1418306 (Refugee)

[2016] AATA 4864

1418306 (Refugee) [2016] AATA 4864 (16 June 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418306

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Christine Cody

DATE:16 June 2016

PLACE OF DECISION:  Sydney

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

STATEMENT MADE ON 16 JUNE 2016 AT 4:47PM

CATCHWORDS
Refugee – Protection visa – Nepal – Social group – Businessman – Chettri or Brahmin caste – Political opinion – Member of Rastriya Prajatantra (RP) Party – Victim of kidnapping by Jantantrik Terai Mukti Morcha (JTMM) – Fear of harm by Maoists – Credibility Concerns – Inconsistent evidence

LEGISLATION
Migration Act 1958, ss 5, 5AAA, 36, 65, 91R, 424AA, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

SUMMARY AND BACKGROUND

1. The applicant is a Nepalese national who seeks to be granted a Protection visa under s.65 of the Migration Act 1958 (the Act) on the grounds that he is a refugee or entitled to protection under Australia’s complementary protection provisions. He applied to the Department of Immigration for the visa [in] September 2013 and the delegate refused to grant the visa [in] October 2014. This is an application for review of that decision, and the relevant law is set out in Annexure A. The applicant was not represented by a registered migration agent.

2. In accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the country information assessment prepared by DFAT expressly for protection status determination purposes was issued, DFAT Country Information Report on Nepal, 21 April 2016 (the DFAT report).

   CLAIMS AND EVIDENCE

3. The applicant produced to the Department his protection visa application forms and a statement. According to those documents, the applicant’s background is as follows:

   ·     The applicant was born in [Municipality 1], Kathmandu in [date]. He speaks, reads and writes in Nepali, Hindi and English. His religion is Hindu.

   ·     He was educated for [a number of] years until 1997. He was the proprietor of a [business] in Nepal from February 1999 until July 2009. He provided no details of any employment in Australia.

   ·     He provided a single address in [Municipality 1], Kathmandu where he resided from [year] until February 2009. As discussed below in the credibility findings, this was inconsistent with the applicant’s claims, whereby he claims to have experienced past harm when residing in Biratnagar.

   ·     He left Nepal legally, via Kathmandu airport, [in] February 2009, entering Australia [in] February 2009 using his passport issued [in] 2008.

4. According to these documents, his claims can be summarised as follows:

   ·     The applicant’s house is located in Biratnagar, in the Terai region[1] near the Indian border. He operated a business there.

   ·     The applicant had been threatened to be killed and kidnapped many times by Madhesi Mukti Morcha and the Maoist Youth Communist League (YCL) in Biratnagar.

   ·     [In] February 2002, he was kidnapped by Jantantrik Terai Mukti Morcha (JTMM), he was held for nine days. The kidnappers threatened to kill him because he supported the King and the Rastritya Prajatantra Party (RPP). They accused him of spying on them and not donating money to their party. They demanded his father pay Rs.[amount] for his release, otherwise they would kill him. His father was able to organise to pay Rs.[amount] for his release, selling their land to pay the ransom. He was released [in] February 2002 and went back to their home at Biratnagar.

   ·     Five days after the applicant’s release, he and his family moved to Kathmandu. In 2003 he opened a [business] and started a small business in Kathmandu.

   ·     [In] March 2005 the NCP Maoist and JTMM called him seeking a donation and threatening his life again. They ordered him to close down his business. The applicant closed the [business] but they still troubled him all the time with phone calls and letters. He went to the police station with the letters and the phone records and also told them about the previous kidnapping but the police said it was impossible to provide a police escort. They said they would investigate but this was not enough and he lived in fear every day and night.

   ·     He married a Nepalese girl who then told him they could go to Australia to study, and they went to [Australian City 1]. He found it difficult to earn money in [City 1], so he moved in search of work. His wife wanted a divorce.

   ·     He could not return to Nepal because he does not have the ability to fight against the Maoists and the Madhesi Mukti Morcha in Nepal and his life is at risk.

   [1] Paragraph 2.7, DFAT Report:  Nepal is divided into three natural east-west geographical zones. Along its southern border is a strip of flat, fertile land known as the Terai, an extension of the vast north Indian plain, which accommodates approximately 50 per cent of the population. The central strip comprises the Middle Hills, rising to 3,400 metres and interspersed with fertile valleys, of which the Kathmandu Valley is the largest. Approximately 43 per cent of the population lives in this area. The northern strip is formed by the Himalayas, an unbroken mountain range containing eight peaks higher than 8,000 metres, which accommodates approximately seven per cent of the population.

5. He produced some supporting documents to the Department.

   Interview and the delegate’s decision record

6. The applicant provided to the Tribunal a copy of the delegate’s decision record, which sets out some details of the applicant’s evidence at interview, country information, and the delegate’s reasons for refusing the application. The Tribunal has listened to a recording of the interview. The following relevant evidence and the delegate’s reasoning is sourced from the delegate’s decision record.

7. The applicant attended an interview [in] June 2014. He provided additional claims as follows:

   ·     His [brother] was killed by the Madhesi group in 2005 in Jhapa, Nepal.

   ·     After opening his [business], he travelled to India for security. He stayed in a hotel in an area near New Delhi. However, local Indians and people from the Madhesi Party found him and attacked him.

8. The delegate considered that many of the applicant’s claims were not credible, and was not prepared to give any real weight to the documentary evidence provided by the applicant.

   The Tribunal

9. As noted above, the applicant provided a copy of the delegate’s decision record to the Tribunal (with his application for review form). The applicant did not provide any further documentation to the Tribunal. The Tribunal had summonsed the offshore student visa application file. The applicant appeared before the Tribunal on 6 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted as a video hearing with the assistance of an interpreter in the Nepali and English languages. At hearing, dates were discussed in the Nepalese and English calendars[2]. The Tribunal explained that it was not bound to follow the findings made by the delegate and that it would make its own findings on all matters.

   [2] >

   The Tribunal asked the applicant what he feared about returning to Nepal. He wants to return to Nepal; he does not want to stay in Australia for a long time. He said that he wants to go to Nepal if Terai settles down. The Tribunal asked if that was his only concern, asking particularly whether he had any concern about any particular people or parties. In response he said he will be assassinated if he returns. The Tribunal asked who would assassinate him and why, and he said the Madhesi Mukti Morcha mistreated him, and he knows nothing about Nepal and he read the internet which said there is a conflict in Terai.  The Tribunal put to the applicant that he had claimed to have moved to Kathmandu with his family in 2002, and that he has [houses] there. The Tribunal said, in the circumstances, if he returned to Kathmandu where he has his family and [houses], it did not understand why he was concerned about conflict in Terai. He said, vaguely, words to the following effect: “what can I say, how can I say about the situation in Nepal, if I go back and I am killed, who will take the responsibility?” The Tribunal asked him to explain exactly why someone wanted to kill him. He said he is worried about ego and anger and they may think is [a senior member] of the RPP and go after him. He is scared that if he is killed, his life will be finished.

10. The Tribunal put to the applicant its concerns about the credibility of his claims, discussed country information, and put information to the applicant pursuant to s.424AA of the Act.

11. Relevant evidence and information is set out below.

    FINDINGS AND REASONS

    Country of reference

12. The applicant produced to the Department his passport issued by the Nepalese authorities. The Tribunal accepts that the applicant is a national of Nepal and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Nepal.

    Credibility

13. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

14. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

15. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

16. The Tribunal had a number of concerns about the applicant’s inconsistent, changing and not credible evidence as to past events, and what he fears upon return to Nepal. The Tribunal did not find the applicant to be a credible, truthful, or reliable witness in relation to matters central to, and related to, his claims. The Tribunal’s concerns are set out below.

17. Firstly, the Tribunal was concerned that the applicant gave inconsistent and not credible evidence concerning the last events that occurred to him in Nepal, and his delay in taking action to leave the country thereafter.

18. The Tribunal asked the applicant to explain the last problem he had experienced in Nepal, and he said that the main incident was the 2002 kidnapping incident. The Tribunal noted this was not the question, and it then repeated the question. He then said the last bad incident was [in] December 2004, when he received a telephone call and he understood then it was not possible to stay in Nepal, and he had to come to Australia.

19. The Tribunal put to the applicant that, in his statement, he had claimed that it was [in] March 2005 that he received a phone call where his life was threatened again. In response, the applicant said that he was confused by a few months. While it is possible that the applicant made an error by a few months, this is somewhat more difficult to accept given that the applicant had provided (different) precise dates of the particular phone call in his statement.

20. However, even if the phone call occurred at the later date of [March] 2005, the Tribunal still had numerous concerns about the applicant’s claim that this was the last problematic event that he encountered in Nepal. One of the concerns was his then significant delay in leaving Nepal. The Tribunal said that if the last bad event occurred in 2004/2005, it did not understand why he did not come to Australia until 2009. The Tribunal put to the applicant that this was a significant delay in leaving the country, and, having regard to his claimed resources ([houses] in Kathmandu, [houses] elsewhere, lots of land, and a business), it did not understand why he would not have made arrangements to flee the country on a permanent basis, earlier than 2009. The applicant did not explain why he did not use his resources to leave the country earlier than he did.

21. Later, he claimed that he could leave once all the conditions were favourable. The Tribunal does not find this explanation to be a persuasive reason as to why, as the applicant claimed he was at risk of being killed or subjected to other harm, he delayed for four or five years in fleeing to Australia. The Tribunal considers this undermines his claim to have feared harm in 2004/2005 and beforehand, and it indicates that he did not have a genuine fear of harm between 2004/2005 and when he came to Australia in 2009.

22. Further, the Tribunal was concerned about the inconsistencies in the applicant’s evidence concerning the contents of that telephone call, his evidence about his political involvement (as a reason for being targeted), and further issues relating to his delay in leaving.

23. According to the applicant’s statement, in that telephone call, he was asked for a donation, his life was threatened again, he was ordered to close down his [business] and he was told that he couldn’t hide anywhere in Nepal or escape from them.

24. The applicant told the Tribunal, however, that in that phone call he was accused of being [a senior member] of the RPP and they would kill him if he stayed in Nepal; he said he was very scared.

25. The Tribunal was concerned with the differences in his claims. The Tribunal put to the applicant that, in his evidence to the Tribunal, he had not mentioned the claims made in his statement that:

    ·     After the phone call, he had been ordered to close down his [business], and he was told that he couldn’t hide anywhere in Nepal to escape from them.

    ·     He closed his [business] but they still troubled him all the time with phone calls and letters.

    ·     He went to the police station with the letters and the phone records and also told the police about the previous kidnapping incident, and asked them to provide him with security.

26. The Tribunal also said it was concerned that he did not mention these subsequent threats and letters (and conversation with the police) when asked about the last problematic event that had occurred in Nepal. He did not respond to the Tribunal, and when the Tribunal asked the question again, he said that he told Immigration about this. The Tribunal noted it was referring to his evidence to the Tribunal, not at interview. The Tribunal noted that it had asked him lots of questions about this, and he made no mention of any subsequent threats and letters, nor the visit to the police station where he was refused assistance. He agreed that he had not mentioned this to the Tribunal when asked about the last problematic events in Nepal, but he did not explain the omission. The Tribunal considers his changing evidence, and his omission to refer to claims made in his statement, undermines his credibility.

27. Further, the Tribunal was concerned about the applicant’s claim not made in his statement that he was accused of being [a senior member] of the RPP and threatened that he would be killed. The Tribunal considers that the applicant would have mentioned this in his statement if he had been so accused. The Tribunal also noted that, if he had been accused of being [a senior member] of the RPP, and threatened to be killed if he stayed in Nepal, and very scared, this made it even more difficult to understand his delay in leaving Nepal. He then said that he had to get all of his affairs in order before leaving Nepal. The Tribunal put to the applicant that it was hard to accept that it would take him four years to put his affairs in order before he could escape Nepal. The Tribunal considers the applicant’s delay in leaving, despite the claim made to the Tribunal that he was accused of being [a senior member] of the RPP and would thus be killed, to undermine his credibility.

28. As noted above, the Tribunal was also concerned about the applicant’s claim to the Tribunal that the parties threatened to kill him because they thought he was [a senior member] of the RPP, especially given that he did not make this claim in his statement. At the hearing, the Tribunal asked whether he was [a senior member] of the RPP, and he said no. The Tribunal asked why they would think he was, and he said he was a good member of the RPP, he was a politician. The Tribunal asked what he meant by saying that he was a politician. He then said he was a member of the RPP and his ancestors support the monarchy. The Tribunal put to the applicant that it did not understand how this meant that he was a politician; from what he was saying, it sounded like he was a member of the RPP, but not a politician. The applicant was silent, and then he said… “how can I make it clear?”

29. The Tribunal said that he could tell it about his party and what he did. He said his party follows the monarchy and he would lobby about the importance of the King. The Tribunal asked how he would lobby, and he said he was a strong supporter of the King and monarchy and he always wants monarchy; this is really all he knows. The Tribunal put to the applicant that his evidence was very vague, and it was finding it difficult to accept that he was involved in any party. In response, he said “how can I say in detail, I started my political career as a member and I was an urban member”. He was unable, when asked, to give any other details.

30. The Tribunal put to the applicant that there were similar difficulties with his evidence to the delegate about his claimed involvement in the RPP, as set out the delegate’s decision record provided to the Tribunal by the applicant, namely:

    At interview, when the applicant was asked several times about his involvement in the RPP, his answer is lacked detail. He was given several opportunities to provide information regarding why he would have been specifically targeted by Maoists groups, and political activities he had been involved in. When questioned, the applicant stated, “I used to support my party” and “following the principle of the party, following and respecting King”. The applicant, however, did not provide any examples or give detailed responses of his involvement in RPP, despite being specifically asked several times[3].

    [3] Page 5, delegates decision record provided to the Tribunal by the applicant.

31. The Tribunal put to the applicant that his answers appear to be so vague that it was having difficulty in accepting that he had supported this party, or had any political involvement at all. In response, the applicant said he is a member of the RPP. The Tribunal considers from his evidence that it is highly unlikely that anyone believed that the applicant had political involvement, or that he was [a senior member] of the RPP, or that he was accused of being [a senior member] of the RPP, or that he did have any political involvement.

1. Secondly, the Tribunal was also concerned about the applicant’s changing evidence concerning why he was not harmed in Kathmandu, having regard to his claim that he was thought to be [a senior member] of the RPP.

2. The applicant had initially told the Tribunal that he arrived [in] February 2002 in Kathmandu, and did not live anywhere else apart from the [family] homes. The Tribunal put to the applicant that if he was living in [different] locations only in Kathmandu, and they thought that he was [a senior member] of RPP, it is hard to accept that they didn’t attack him or attempt to assassinate him in one of his [homes]. In response he said that the security is pretty secure in that part of the country. However when the Tribunal put to the applicant that, if he was secure in Kathmandu, he could have stayed there and he did not need to come to Australia, he then said that the security is insufficient to protect him. The Tribunal said that, if there was insufficient security to protect him, it does not understand why he had not been harmed while he was living for years in [houses] in Kathmandu. The applicant did not explain this, except to say, yes, he was in hiding in those houses, and only he knows his pain.

3. The applicant also gave changing evidence about whether or not he ever left the houses in Kathmandu. He told the Tribunal that he stayed inside the [houses] in Kathmandu, and that he never went outside (for four years). When the Tribunal queried this, he then changed his evidence and said that he did sometimes go outside. The Tribunal considers the applicant’s changing evidence to undermine his credibility. The Tribunal also finds it difficult to accept that the applicant stayed in [the] houses, occasionally leaving, for four years, in hiding, especially given his access to resources so that he could have attempted to leave earlier.

4. The Tribunal put to the applicant that, if he did leave the houses, then the people who were after him could have come to get him, and he agreed.

5. Further, the Tribunal was also concerned because the applicant later again changed his evidence about where he lived during this period, stating that he did not just live in Kathmandu, sometimes he would return to Biratnagar, at night, and he would stay at the family home, for a few days. The Tribunal put the applicant that it was difficult to accept that he would risk returning to Biratnagar, the place where he had been kidnapped, and given there were ongoing threats that he would be killed. In response, the applicant said that he had to visit for documents or personal work. When the Tribunal put to the applicant that it did not understand why he would take the risk for documents or personal work, he responded “what can I say, Member?” The Tribunal has considered his responses, however, it does not find them persuasive. The Tribunal considers that it would be highly unlikely that the applicant would return to Biratnagar, if his claims were true.

6. Further, the Tribunal was also concerned because, as noted above, the applicant told the delegate, but did not mention in his written claims, that his brother was murdered in 2005. When asked by the Tribunal what happened to his brother, the applicant said that his brother was murdered in 2005 in Jhapa by the Madhesi group because they mistakenly thought his brother was him. The Tribunal put to the applicant that it was difficult to accept that this had occurred in the claimed context, namely, because it indicated that the applicant was being targeted for serious harm, yet he remained living at his [family] homes in Kathmandu (and sometimes left, and sometimes returned to Biratnagar as noted above), where he could clearly have been located. In response, the applicant said that he did not have all the documents to go away from his country. The Tribunal has considered this response; however it does not find it persuasive, noting the applicant’s claimed resources and business, and that he did not claim that he made any enquiries about how he could, or any attempts to, leave Nepal permanently at that time. The Tribunal’s concerns were heightened because the applicant had not mentioned in his written material that his brother had been murdered in 2005 as a case of mistaken identity, and that the applicant was really the target. The Tribunal considers that the applicant would have mentioned this in his written materials if it was true. The Tribunal also considers that if it was true, he would have made earlier enquiries about how he could leave Nepal.

7. Thirdly, the Tribunal had concerns about the applicant’s claim to have travelled to India for his security and to have experienced harm in India. As noted above, he told the delegate at interview that after moving to Kathmandu, he had travelled to India for his security. The Tribunal asked the applicant when he went to India and he said he could not remember. The Tribunal put the applicant that it was difficult to accept, if he travelled to India for his security, that he could not remember when he went there. He said that he could only remember it was after he went to Kathmandu, before 2002, and that he stayed in India for six months. He said there was an attempt to abduct him by the Madhesi in India and [someone] saved him.

8. The Tribunal put to the applicant that, if he had travelled to India for his security, and if there had been an attempted abduction in India, it would have expected him to have mentioned this in his protection visa application and statement. The Tribunal asked why this was not mentioned, and he said he told the agent everything. The Tribunal has considered this explanation; however, the Tribunal notes the applicant said that everything was read back to him. The Tribunal considers that, if he had experienced an attempted abduction in India, he would have noticed that this was not contained in his statement when it was read back to him. The Tribunal considers the applicant’s evidence about when he went to India to be vague; it notes that this is not referred to in his application form concerning his previous travel, and it does not find the applicant’s explanation to be persuasive. The Tribunal considers the applicant’s omission to mention this claim in his written materials undermines the claim and his credibility.

9. Fourthly, the Tribunal was concerned with inconsistencies between the applicant’s statement and his evidence to the Tribunal about further details of his claims and background as set out below.

10. The Tribunal was concerned about the credibility of the applicant’s claim that he was born in Biratnager, which is where he claimed the adverse situations occurred with the Maoists, and his past harm (he told the Tribunal that Kathmandu was safer).

11. The Tribunal noted that the applicant claimed in his statement that his home is located in Biratnager (and that he lived there until he moved to Kathmandu as a direct result of the harm he had experienced). However, as set out in the delegate’s decision record provided to the Tribunal by the applicant, the information in his student visa application file and his protection visa application form indicated that he was from Kathmandu. When the delegate put these inconsistencies to him at interview, he claimed that he was born in Biratnagar, and that the mistaken reference to Kathmandu was probably because his wife had prepared the student visa application, and he had received assistance in preparing his protection visa application form. The Tribunal had concerns about the latter explanation, given he had told the Tribunal that the contents were true and correct and had been read back to him.

12. The Tribunal was further concerned because, at hearing, the applicant provided changing evidence about where he was born. Initially he told the Tribunal that he was born in Biratnagar. When the Tribunal asked why he had claimed in his application form to be born in [Municipality 1], Kathmandu, he then said that, yes, he was born in [Municipality 1], Kathmandu. When the Tribunal asked why he had just said that he was born in Biratnagar, he said this was a mistake. The Tribunal was concerned by this changing evidence.

13. The Tribunal noted that, as set out in the delegate’s decision record, he had also told the delegate that he was born in Biratnagar, and asked why he had done this. He then said that they have [several] houses; [some] in Kathmandu, [in] Biratnagar, and [in] Jhapa; he grew up in Biratnagar. The Tribunal has considered the applicant’s explanations, but does not find them persuasive. The Tribunal was concerned about his changing and inconsistent evidence concerning where he was born (and lived), which undermines his credibility.

14. Further, during the hearing, the applicant maintained that he moved to Kathmandu in February 2002, after the kidnapping. However, at a different stage of the hearing, he claimed that he had moved to Kathmandu “20-30 years ago” (1986 or 1996); either 6 years or 16 years before 2002. The Tribunal considers that, if the applicant had moved from Biratnagar to Kathmandu due to fear of harm after he was kidnapped (in February 2002), he would not have claimed to have moved to Kathmandu in 1986 or 1996. The Tribunal considers this undermines his credibility.

15. The Tribunal’s concerns were heightened concerning when he moved to Kathmandu, because he claimed in his application form to be the proprietor of [a business] from February 1999 (which is before he moved to Kathmandu), whereas in his statement he claimed that he opened [a business] after moving to Kathmandu in 2003.

16. Further, the Tribunal was concerned about the applicant’s inconsistent evidence concerning his caste. At the hearing, the Tribunal asked the applicant what his caste is, and he said he is Chettri. The Tribunal put to the applicant its concern that, in his application form, it states that he is Brahmin.

17. The applicant did not explain why he gave such inconsistent evidence about his caste, and the Tribunal considers that his inconsistent evidence about his background undermines his credibility.

18. Further, the Tribunal was concerned that information on the offshore student visa application file was inconsistent with the applicant’s claims in these proceedings. The applicant had claimed in his statement that he had received threats (in March 2005) that he must close down the [business], which he did. As put to the applicant pursuant to s.424AA of the Act, however, the student visa application documents were submitted to the Department in 2008, and include documentation showing that he owned (part of) the [business]. The Tribunal noted this was inconsistent with his evidence to have closed down the [business] after receiving threats that he would be killed in 2005. In response, the applicant said that he already talked about the real incident; he has already told the Tribunal everything, and he doesn’t know how to fabricate things. The Tribunal has considered his response; however, it does not find it persuasive. The Tribunal notes the applicant did not explain the inconsistency between his statement, and the documents in the student visa application file. The Tribunal considers this undermines the applicant’s credibility and his claims.

19. Fifthly, the Tribunal was concerned about the applicant’s delay in coming to Australia once his visa had been granted. He said that he and his wife had decided to come to Australia for security. The Tribunal noted however that the applicant’s visa was granted [in] December 2008[4], but that he did not leave to come to Australia until [a date in] February 2009, a delay of two months. In response, the applicant said that he had to choose a good date according to Nepali culture. The Tribunal put to the applicant that he was suggesting that he was at risk of being killed and, in the circumstances, it was difficult to accept that he would not leave, despite the grant of his visa allowing him to escape, because he was waiting for a good date. On the evidence before it, the Tribunal considers this claim to be unlikely, and considers that the applicant’s delay undermines his claimed fear of harm.

    [4] As set out in the visa stamp in is passport provided to the Department.

20. Sixthly, the Tribunal was concerned by the applicant’s delay in claiming protection once he had arrived in Australia, and his changing evidence about his knowledge of his immigration status. He told the Tribunal that he left Nepal because of his fears, and that he arrived in Australia in February 2009. The Tribunal noted however that he did not apply for a protection visa until 2013. The Tribunal asked the applicant why he delayed so long and he said he didn’t know about the process and he had found out his wife had divorced him and he was scared about Immigration and then he came in contact with someone and told him about his situation, and that person told him to go to Immigration.

21. He told the Tribunal that he only worked for 2-3 months during that whole time he was in Australia, picking fruit, and the rest of the time he was supported by friends. He said this was because his visa was cancelled and he had no work rights; however, when the Tribunal noted that his visa had been cancelled [in] July 2010[5], and asked him when he found this out, his evidence was vague and evasive. When the Tribunal noted that it appeared he was avoiding the question, and that finding out when his visa was cancelled (and when he was thus unlawfully present) would have been important, he claimed that he didn’t receive any correspondence, instead he heard his visa was cancelled through friends, at the end of 2009.

    [5] As set out in the delegate’s decision record provided to the Tribunal by the applicant.

22. He said he was worried when he heard that his visa was cancelled in 2009. The Tribunal asked what steps he took, and he said “I just stayed idly”. The Tribunal asked further questions and his evidence continued to be evasive. Finally he said that he didn’t know about the process, he took no steps between the end of 2009 until he contacted immigration and lodged his protection visa application in 2013.

23. The Tribunal noted that he claimed to be a businessman in Nepal, and it would expect that if he had a genuine fear of harm in Nepal, he would have made enquiries earlier in Australia by consulting a migration agent about his status. He responded that he thought to apply, but his English is not good. The Tribunal put to the applicant that it was difficult to accept that he was resourceful enough to have people support him for 6-7 years while he did not work, but that he was not resourceful enough to make enquiries about his immigration status. The Tribunal does not find the explanations persuasive and considers that the applicant’s delay in lodging his protection visa application, despite his knowledge that his visa was cancelled, undermines his claims that he came to Australia fearing harm and that he would experience harm if he returned.

24. For all of the reasons referred to above, the Tribunal does not accept that the applicant is a witness of truth, in relation to past matters, or future feared harm.

    Other matters

25. The Tribunal notes that when asked, the applicant said that he agreed with the contents of the application form and statement, and they had been read back to him. The applicant did not suggest to the Tribunal that mistakes had been made in these documents, and the Tribunal had significant concerns, as set out above, with inconsistencies arising from these documents.

26. The Tribunal has considered that the applicant may have been nervous throughout the proceedings; however, it does not accept that this can explain the difficulties with his evidence.

    Corroborative evidence

27. The Tribunal has considered the four documents (with translations) produced by the applicant to the Department.

28. A letter was produced from the RPP suggesting that the applicant’s father resided in Morang, Biratnagar, and that he had been a member of [a committee] since the establishment of the RPP, and the applicant was a member of the Youth Organisation of RPP. The applicant had not been secure in Nepal and had gone abroad for some time. However, when the Tribunal discussed the letter with the applicant at hearing, it asked what section of the party he had been involved with, and he said he was just a member of [a] Committee. The Tribunal asked if there was any other section he worked for. He did not respond other than to say that he just worked in the [committee]. It was only after the Tribunal put to the applicant that the letter claimed that he had been a member of the Youth Organisation of RPP that the applicant agreed with this. The Tribunal noted that this was not what the applicant had told it when asked, and the Tribunal also put to the applicant that it had concerns, from his evidence, that he or anyone from his family had been involved in politics. The Tribunal asked whether there was anything else the applicant wanted to tell the Tribunal and he said no. Having regard to the inconsistency between the applicant’s evidence and the letter, as well as the Tribunal’s general concerns about the applicant’s credibility, it is not prepared to accept that this letter is genuine.

29. A further letter produced by the applicant included a letter from the Human Rights Organisation of Nepal stating that the applicant was a businessman and active struggler of democracy and human rights as well as being an active member of the RPP (as noted above, the Tribunal had difficulties in accepting that the applicant had any political involvement). The letter stated that he was consistently pressured by armed forces of Terai and Maoist organisations to follow their ideology and give up his political activities and pay huge donations, such that when he denied their demands his family were threatened and so they left the village. These groups continue to threaten him to date.

30. Letters from the Ministry of Home Affairs indicated that the police had done an enquiry, the applicant had been abducted by some unknown persons, he was released after paying the ransom, there are insufficient security arrangements for the general public, and he has been compelled to migrate from his home area.

31. The Tribunal put to the applicant at hearing that independent information suggests that documents from Nepal can be fabricated[6]. Having regard to this information, as well as the Tribunal’s concerns about the applicant’s credibility, the Tribunal does not give the claimed corroborative evidence provided any weight.

    [6] An Immigration and Refugee Board of Canada response to information request dated 26 January 2009 indicates that Nepalese documents can be obtained by fraud. The response to information request refers to correspondence in November 2008 from an official at the Canadian High Commission in New Delhi who dealt “primarily with identity documents from India as well as Nepal”: “My experience is that any Nepalese document can be obtained by fraud. These may include falsely obtained, forged or complete counterfeits. I have personally seen and seized counterfeit passports, driver’s licences and company identification cards that are complete counterfeits or are altered. (Canada 26 Nov. 2008)… Several Kathmandu Post articles address the acquisition or use of forged and fake documents in Nepal by private citizens (The Kathmandu Post 7 July 2008; ibid. 29 June 2008; ibid. 6 Nov. 2008)”: Immigration and Refugee Board of Canada 2009, NPL103010.E - Nepal: Prevalence of forged, fake or falsely acquired documents, including identity documents, professional certifications, membership cards and employment records, 26 January – Accessed 4 May 2010.

    Credibility summary  

32. Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and the applicant has fabricated an account of events upon which he has based his protection claims. Therefore, the Tribunal is not satisfied that any corroborative evidence before it overcomes its concerns, and therefore does not give such evidence any weight.

    Findings of fact on the applicant’s claims

1. The Tribunal has not accepted that the applicant has provided truthful evidence about his claims concerning Nepal (or India).

2. On the basis of the adverse credibility finding, the Tribunal does not accept that the applicant has been targeted by Madhesi Mukti Morcha, JTMM, NCP Maoist, Madhesi groups or persons from Terai, any other Maoist groups or any other organisations, groups or persons, nor that he was a businessman who was threatened, requested to provide donations, accused of spying, kidnapped and released upon payment of a ransom, suspected of any political persuasion or involvement or leadership nor that he had any political involvement, nor that he has expressed or would have wished (or will wish) to express any political views.

3. The Tribunal does not accept that the applicant’s family has ever had any involvement in politics or been suspected of such involvement, nor have ever come to the adverse attention of any person, organisation, or group.

4. The Tribunal does not accept that the applicant’s [brother] was killed by the Madhesi group in 2005 in Jhapa, Nepal, nor that the applicant travelled to India for security and was  targeted in India by anyone.

5. The Tribunal does not accept that any of the consequences flowing from the applicant’s claims are true (such as contacting the police, living in hiding in Kathmandu or his reasons for travelling to India or coming to Australia). The Tribunal does not accept his assertions that he fled Nepal in fear, and that he faced harm at the time from any persons, group, or organisation.

6. The applicant told the Tribunal that, if he returns, he could be killed because “they” might think that he is [former senior member] of the RPP and go after him. On the basis of the adverse credibility finding, the Tribunal has not accepted that the applicant has ever had any political involvement (including membership), nor that there is any reason for anyone to have thought he was a [senior member] of, or involved in, any political party. The Tribunal does not accept that the applicant faces a real chance or a real risk of being subjected to any harm for the claimed reasons.

   Return to Nepal

7. The Tribunal is prepared to accept that the applicant is educated, speaks a number of languages, and has work experience in Australia and Nepal. Having regard to its concerns about the applicant’s claimed business, and the adverse credibility finding, however, it is not prepared to accept that he was a businessman.

8. The Tribunal has considered the location of the applicant’s home area. The Tribunal found his evidence, referred to above, concerning the issue of where he was born, grew up and resided, to be confusing and not credible. The Tribunal also notes that the application form claimed that the applicant was born in Kathmandu, and did his childhood studies, [year] until 1995 in Kathmandu. Although the form also suggested that he spent two years studying from 1995 until 1997 in [Biratnagar], this was inconsistent with another aspect of the form which stated that the applicant resided at a single address in Kathmandu all of his life until he came to Australia. The Tribunal put to the applicant that it may find that he was from Kathmandu.

9. On the basis of the adverse credibility finding, the Tribunal is not prepared to accept that the applicant was born or grew up or lived in Biratnagar, and, in the circumstances, the Tribunal considers it most likely that the applicant was born and grew up in Kathmandu and lived there all of his life, and the Tribunal so finds.

10. The Tribunal accepts that he has family members at his home in Kathmandu. The Tribunal finds that the applicant is very resourceful and has been able to support himself in a foreign country. The Tribunal put to the applicant at hearing that, if it did not accept his claims, it would appear that he could return, continue to work in Nepal, and would not face a real chance of serious harm or a real risk of significant harm. Further, in its discussions, it indicated that it appeared there was nothing in the country situation as set out in the DFAT Report to which the Tribunal is required to have regard, to indicate that he would face a real chance of serious harm or real risk of significant harm in Nepal.

11. The Tribunal noted the applicant’s inconsistent evidence concerning his caste (Chettri or Brahmin). The applicant did not explain why he gave such inconsistent evidence about his caste, and the Tribunal considers that his inconsistent evidence about his background undermines his credibility. The Tribunal is prepared to accept that the applicant is either Chettri or Brahmin; on the basis of his evidence and credibility difficulties, it is not satisfied as to which ethnic group he belongs to.

12. The Tribunal put to the applicant that having regard to the DFAT Report, the Brahmin and the Chhetri are the largest ethnic groups in Nepal[7]. If the applicant returned to and resided in Kathmandu, it did not appear that, having regard to the country conditions, he would face a real chance of serious harm or real risk of significant harm on the basis of his caste. The Tribunal asked if he would like to comment and he said that if he goes back, he will be killed, but if there are peaceful conditions he will go back.

    [7] DFAT Report paragraph 3.2

13. The Tribunal discussed the security situation in Nepal with the applicant at hearing, as set out in the following paragraphs. The Tribunal’s findings are made in the context of the applicant’s profile, namely a Nepalese man, from either the Chettri or Brahmin caste, who comes from, and will return to, Kathmandu where he has family members (although he is divorced from his wife in Australia), who was educated and worked in Nepal, and who had, has had, and will have, no political involvement or inclinations. The Tribunal has found that the applicant’s claims about past harm and imputation and involvement are not true, and thus the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm or being targeted by Madhesi Mukti Morcha, JTMM, NCP Maoist, Madhesi groups or persons from Terai, any other Maoists or any organisations, groups or persons, in relation to business, politics, family members, donations, political opinions or for any other reason. The Tribunal does not accept that anyone seeks to harm the applicant (or his family members).

    General security situation, conflict and the conflict in Terai

14. As noted above, when the Tribunal asked the applicant what he feared about returning to Nepal, and he said he wants to return to Nepal if the conflict in Terai settles down, but no one can say what will happen. He read that there was conflict in Terai on the internet. The Tribunal put to the applicant however that he claimed to have been living in Kathmandu before coming to Australia, and that he had houses there, and it would appear that he would return there. In response, the applicant said “what can I say, how can I say the situation in Nepal, if I go back and I am killed who will take the responsibility?”

15. When the Tribunal put to the applicant that if it did not accept his claims it would appear that he can return to Kathmandu, and work, he said he would like to return to Nepal, but there is another protest next month (ie June 2016) organised by Madhesi and “who will care if I will be killed?” He did not provide any support for his assertion about protests, nor any suggestion that they would occur in Kathmandu, nor any basis to suggest that he would face a real chance of serious harm or a real risk of significant harm for such reasons.

16. The Tribunal put to the applicant that on the country information before it, if it did not accept his claims, it did not appear that he faces a real chance of serious harm or a real risk of significant harm. In response, the applicant said that he read somewhere that the Madhesis will start to protest again. The Tribunal said that while 40 people being killed is a serious matter, his evidence is that there are 30 million people in Nepal. The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of serious harm or real risk of significant harm in relation to any protests, or violence generally.

17. Concerning Maoists, the Tribunal notes it has not accepted that the Maoists have any interest in the applicant. The Tribunal notes that Maoist violence periodically continued following the signing of the Comprehensive Peace Agreement in 2006. Much of this violence was perpetrated by underground and splinter faction Maoist groups and the Unified Communist Party of Nepal (Maoist) (UCPN-M) until 2012. Intra-party violence was noted in 2011 amongst Maoists.[8] In 2012, the UCPN-M was removed from the United States list of world-wide terrorist organisations.[9] Two incidents of Maoists violence against pro-monarchists in 2011 were located. On 26 April 2011, ‘[a]t least 14 RPP activists were injured in a clash with the UCPN-M cadres at Madi in Chitwan District. According to eye witnesses, the clash ensued after the Maoist cadres suddenly attacked the RPP activists while they were attending a party workers’ meeting at Madi.’[10] On 1 November 2011, ‘[a] cadre of Rastriya Prajatantra Party (RPP), Pemba Lama of Bhotang VDC-1, was injured when two local UCPN-M cadres – Raju Tamang and Mangale Tamang – attacked Lama with Khukuris on the charge of having different political belief.’[11]

    [8] South Asia Terrorism Portal 2012, Nepal Assessment 2012, 9 January, para.10-13 < Accessed 10 January 201

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

    [10] South Asia Terrorism Portal 2011, Incidents involving Communist Party of Nepal-Maoist 2011, 30 December < Accessed 12 January 2012

    [11] South Asia Terrorism Portal 2011, Incidents involving Communist Party of Nepal-Maoist 2011, 30 December < Accessed 12 January 2012

18. 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.[12]

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

19. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real risk of significant harm (or a real chance of serious harm) from Maoists.

20. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm in the form of being killed, kidnapped, extorted, threatened or otherwise harmed in Nepal, from anyone at all (including Maoists, people, groups, organisations, parties) or for any reason.

21. On the evidence before it, the Tribunal is not satisfied that he faces a real chance of serious harm or a real risk of significant harm on the basis of the security, political situation, alleged terrorists, persons, groups, or the authorities of the country.

    Summary

22. The Tribunal is not satisfied that the applicant faces a real chance of serious harm for any reason.

23. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution upon return to Nepal or in the reasonably foreseeable future, for a Convention reason.

    Complementary Protection

24. The Tribunal does not accept that the applicant (or his family) has been harmed or targeted for harm or threatened in the past, nor that he has had to change locations to avoid harm in the past. The Tribunal does not accept that the applicant (or his family) faces any harm in the future from anyone in Nepal (or India), including from any Maoist groups or organisations, or anyone else. The Tribunal is not satisfied that the applicant will attract any adverse interest in Nepal such that he will face a real risk of significant harm. The Tribunal is not satisfied that any other aspect of the applicant, or his family situation, will attract any adverse interest by anyone in Nepal such that he will face a real risk of significant harm.

25. The Tribunal considers that the applicant will return home to Kathmandu and will find a job and continue living with his family members.

26. 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.

    Conclusion

27. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

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

29. 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

30. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

    Christine Cody

    
    

    Member

    ANNEXURE A - RELEVANT LAW

31. 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.

    Refugee criterion

32. 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).

33. 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.

34. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

35. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

36. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

37. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

38. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

39. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

40. 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’).

41. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

1. 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.

   
   

Further, as noted by the delegate in the decision record, CX285384:”Nepal: Corruption and Fraudulent Documents set hurdles for adoption”, April 2012, also supports the availability of fraudulent documents.