1417637 (Refugee)

[2016] AATA 3017

1417637 (Refugee) [2016] AATA 3017 (11 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417637

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Bruce Henry

DATE:11 January 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 11 January 2016 at 12:05pm

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 claims to be a citizen of Nepal, applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] October 2014.

3. The applicant appeared before the Tribunal on 6 January 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   LEGAL FRAMEWORK

5. 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.

6. 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).

7. 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.

8. 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’).

9. Under the provisions of s.36(3) of the Act an applicant may be found not to be a person in respect of whom Australia has protection obligations, even if they might satisfy the applicable definition of ‘refugee’ or meet the complementary protection criterion in s.36(2)(aa), if protection is available in another country.

10. The qualification in s.36(3) provides that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification which operate, broadly, where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment: see ss.36(4) – (5A) of the Act.

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Documents on the departmental file establish that the applicant is a citizen of Nepal who was born in Kaski District of Nepal in [year]. He first arrived in Australia [in] March 2013 as an ‘illegal maritime arrival’.

13. The applicant’s claims were set out in his application and attached statutory declaration. His claims were summarised in the decision record supplied to the Tribunal by the applicant with his application:

    In his written application the applicant made the following claims:

    ·The applicant has been targeted by `Moyos Ysel', a Maoist rebel group since 2000.

    ·The `Moyos Ysel' tried to recruit the applicant into their organisation, so that the applicant could receive military training and fight against the government.

    ·The `Moyos Ysel' also wanted the applicant to give them money, coming to his house and asking for approximately 500 000 rupees, threatening to kill him if he didn't give them the money.

    ·After the initial threat in 2000 the applicant fled to India, where he lived for two years.

    ·While the applicant was in India, the `Moyos Ysel' went to his house and asked his wife where he was, and continued to ask for money.

    ·The applicant returned to Nepal in 2002, but remained in hiding, and would frequently travel to India to avoid `Moyos Ysel'.

    ·The last time the applicant left Nepal was in February 2013, at which point he decided to come to Australia.

    ·The applicant fears that if he returns to Nepal, `Moyos Ysel' will kill him and that the government will not be able to protect him.

    ·The applicant's life will not be safe anywhere in Nepal.

    No country information was found referring to any group called ‘Moyos Ysel' operating in Nepal. At interview the applicant clarified that he was targeted by the Young Communist League (YCL), the youth wing of the Unified Communist Party of Nepal (Maoist), formerly known as the Communist Party of Nepal (Maoist). For the purposes of this decision I have replaced all reference to `Moyos Ysel' with YCL, as I believe Moyos Ysel is a phonetic mistranslation of Maoist YCL. The applicant appeared to use the terms Maoist and YCL interchangeably at interview, stating that they were part of the same group. The terms Maoist and YCL have been used interchangeably in this decision record.

    At interview the applicant provided the following further information:

    ·The applicant spent the majority of his time from 2001 to 2013 in India, returning to Nepal for periods up to a week.

    ·The applicant lived in India legally, and did not need a visa.

    ·The Maoists were very active in the area where the applicant lived since Nepali year 2058.

    ·The applicant was initially approached by the Maoists in November 2000 and departed Nepal in 2001.

    ·The Maoists would approach the applicant every '7 to 10 days in the night time, when they were passing through'.

    ·There were approximately 8 to 10 people who came to ask the applicant to join the revolution

    ·The applicant never approached the police about these incidents, but was once hit and detained by the army because they thought he was a Maoist. After half an hour he was released.

    ·After the applicant fled to India, his wife was tortured by the YCL and told to call the applicant.

    ·In 2003 the Maoists shot at the applicant's wife, hitting her hair, which caused her to faint with fear. After she woke up she escaped to her family.

    ·Following this event, the Maoists continued to ask the applicant's wife for money, and to see the applicant.

    ·The last direct interaction the applicant had with the Maoists was in 2007, when they asked him for [amount] rupees. The applicant again fled to India.

    ·The applicant was last targeted by the Maoists in 2013, because he still refused to join them.

    ·The applicant cannot move to another part of Nepal as the YCL will know he is back, and for financial reasons.

    ·The applicant has not approached the Nepali authorities regarding his dealings with the YCL since 2007,

    ·The applicant first decided to come to Australia in 2008, and worked in India from 2008 to 2013 to save money to pay for the trip.

    The applicant's representative submitted a post-interview submission on 29 September 2014. This submission did not raise additional claims, and related to relocation in Nepal and a discussion of inconsistencies relating to dates and minor details within the applicant's written submission and interview.

    Evidence at the hearing

14. At the hearing the applicant told the Tribunal that his wife and [children] live in Kaski, Nepal. He has no other close relations in Nepal other than his mother. His parents separated when he was very young, and his mother left him with his [relatives] when he was [age]. He has not had any contact with his father since his parents separated. His wife and children live with his [relative].

15. The applicant said that he left Nepal and went to India in about 2000 because the Maoists wanted him to join them for training. He confirmed that, as he had told the Department, he had lived in New Delhi, India from this time until leaving for Australia in 2013 apart from a number of short visits to his family in Nepal. He said that he visited Nepal ‘about 3 or 4 times’ from 2000 to 2008, when he moved back from India to his village in Kaski. After staying with his family for ‘about 2 or 2½ months’ he returned to India, where he continued to live until he decided to come to Australia.

16. The applicant went to Nepal in 2012 to tell his family that he was going to Australia and ‘they would have to look after themselves’. He then returned to India to make his travel arrangements.

17. The applicant told the Tribunal that he had left Nepal in 2000 because of threats made by the Maoists who were seeking to force him to join them in their fight with the Nepalese government. He said that he remained in India because his family told him that the Maoists were continuing to look for him, and reiterated the claims made at his interview with the Department that his wife had been attacked and injured by the Maoists in 2003. He was able to visit the family only briefly from India because he had to avoid the Maoists.

18. The applicant told the Tribunal that the last incident involving any physical threat to his family by the Maoists was in 2007. He said that they had continued to ask his family for money since that time, but there had been no attacks. He continued to claim, however, that the Maoists are ‘still after me’.

19. The applicant told the Tribunal that he lived legally in India and was able to travel freely between India and Nepal whenever he wished to do so because As a Nepalese citizen he did not need a visa. He said that he had never experienced any problems living in India, and confirmed that all of his claims related to problems in Nepal.

20. The Tribunal asked the applicant why he had not taken his family with him to India so that they could also be safe. He said that he had entrusted their safety to his [relative], and added that his wife’s family had not wanted him to take them to India with him. The Tribunal put to him that if he had serious concerns for his family’s safety in Nepal while he was safe in India, it was difficult to understand why he would not have taken them to India with him. He said again that his wife’s family had been pressuring him not to take them to India.

21. The Tribunal put to the applicant that Australia was not required to provide him with protection if he had a right to enter and reside in India without fear of persecution in that country or of being forcibly returned to Nepal. He again stated that he does not want to go back to India.

    Country information

22. In a recent background report on Nepal the BBC stated[1]:

    [1] BBC News, Nepal Profile, 27 September 2015, accessed on 2 October 2015

    Democratic politics was introduced in 1991 after popular protests, but was marked by frequent changes of government. The last king of Nepal, Gyanendra, twice assumed executive powers - in 2002 and 2005.

    Maoist rebels waged a decade-long campaign against the monarchy, leaving more than 12,000 people dead and 100,000 people displaced according to UN figures.

    When King Gyanendra's direct rule ended under public pressure in April 2006, the rebels entered talks with the parliamentary government on how to end the civil war.

    A peace deal was agreed in November, although the Maoists continued to press for abolition of the monarchy.

    Parliament agreed to the condition in December 2007, and the Maoists emerged as the largest parliamentary party after elections in April 2008.

    The monarchy was abolished a month later, and a Maoist-dominated government took office in August.

    But political instability - sometimes violent - has plagued Nepal since the end of the civil war, not least over the degree of devolution in the federal constitution adopted in 2015.

    Nepal has been at odds with neighbouring Bhutan over the repatriation of thousands of Bhutanese refugees of Nepalese descent who fled violence in Bhutan in the early 1990s.

    Nepal has a flourishing tourism industry, but faces problems of deforestation and encroachment on animal habitats.

    Most of the population depend on agriculture, and the UN estimates that about 40% of Nepalis live in poverty.

    Foreign aid is vital to the economy, and Nepal is also heavily dependent on trade with neighbouring India.

    The devastating earthquake that hit Nepal in April 2015 left nearly 9,000 dead and scenes of widespread ruin across the country. Experts say it will take years to rebuild Nepal's fragile economy.

23. In its current assessment, the online South Asia Terrorism Portal (SATP) states[2]:

    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.

    The successful holding of elections for the second Constituent Assembly (CA) on November 19, 2013, have, in some measure, transformed the political environment of the country and diminished violent inter-party clashes. As against 22 such clashes resulting in four deaths and 167 injuries in 2013, no such clashes were reported through 2014. 

    However, intra-party conflict continues to haunt the country. The fissures within the Unified Communist Party of Nepal-Maoist (UCPN-M) brought the party almost to the brink of a break-up. Supporters of both Chairman Pushpa Kamal Dahal aka Prachanda and former Prime Minister (PM) and former Vice-Chairman Dr. Baburam Bhattarai clashed with each other on various occasions. In one such incident, on April 28, 2014, two UCPN-M cadres loyal to Dahal were seriously injured after cadres loyal to Bhattarai exchanged blows at the opening ceremony of the Rasuwa District Convention, following a heated debate over the duration of the political event. Cadres from remote areas had demanded that the convention be concluded on the day itself, arguing that they did not have enough money for overnight accommodation. Further, the Mohan Baidya aka Kiran -led faction of the Communist Party of Nepal-Maoist (CPN-Maoist-Baidya), which abandoned the UCPN-M on June 19, 2012, split further on November 24, 2014, after a splinter-group led by party secretary Netra Bikram Chand submitted a letter to the CPN-Maoist-Baidya Central Committee, announcing its intentions to separate. Subsequently, on December 1, Netra Bikram Chand formed a new party, styling itself as CPN-Maoist.

    Meanwhile, the people of Nepal returned a fractured mandate in the second CA elections of November 2013, creating enormous obstacles even to the smooth formation of a new Government, given the history of acrimonious relations between the major political parties. Nevertheless, a new Government was formed on February 9, 2014, when Nepali Congress (NC) President Sushil Koirala became Nepal's 37th Prime Minister, securing more than two-thirds of the votes in Parliament. Belying all fears of a rolling crisis, NC and Communist Party of Nepal-Unified Marxist Leninist (CPN-UML) came together, along with members of 14 other parties and one independent, to constitute a new and stable Government. NC and CPN-UML had emerged as the two leading parties in the CA, with 196 and 175 seats, respectively, in the 601-member CA. …

    Not surprisingly, Nepal is currently threatened by political turmoil. In a clear manifestation of growing political volatility in the Republic, opposition members of the CA, led by UCPN-M, vandalized Parliament and attacked ruling party leaders and security staff, leaving four security staff members injured, on January 20, 2015. Again, on January 22, 2015, opposition CA members threw microphones and shoes at the members of the ruling alliance. On this day, protests also erupted across Nepal, in which several persons were injured and a substantial quantum of property was damaged. In fact, as the deadline for the Constitutional draft approached, protests and bandhs (general strikes) became the order of the day. Significantly, during one such bandh enforced by the UCPN-M-led alliance, which turned violent in several parts of the country, a protester, identified as Rajaram Jha (25), died at Bhramarpurachok in Dhanusha District on January 12, 2015.

    [2] Nepal Assessment 2015, accessed on 7 January 2016

24. The International Crisis Group (ICG) published an alert on Nepal on 2 September 2015[3] which commences:

    Spiralling protests against a draft constitution have left 23 dead and hundreds injured in Nepal in two weeks. An over-militarised security reaction and inadequate political response from the centre threaten to fuel deep-seated ethnic, caste and regional rivalries less than a decade after the civil war’s end. The major parties should recognise the depth of discontent and the fundamental challenge this poses to the legitimacy of the proposed constitution.

    [3] Nepal: Conflict Alert, Kathmandu/Brussels, 2 September 2015, available at accessed 8 January 2015

25. The ICG report indicates that the violence is centred around the far west of Nepal, several hundred kilometres from the applicant’s home town in Kaski. The report does not indicate that the Maoists are involved in the conflict, which arises from the Madhesi and Tharu communities’ objections to the draft constitution, which is supported by both the Maoists and the governing coalition.

    Assessment of the applicant’s claims

1. The Tribunal accepts that recent country information indicates that the situation in Nepal at present is unstable, and that there is a risk of further conflict between the Government and the Maoist party. Having said that, the Tribunal notes that the country information indicates that the level of violence attributable to the Maoists has declined sharply since 2007 and that there have been no reported deaths because of the Maoists in the last two years.

2. The Tribunal has concerns about the credibility of the applicant’s claim to fear persecution at the hands of the Maoists in Nepal given his claim that he has not experienced any direct threat from the Maoists since 2007.  

3. The Tribunal also notes that the applicant’s decision to leave his family in Nepal undermines the credibility of his claims that his wife had been physically assaulted by the Maoists. As the Tribunal pointed out to him at the hearing, it is difficult to accept that he could have made this decision simply because his wife’s family wanted them to stay if the threat from the Maoists was as serious as he claimed it to be.

4. For the reasons set out below, however, the Tribunal is of the view that it is unnecessary to make findings on these matters because in the circumstances of this case it is not necessary to determine whether the applicant is a person to whom Australia owes protection obligations under s.36(2) of the Act.

5. The Tribunal has reached this conclusion because under the provisions of s.36(3) of the Act an applicant may be found not to be a person in respect of whom Australia has protection obligations, even if they satisfy the applicable definition of ‘refugee’ or the complementary protection criterion in s.36(2)(aa), if protection is available in another country.

6. The qualification in s.36(3) provides that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification which operate, broadly, where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment: see ss.36(4) – (5A) of the Act.

7. So far as the correct approach to the consideration of ss.36(2) and (3) is concerned, in SZUDE v MIBP [2015] FCA 1202 Mc Kerracher J in the Federal Court concluded, after an extensive review of the relevant authorities:

   52. This description of an automatic disqualification arose because of the deeming provision. Black CJ made the point that the effect of s 36(3) of the Act was that Australia was deemed not to have protection obligations which, in turn, had been the view expressed by Emmett J dissenting in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 144; (2003) 130 FCR 46 (at [43]). Black CJ emphasised that s 36(3) does not provide that ‘Australia does not have protection obligations’ in the circumstances outlined, but that Australia ‘is taken not to have protection obligations’ (emphasis added). His Honour described the process in NBGM (at [18]):

   An applicant for a permanent protection visa is still applying for a visa and must still satisfy the criteria for that visa. The criterion of Australia having “protection obligations” to the applicant, which is established by s 36(2), is statutorily negated in the circumstances in which s 36(3) applies. When that statutory negation takes effect, it is only undone by the operation of either s 36(4) or s 36(5). That is, the applicant will only be able to make good the criterion in s 36(2) by making out the exception in s 36(4) or s 36(5). And, as I have noted, the statutory language used in s 36(4) is narrower than the concept of “protection obligations”, which directs attention to Art 1 of the Convention. Section 36(4) does not merely direct attention to Art 1A(2); the legislature has laid down the test, as a matter of domestic law, that must be satisfied for the qualification to the qualification of s 36(2) to be made good. The circumstances to be established are presently existing circumstances, as to which the past may well illuminate the present; but the question remains in the present.

   53. Critically, the former Chief Justice observed (at [20]) that he could see no requirement for a decision-maker to be satisfied as to whether or not Australia has ‘protection obligations’ pursuant to s 36(2) before considering the qualification in s 36(3). He noted that, in an appropriate case, it may indeed be proper for a decision-maker to consider first whether or not Australia is taken not to have protection obligations to the applicant by reason of the operation of s 36(3): see NBLC per Graham J (at [48]).

   54. In my view, the analysis in SZRTC does not conflict with this process of construction, contrary to the view expressed by the primary judge and other judgments in the Federal Circuit Court. In SZRTC, the Full Court, constituted by Tracey, Flick and Griffiths JJ, held that an appellant’s ability to enter into and remain in another country for six months was a ‘right to enter and reside’ for the purpose of s 36(3) of the Act and in that case the Tribunal had erred by importing temporal considerations relating to protection obligations into s 36(3) of the Act which did not require a period of residence commensurate with a period of time during which a fear of prosecution is likely to continue. Their Honours held that if an applicant satisfies s 36(2) of the Act, it was necessary for a decision-maker to consider whether s 36(3) applies. If s 36(3) does not apply, there is no occasion to consider whether the qualifications contained in subs (4), (5) and (5A) limit its obligation.

   55. As noted, it was incidental to the consideration of those provisions that their Honours’ noted that s 36 of the Act contained a cascading series of qualifications. Subsection (3) operates as a qualification on subs (2), subs (4) to subs (5A) then operate as a qualification to subs (3).

   56. It was not central to the decision reached by their Honours in SZRTC that a decision be made in relation to s 36(2) of the Act before considering s 36(3). Their Honours were certainly emphasising that it was the correct approach to consider s 36(2) of the Act first (as occurred here) before coming to s 36(3). Of course, if no obligations arose under s 36(2) that is the end of the matter insofar as s 36(3) is concerned. In circumstances where obligations do arise under s 36(2) of the Act, it is necessary then to consider s 36(3), but, in my view, nothing in the observations by their Honours dictates that a decision must be made under s 36(2) of the Act before turning to s 36(3).

   57. The Tribunal has taken the correct approach. It has examined the factors going to s 36(2) of the Act and, while it preferred not to reach a determinative conclusion about whether or not obligations were owed under subs (2), was satisfied nevertheless that subs (3) precluded any obligations being owed. It would be wrong to ignore s 36(2) of the Act, as the issue under s 36(2) is the central issue to which s 36 is directed. But as Black CJ observed, it is difficult to see from a perspective of statutory construction why there would be no obligations by virtue of s 36(3). The Tribunal took a slightly different approach saying that it was, in effect, unnecessary to determine s 36(2) because even if obligations were owed under s 36(2), they were negated by virtue of s 36(3) of the Act. As a matter of statutory construction, it is difficult to see how the approach which commended itself to Black CJ could be erroneous. Certainly, it is not jurisdictional error, but in my view, it is no error at all to deal with s 36(3) (which is a deeming provision) on the hypothesis that s 36(2) would apply. Of course, if s 36(2) does not apply, there is no basis for consideration of s 36(3). There is some force in the Minister’s submission that it is highly improbable that Tracey and Griffiths JJ in their observations as to the correct approach in SZRTC, were expressly departing from the views expressed by Black CJ in NBGM, having just cited his Honour’s decision in that case.

8. The key passage of the decision of Black CJ in NBGM to which McKerracher J refers appears at at [20] of his judgement where the Chief Justice said:

   As a final matter of construction, I see no requirement for a decision-maker to be satisfied as to whether or not Australia has “protection obligations” pursuant to s 36(2) before considering the qualification in s 36(3). In an appropriate case, it may indeed be proper for a decision-maker to consider first whether or not Australia is taken not to have protection obligations to the applicant by reason of the operation of s 36(3) (see NBLC at [48] (Graham J)). Such an approach finds a parallel in the permissible approach to Art 1 of the Convention: NAGV and NAGW of 2002 (High Court) at [47].

9. SZUDE was also a case involving a determination by the Tribunal applying s.36(3) to a Nepalese citizen on the basis that he had the right to enter and reside in India. McKerracher J held:

   15. No appellable error has been identified on the part of the primary judge for failing to identify jurisdictional error in the Tribunal’s consideration of s 36(3) of the Act. The Tribunal applied the correct test as identified in this Court in SZRHU. It recognised the fact that the Treaty did not in terms deal specifically with the right of a Nepalese citizen to enter India, which is a point that had been made by Buchanan J in SZRHU. Consistently with the requirements of SZRHU, the Tribunal had regard to country information pertaining to the administrative arrangements at the Nepal-India border. See the discussion by the Tribunal (at [39] and [41]-[43]) (footnotes omitted):

   39.    Information provided by [DFAT] and contained on the website of India’s Bureau of Immigration is to the following relevant effect:

   A citizen of Nepal entering India by land or air does not require a passport or visa for entry in India.
   A citizen of Nepal while travelling by air between Nepal and India is required to show any of the following valid identity documents to establish his/her identity as a Nepalese citizen:

   Nepalese Passport.
   Nepalese Citizenship Certificate.
   Voter’s Identification Card issued by the Election Commission of Nepal.
   Limited Validity photo-identity certificate issued by Nepalese Missions in India when deemed necessary.

   
   A citizen of Nepal must be in possession of a Passport when entering India from a place other than Nepal.
   
   A citizen of Nepal in possession of a valid Nepalese passport flying direct from Australia could gain entry to India.

   ...

   41.     DFAT advises that unlimited stay is granted to Nepalese nationals in India and there are no restrictions on their ability to remain, reside or work in India. Other reports confirm that Nepalese citizens may reside, work, attend school and access health services in India. A BBC report from 2008 states: “Over five million Nepalese people work and own property in India.” A policy paper in 2011 estimated that some 10-12 million ‘Nepalis’ live in India. This latter figure includes both migrants from Nepal living in India and Nepali speaking Indian citizens.

   42.     It seems that there is a shifting population between the two countries and ‘free border movement between Nepal and India has led to transnational social networks, by which people sustain contacts between families in Nepal and migrants in India.’ Various sources state that here [sic] are sizeable Nepalese communities particularly in India’s north eastern states. Urban centres such as Delhi, Mumbai and Bangalore are also popular destinations for Nepalese migrants.

   43.     Taking into account the terms of the Treaty itself, the information from Indian and Australian authorities about the administrative arrangements concerning entry to India by Nepalese nationals and the country information and other commentary on the ability of Nepalese citizens to enter and reside in India, the Tribunal is satisfied that that [sic], as a matter of practical reality, the [appellant] has a right to enter and reside in India.

10. The applicant in SZUDE had never lived in India and had not himself attempted to enter that country. In this case, on his own evidence the applicant spent almost all of the period from 2000 until he came to Australia in 2013 living and working in India. His own evidence is that he lived legally in India, that he was able to travel freely between India and Nepal whenever he wished to do so, and that he would be able to return to India should he choose to do so. He also told the Tribunal that he had never experienced any problems living in India, and that all of his claims related to problems in Nepal. He simply said that he did not want to go back to India because it is not his country.

11. The Tribunal notes that the DFAT information referred to in the extract from the decision under review in SZUDE derives from a report provided by DFAT to the Department on 27 September 2013 in response to a set of questions about the treatment of Nepalese nationals seeking to enter and reside in India[4]. Further, the Tribunal notes that it has recently been reported[5] that the Indian Prime Minister Narendra Modi and his Nepalese counterpart agreed in 2015 to “review, adjust and update” the 1950 Treaty of Peace and Friendship to “better realities” and expand ties in a “forward looking manner”.

    [4] Department of Foreign Affairs and Trade, DFAT report – India: Information request IND42609, 18 September 2013; Bureau of Immigration, Ministry of Home Affairs, Government of India at accessed 11 January 2016

    [5] Observer Research Foundation, South Asia Annual Review 2015, Geetanjali Nataraj and Garima Sahdev, Delhi, 27 March 2015, p.43, available at p.43, accessed 8 January 2016

12. In these circumstances the Tribunal is satisfied that, as in SZUDE, having regard to the available information referred to above on the ability of Nepalese citizens to enter and reside in India, the applicant has a right to enter and reside in India, and that s.36(3) applies to the applicant.

13. Further, and also on the basis of the applicant’s own evidence on these matters, the Tribunal is satisfied that the applicant has no subjective fear of being persecuted in India or of refoulement from that country to a place where they face such treatment, and finds that ss.36(4) – (5A) of the Act do not apply.

14. Accordingly, the Tribunal is satisfied that the applicant is a person in respect of whom Australia is taken not to have protection obligations under the Refugees Convention.

    DECISION

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

    Bruce Henry
    Member