he did not apply for a protection visa when he returned to Australia in late 2010. The applicant indicated that he was not aware of his ability to apply for a protection visa. Later, he met an agent who advised him to apply for a child visa.

23. The applicant gave evidence that the RPP supported the monarchy and his father was [an official]. The applicant stated that the last elections he was present for in Nepal were held in 2008 and that elections were also held in 2013. The applicant demonstrated familiarity with the outcome of the most recent elections.

    Review application

24. At the time he applied for review, the applicant submitted to the Tribunal a copy of the delegate’s decision to refuse to grant him a protection visa. Information contained in the decision record indicates that the applicant arrived in Australia in [April] 2009 and departed [in] October 2010. The applicant returned to Australia in December 2010 and in August 2011 applied for a child visa which was refused. The applicant sought review of the decision to refuse to grant him a child visa by the Migration Review Tribunal (MRT) which affirmed the primary decision. The applicant sought judicial review of the MRT decision but later withdrew his application. The applicant applied for a protection visa in November 2013 but withdrew that application in June 2014.

25. The delegate’s decision also indicates that the applicant arrived in Australia as the holder of a student visa granted to him as the spouse of a student. In his child visa application in 2011, the applicant claimed to have parents [and 5 siblings].

    Tribunal hearing

26. At the Tribunal hearing, the applicant confirmed that he was born in Gorkha and later moved to Chitwan. The applicant was unsure of the year in which he moved to Chitwan but estimated that it was in approximately 1998. The applicant denied having ever lived in Kathmandu but stated that he did travel to Kathmandu on a couple of occasions to arrange his visa to travel to Australia.

27. The Tribunal noted that the protection visa application lodged in November 2013 contained different information regarding the applicant’s residential addresses in Nepal. In particular, it suggested that the applicant had lived in Chitwan from 2004 until 2006 and then resided in Kathmandu from 2006 until 2009. The applicant stated that the 2013 application was prepared by an agent who just took his money and documents and said he would lodge everything.

28. The applicant stated that he was married with one [child]. The applicant told the Tribunal that his wife, [child] and parents had moved back to their village in Gorkha approximately one year ago. The applicant stated that they moved back to Gorkha from Chitwan for financial reasons. The applicant’s [sibling] continues to reside in Chitwan.

29. The Tribunal noted that the applicant had provided different information about his family composition to the Department at different times. The applicant had travelled to Australia as the holder of a student visa in which he claimed to be married to a different person. In his child visa application in 2011, the applicant claimed to have [5 siblings]. The Tribunal put to the applicant that because he had provided different information to the Department at different times about his family, the Tribunal had some concern about whether the information he was now providing was truthful. The applicant stated that his previous applications had been prepared by migration agents. Due to language difficulties and the fact that he never had a face-to-face hearing with the agent who prepared his child visa application, the application may have contained errors.

30. The applicant told the Tribunal that he followed the Christian religion and had developed an interest in Christianity and commenced attending church whilst in Nepal. The Tribunal noted that in the applicant’s 2013 protection visa application his religion had been given as Hindu. The applicant stated that he really did not know what had been put in the paperwork for that application. He just handed over the money and documents.

31. The Tribunal asked the applicant why he left Nepal. The applicant told the Tribunal that his father and brothers and cousins were involved with the RPP. A leader in the village was killed and for security reasons they moved to Chitwan. The Tribunal noted that the applicant had claimed that he moved to Chitwan some 10 years prior to his departure for Australia and asked why the applicant had decided to leave Nepal in 2009. The applicant stated that after moving to Chitwan, the applicant’s brother continued to be involved in the RPP. The applicant’s brother was injured whilst engaging in political activities and two years later died. After his brother’s death, the applicant received threats and decided he had to leave.

32. The Tribunal asked the applicant for more details about the circumstances of his brother’s death. The applicant stated that he was attending a political program at which time he was injured. He later suffered a lot and eventually lost his life. The Tribunal again asked the applicant for more detail about where his brother was, who had attacked him and the nature of his injuries. The applicant stated that he was attacked by Maoists while attending a political program at the time of the elections. The Tribunal asked where the program was being held. The applicant responded that it was in Chitwan. Asked where specifically in Chitwan, the applicant stated that he was at a political meeting during the elections at a school campus. Members of another political group came and attacked him. Other people were also injured.

33. The Tribunal asked the applicant about his brother’s injuries. The applicant stated that he was hit in his [leg] and could not move his leg. The Tribunal asked the applicant how the injury to his brother’s leg had led to his death two years later. The applicant stated that later he took medication and was able to move his leg again but the problem returned. The applicant’s brother suffered a lot and lost his life. The Tribunal asked the applicant what the cause of his brother’s death had been. The applicant stated that he did not have any other sickness but after the injuries he always became sick and lost his life. The Tribunal noted that it was having difficulty understanding the connection between the injury to the applicant’s brother’s leg and his death two years later. The applicant stated that after the injury to his leg, the applicant’s brother was sick all the time. Previously he had been physically sound but later he was sick all of the time.

34. The Tribunal asked the applicant about his brother’s involvement in the RPP. The applicant told the Tribunal that both his father and brother were members of the RPP. Asked whether they held any particular position within the party, the applicant told Tribunal that his father was president of a ward in the Village Development Committee. The applicant stated that he was also a member of the RPP and used to help his brother. After the applicant’s brother became sick, the applicant’s role increased and he would meet with leaders. The Maoists suspected that the applicant was a member of the party and began to target him.

35. The Tribunal asked the applicant whether any member of his family had been harmed or threatened whilst living in their village in Gorkha. The applicant stated that they were threatened that they would be killed or harmed, which was why they moved away from the village. The Tribunal asked the applicant whether, apart from the incident involving his brother at the time of the election, any member of his family had been threatened or harmed in Chitwan. The applicant stated that nothing else happened until his brother lost his life. There was some talk that the applicant’s family would sue the Maoists as a result of the applicant’s brother’s death. Once they heard the rumours, the Maoists began to make threats. No court case was ever lodged.

36. The Tribunal asked the applicant about the timing of his brother’s death. The applicant stated that he was still living in Nepal when his brother died. The applicant estimated that his brother had died in the summer of 2062 (2006). The Tribunal noted that the applicant had given evidence to the Department at his protection visa interview that his brother passed away in 2010 (2067). The applicant stated that 2010 he had gone back to the funeral of his cousin, not his brother.

37. The Tribunal asked the applicant why, if his brother had passed away in 2006, he did not leave Nepal until 2009. The applicant stated that his parents were really old and after his brother passed away, the applicant had to look after his parents. The applicant struggled financially and barely survived and so he decided to leave Nepal. The Tribunal asked the applicant whether his reasons for departing Nepal were mostly economic. The applicant stated that he was also receiving threats after his brother died. As he also had financial problems, he decided to leave.

38. The Tribunal asked the applicant more about the threats he received after his brother’s death. The applicant told Tribunal that he had gone along with his brother after he had joined the RPP. The Maoists pressured the applicant and his brother to join their party. The applicant used to work on a bus. Once a month, the Maoists would come and threaten him and always threatened his father. After his brother’s death, the applicant had a lot of problems and decided to come to Australia.

39. The Tribunal put to the applicant that his evidence about the timing of his brother’s death appeared contradictory. The Tribunal noted that the applicant had given evidence that his brother was injured around the time of elections and then died in 2006 (2062) before the applicant left Nepal. Country information indicated that the elections were held in 2008 (2064). If the applicant’s brother had died two years later that would make it 2010 or the same year in which he returned to Nepal. The applicant stated that he could not recall the exact year in which the applicant’s brother died and said it may have been 2064. The applicant repeated that the relative who died in 2010 was his cousin. The Tribunal put to the applicant that the evidence did not appear to make sense, which left the Tribunal wondering whether the applicant’s evidence had been truthful. The applicant stated that his brother definitely died before he left to come to Australia and he may have been confused about the dates because it had been a long time.

40. The applicant told the Tribunal that he and his wife were Christian but his father and brother were Hindu. The applicant told Tribunal that after moving to Chitwan he and his wife started attending church and he had also attended church in Australia. The Tribunal put to the applicant that it was unusual that as a Christian, he would support a Hindu party whose main ideology was to promote a Hindu state and reject secularism. The applicant stated that his brother and father were Hindu. The applicant stated that he hadn’t mentioned to his parents or other people in the party that he had been attending church. The Tribunal asked the applicant whether he felt his interest in Christianity was consistent with his political beliefs. The applicant stated that he had joined the party because of his father and brother and only later on started to go to church. The applicant did not let anyone know he was attending church.

1. The Tribunal asked the applicant to talk about the RPP’s ideology and policies. The applicant stated that they believed in a monarchy. The applicant identified the current leader as Kamal Thapa. The applicant stated that there were two factions of the RPP and he supported Kamal Thapa’s RPP. The Tribunal asked how Kamal Thapa’s faction was different to the other RPP faction. The applicant stated that Thapa’s RPP believed in a monarchy whereas the other faction was more mainstream. The applicant told the Tribunal that he continued to support the RPP. The Tribunal put to the applicant that it was having difficulty understanding why he would support a monarchist party that wanted to promote a Hindu state if he was a Christian. The applicant stated that at the time he was in Nepal he had not disclosed his interest in Christianity. Nepal is now a secular state and people could openly state their religious beliefs. The applicant’s family had previously supported the RPP and had continued to align themselves with that party.

2. The Tribunal asked the applicant what harm he feared if he were to return to Nepal. The applicant stated that his village was a small place and everyone knew which party everyone else was aligned to. Everyone knew the applicant belonged to the RPP and he was scared for that reason. The Tribunal asked the applicant whether his father had experienced any difficulties since returning to Gorkha. The applicant stated that his father was quite old and had been living in a tent since the 2015 earthquake. There was a lot of hardship in the village as it had been the epicentre of the earthquake. There was a scarcity of food and medicine and people were not directly involved in politics at the moment.

3. The Tribunal noted that the applicant had now been absent from Nepal for almost 7 years and asked why he considered that he would have any particular problems now if he were to return. The applicant stated that when his family moved to Chitwan they were only renting a house. All of their property was in the village. The applicant’s father had been able to work at the time and the applicant had been able to send some money to his family after he arrived in Australia. The applicant had now lost his work rights in Australia and his family had thought they would be better off financially if they moved back to Gorkha. The Tribunal put to the applicant that it sounded as though his main reasons for not wanting to return to Nepal were financial. The applicant disagreed and stated that he owned some land in Nepal which he could cultivate to support his family. The Tribunal put to the applicant that it was having trouble understanding how there was a real risk or chance of the applicant suffering serious or significant harm from the Maoists or anyone else if he were to return to Nepal now. The applicant explained that there were still political problems in his village associated with the distribution of funds from the earthquake relief fund. Funds were not being distributed equally and lots of political parties were involved. Several Maoist parties were operating in the village and had formed syndicates to distribute the relief fund. The applicant did not believe that he would not be harmed by one of the Maoist groups.

4. The Tribunal asked the applicant what kind of harm he feared. The applicant stated that there are many political parties and they don’t want to let their rival parties grow. Each party wants to be the leader in the village and they are threatening one another. If the applicant did not follow the Maoist party they would threaten him. The Maoists targeted his family in the past because his father had been [an official]. In the past, the applicant had not been able to complete his school because of threats. The Tribunal noted that the applicant’s father was now back in the village and did not appear to be having any political problems. The applicant responded that his father was pretty old and no longer active in the RPP, whereas the applicant is younger and could become a target. The applicant had nothing in Chitwan to go back to and so he would feel compelled to back to his village. The Tribunal asked the applicant whether he would be politically active if he returned to his home village. The applicant stated that he would be active in the RPP. The Maoists weren’t interested in his father because he was old but the applicant was young and would be targeted.

5. The applicant told Tribunal that during his return visit to Nepal in 2010 he had stayed in Chitwan. The Tribunal asked the applicant whether he held any fears for his safety whilst in Nepal at the time. The applicant told the Tribunal that he had not told anyone that he was going back to Nepal and just attended the funeral. The Tribunal put to the applicant that his return to Nepal in 2010 suggested he may not have held any particular concerns for his safety at that time. The applicant told the Tribunal that he was obliged to follow the family rituals. He participated in the rituals secretly and then returned to Australia.

6. The Tribunal asked the applicant why he had delayed in applying for a protection visa and in particular why, in 2011, he had applied for a child visa rather than a protection visa. The applicant told the Tribunal that he did not know about protection visas until later when he was told about them by a friend. The applicant then saw an agent who took a lot of money from him. The Tribunal asked the applicant whether he had an agent assist him with his 2011 child visa application. The applicant stated that he did have an agent in Melbourne at that time. The Tribunal asked the applicant whether he had told his agent about his situation in Nepal. The applicant told the Tribunal that his friend had introduced him to the agent, he was living in [a Queensland city] at the time and he was unable to communicate with the agent personally due to language barriers.

7. The Tribunal asked the applicant whether there was any reason why he would be unable to live in Kathmandu should he be forced to return to Nepal. The applicant responded that he could not hide himself in Kathmandu. The villagers may find out that he is in Kathmandu. The applicant would also continue to follow the RPP in Kathmandu. If the applicant went back to Nepal he would want to be with his family. The Tribunal asked the applicant whether his family could join him in Kathmandu. The applicant responded that he would be unable to get a job in Kathmandu as he had only completed his education to Year Nine. The applicant claimed he would not be able to support his family financially if he were to live in Kathmandu. The Tribunal asked the applicant what kind of employment the applicant had undertaken in Australia. The applicant told Tribunal that initially he had worked [at a job] but had more recently lost his work rights.

8. The Tribunal discussed with the applicant general country information about the political situation in Nepal. The Tribunal indicated that although the country information indicated that there was an increase in political violence around the time of the 2013 elections, no recent reports had been found of violent acts by Maoists directed towards conservative pro-monarchist parties. The applicant responded that these matters were not reported in the media.

   Findings

9. The applicant’s credibility is severely undermined by contradictions in his evidence, the vagueness and lack of detail surrounding some of his claims, his delay in leaving Nepal and applying for protection in Australia and his history of dealings with the Department of Immigration.

10. In the course of his dealings with the Department of Immigration over time, the applicant has provided contradictory information about his personal details and family composition. The applicant arrived in Australia as the holder of a student visa granted to him on the basis of a marriage which the applicant now admits was contrived for the purposes of obtaining the visa. In his child visa application, the applicant provided a different family composition to that provided in the present protection visa application. The applicant has attributed the contradictions in the information provided in his onshore visa applications to communication difficulties and errors made by the migration agents who assisted him with those applications. The Tribunal accepts it is possible that these factors could at least partly account for the contradictions. However, the Tribunal remains concerned at the apparent indifference the applicant has shown towards ensuring that the information provided with his visa applications was not false or misleading.

11. The applicant’s evidence as to the events leading to his departure from Nepal was similarly opaque. The applicant has claimed to fear harm from the Maoists in his village or other parts of Nepal owing to his and his family’s affiliation with the RPP. Whilst the applicant’s evidence demonstrated some familiarity with Nepalese politics, the Tribunal finds there is an inherent tension between the applicant’s claim to have converted to Christianity in Nepal and his claimed allegiance to a party whose agenda includes the establishment of a Hindu state.

12. The applicant’s evidence with regard to the timing and cause of his brother’s death was inconsistent. At the protection interview, the applicant gave evidence that he returned to Nepal in 2010 due to his brother’s death. The applicant had claimed that his brother passed away as a result of injuries he sustained after being beaten by members of the YCL during the 2008 election. However, at the Tribunal hearing, the applicant claimed that he had returned to Nepal in 2010 to attend a cousin’s funeral and that his brother had died prior to the applicant’s departure from Nepal in 2009. The applicant repeated his claim that his brother had been injured whilst engaging in political activities during an election period two years prior to his death. The applicant estimated that the beating occurred in 2006. Yet as put to the applicant at hearing, this claim is inconsistent with country information relating to the timing of elections in Nepal.

13. Despite repeated requests for more detail, the applicant’s evidence regarding the circumstances in which his brother was injured, remained vague and lacking in significant detail. Whilst the applicant suggested that his brother’s death was attributable to the injuries he received in a politically motivated attack, he was unable to explain in a meaningful way how the injury to his brother’s leg resulted in his death two years later.

14. The applicant’s evidence at hearing suggested that he and his family only began to have difficulties with Maoists in Chitwan following his brother’s death and talk of his family suing them in relation to his death. Yet the applicant, on his evidence at hearing, remained in Chitwan for some three years after his brother’s death without attempting to relocate to another part of Nepal or leaving the country entirely. The applicant’s evidence at hearing suggested that the applicant’s reasons for departing Nepal in 2009 were at least partly financially motivated. These circumstances cast doubt over whether the applicant and his father were genuinely subjected to threats from the Maoists in Chitwan, or if the threats were made, whether they caused the applicant to genuinely fear for his safety or well-being.

15. Although the applicant has claimed that his family originally left their village in Gorkha and moved to Chitwan owing to fears of politically motivated violence, the applicant claimed at the Tribunal hearing that his family had now returned to the village. The applicant’s evidence also suggested that his father, whom he claimed was [an official] for the RPP, had not experienced any politically related difficulties since his return, although living conditions were poor, particularly following the 2015 earthquake.

16. The applicant’s return to Nepal in 2010, his failure to apply for a protection visa for more than five years after his arrival in Australia and his decision to apply for a child visa in the intervening period, all cast doubt over the applicant’s claim to have departed Nepal owing to a genuine fear for his safety or well-being.

17. The Tribunal has considered the applicant’s responses to these issues as put to him at the hearing. However, the combination of these circumstances continues to cause the Tribunal to have significant doubts about the genuineness of the applicant’s claims generally. Having considered all of the evidence, the Tribunal remains unsatisfied that the applicant or any member of his family was, or is, genuinely affiliated with the RPP. The Tribunal is not satisfied that the applicant and his family left their village in Gorkha for political as opposed to economic reasons. The Tribunal is not satisfied that the applicant’s brother died of injuries sustained in a politically motivated attack occurring during an election period. The Tribunal is not satisfied that the applicant or his family received threats from Maoists following his brother’s death. The Tribunal is not satisfied that the applicant would have any interest in becoming politically active were he to return to Nepal. The Tribunal is not satisfied that there is a real chance or risk that the applicant would suffer serious or significant harm in either Chitwan or Gorkha now, or in the reasonably foreseeable future, due to any perceived or actual political affiliation.

18. The applicant has claimed generally that there are political tensions and competition for funds in his village in Gorkha. The applicant’s evidence also suggested there may be some pressure on the applicant to join or support the Maoists in his village, in part owing to his relatively young age. As discussed with the applicant at hearing, the Tribunal has been unable to locate any reports of violence perpetrated by Maoists or others against conservative pro-monarchy supporters from 2011 to date. In 2012, the UCPN-M was removed from the United States list of worldwide terrorist organisations.[1] According to the South Asia Terrorism Portal’s Nepal Assessment 2015, no Maoist insurgency related civilian deaths were record during 2014:

    The environment of peace that had been established in Nepal in 2013 survived, despite challenges, through 2014, with not a single insurgency-related fatality on record. Significantly, since March 2000, when the South Asia Terrorism Portal (SATP) database commenced compiling data on insurgency-related fatalities in Nepal, it was in 2013 that the Himalayan Nation did not record a single insurgency-related fatality during the course of a year, for the first time, and remained completely free of insurgency-related violence. At its peak in 2002, the insurgency saw 4,896 persons, including 3,992 Maoists, 666 Security Force (SF) personnel and 238 civilians, killed in a single year.[2]

    [1] South Asia Terrorism Portal 2013, Nepal Assessment 2013, 20 January, para.7 < Accessed 29 January 2013 CX302669

    [2] South Asia Terrorism Portal 2015, Nepal Assessment 2015, para.1 < Accessed 23 March 2015 <CIXEC96CF1246>

19. This information suggests that the political environment in Nepal has significantly stabilised since the applicant was last in Nepal. There is no credible information before the Tribunal indicating that the applicant, whom the Tribunal is not satisfied has any particular political affiliation, faces a real chance or risk of politically related harm were he to return to Nepal now or in the immediately foreseeable future.

20. The Tribunal has noted that the applicant has claimed to belong to the Christian religion. The applicant has, however, made no claims of past harm arising from his Christianity and has not claimed to fear harm on religious grounds were he to return to Nepal. The Tribunal is not satisfied that there is a real chance or risk of the applicant suffering serious or significant harm on this basis.

21. The applicant’s evidence generally suggested that his departure from Nepal and reasons for wishing to obtain permanent residence in Australia were, at least partly, economically related. The applicant has claimed that his family have suffered significant financial difficulties and endured poor living conditions, particularly since the 2015 earthquake. The Tribunal accepts that the applicant may have a strong preference to remain in Australia and may be unwilling to return to Nepal for these reasons. However, the Tribunal is not satisfied that these circumstances involve systematic and discriminatory conduct amounting to persecution for the purposes of s.36(2)(a) or intentional acts or omissions amounting to significant harm as defined for the purposes of s.36(2)(aa).

22. For the reasons given above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Nepal. 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).

23. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that there are 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 he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

24. 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

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

    Rachel Homan
    Member