1418703 (Refugee)

[2016] AATA 4013

1418703 (Refugee) [2016] AATA 4013 (8 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418703

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Rachel Homan

DATE:8 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 08 June 2016 at 3:23pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who the Tribunal accepts is a citizen of Nepal, applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] October 2014.

3. The issues in this review are whether the applicant has a well-founded fear of persecution in Nepal for one or more of the five reasons set out in the Refugees Convention; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk the applicant will suffer significant harm.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Visa application

10. According to information provided in his visa application, the visa applicant is a [age]-year-old Nepalese national, born in [Nepal]. The visa applicant identified as belonging to [a certain] ethnic group and Hindu religion. The applicant claimed to have been in a de facto relationship since 2008.

11. The applicant stated that he entered Australia as a student in February 2008 and most recently held a subclass [number] student visa. The applicant claimed to have completed a primary and secondary education as well as study towards a [qualification] in Nepal. In Australia, the applicant completed [a qualification].

12. The applicant claimed that he left Nepal for further studies but was afraid of returning to that country because of his experiences in Australia. The applicant stated that he would be neglected by society owing to his drug addiction and relationship with a woman from a different caste.

13. Submitted with visa application was the identity page of the applicant’s Nepalese passport, a written submission prepared by the applicant’s representative and a statutory declaration in the English language made by the applicant on 25 March 2014.

14. According to his statutory declaration, the applicant got involved in drugs in Australia in 2010. The applicant was unable to hide his addiction and his friends and family started to worry about him. They offered the applicant help but the applicant was totally addicted to drugs and never listened to anyone. The applicant claimed that he lost everything, including his friends, family, money, shelter, studies and job.

15. During this period, the applicant was in regular contact with a girl, [Ms A], who was a friend of the applicant’s [relative]. The applicant claimed to have known [Ms A] since 2008 but at the end of 2008 she moved to [city]. [Ms A] visited the applicant occasionally every year and reminded him about how precious life is and not to waste it. [Ms A] was the only person the applicant felt able to talk to and, with her assistance, overcame his drug addiction. The applicant claimed to love [Ms A] and stated that he wished to spend the rest of his life with her but due to family and cultural pressure it was not possible for them to be united. The applicant stated that Nepal is a fundamental Hindu society based on a class system and marriage between persons of higher and lower castes is never accepted. Persons who marry outside their caste are ostracised by society and the subject of persecution.

16. The applicant’s representative’s submission states that the applicant claimed to fear harm as a member of a particular caste, namely [Caste 1]. According to the submission, people from [Caste 1] are regarded as one of the disadvantaged groups in Nepal. People from this caste are socially, economically, politically suppressed by the upper castes and deprived of their basic human rights. In addition, the submission states that the applicant fears being ostracised and persecuted because of his relationship with a girl from a different caste; and because of his previous drug addiction.

17. The applicant was interviewed by an officer of the Department of Immigration [in] October 2014 and the Tribunal has listened to a recording of that interview. At the interview the applicant submitted evidence of his involvement in an opiate detoxification program from February 2010 onwards; a notice of intended marriage; and a receipt for payment of a marriage ceremony fee and marriage certificate.

    Review application

18. The applicant submitted no additional evidence at the time he applied for review. Shortly prior to the Tribunal hearing, the Tribunal received a submission from the applicant’s representatives requesting a postponement of the scheduled hearing on the grounds that they had been unable to make contact with the applicant. Some 20 minutes after the hearing was scheduled to commence, the applicant contacted the Tribunal switchboard and advised that he wished to attend the hearing but would not arrive for a further 30 minutes. Over an hour after the hearing was scheduled to commence, the applicant arrived at the Tribunal. Despite the applicant’s delay, the Tribunal was able to proceed to conduct a hearing.

19. At the Tribunal hearing, the applicant confirmed that he was a Nepalese citizen and did not hold a visa for any other country. The applicant stated that he belonged to [a certain] ethnic group and Hindu religion and [Caste 1]. The applicant confirmed that he arrived in Australia as the holder of a student visa and was granted a further student visa with work permission shortly after his arrival. The applicant claimed that he had completed [a qualification] and commenced a course in [course]. The applicant stated that [one sibling] was residing in [Australia] and studying [course] at [a] University. The applicant’s [other siblings] resided in [another country]. The applicant’s parents remained in Nepal and were nearing retirement. The applicant told the Tribunal that his parents previously operated a [business]. The applicant stated that he maintains regular contact with his mother, speaking with her on a weekly basis.

20. The applicant submitted to the Tribunal an original certificate of marriage indicating that he and [Ms A] were married [in] 2014. The applicant told Tribunal that he continued to be in a relationship with [Ms A] and that they were residing together in [suburb]. The applicant told the Tribunal that he and [Ms A] had been living together in a relationship since sometime in 2013. [Ms A] had recently been granted permanent residence in [Australia]. The applicant told the Tribunal that [Ms A] had been unable to attend the Tribunal hearing due to work commitments. The Tribunal noted that apart from the marriage certificate and his oral evidence, the Tribunal had before it no other evidence that he continued to be in a relationship with [Ms A]. The applicant indicated to the Tribunal that he was able to submit further evidence in this regard and the Tribunal allowed the applicant period of two weeks in order to do so.

21. The applicant told the Tribunal that he had not told his family about his marriage to [Ms A]. When asked the reasons why, the applicant stated that [one sibling] who resided in [another country] had married outside [the] caste and, as a consequence, his parents had stopped talking to [that sibling]. The applicant stated that he feared that his mother would stop talking to him were it known that he had also married outside his caste. The applicant stated that he feared being outcast from his family and society and left alone without the support of a community. The Tribunal put to the applicant that his evidence did not suggest that he feared any physical harm from his family or society as a consequence of his marriage. The applicant indicated that it was unlikely that his parents would physically harm their own child, although there were reports of other people being killed and hurt for marrying outside their caste in Nepal. The applicant claimed that he would suffer mentally as a result of his family’s and society’s rejection of him and his parents’ unhappiness.

22. The Tribunal put to the applicant that the country information before it included reports of harm being directed towards couples involving a dalit and a non-dalit partner but the Tribunal did not have information before it suggesting that there was a real chance or risk of couples where both parties were from higher castes being subjected to harm which could amount to serious or significant harm. The Tribunal also noted that Nepal’s marriage laws permitted inter-caste marriage and that Nepalese law prohibited discrimination on the basis of caste. The information suggested that attitudes towards inter-caste marriage in rural areas may still be unfavourable but gradually this type of marriage was becoming more acceptable, particularly amongst younger generations. The applicant indicated that despite the law, traditional attitudes prevailed and his parents and members of an older generation which still rejected inter-caste marriage.

23. The Tribunal put to the applicant that even if it were satisfied that there was a real chance that the applicant’s family or a member of his community might seriously harm him as a consequence of his marriage, in order for him to meet the definition of refugee, the Tribunal would need to be satisfied that the Nepalese state would fail to adequately protect the applicant from such harm. The Tribunal noted that Nepalese law appeared to offer the applicant protection in so far as the law allowed inter-caste marriage and prohibited discrimination on the basis of caste. The Tribunal also had before it reports suggesting the police were willing to intervene in cases where people had been threatened on the basis of their caste. The applicant responded that the whole of Nepal was in a state of failure and that there was no effective law.

24. The Tribunal also put to the applicant that in order for him to meet the complementary protection criterion, the harm would need to meet the statutory definition of significant harm, which includes torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal explained that these definitions required there to be pain or suffering, which is intentionally inflicted. The applicant responded that he would suffer mentally. The applicant said that if he were to return to Nepal he would be starting from zero and would not have the support of society.

25. The Tribunal asked the applicant about his claim to fear harm in Nepal as a result of his previous drug addiction. The applicant told the Tribunal that he continued to receive treatment [and] was currently taking the minimum dose of [medication]. The applicant stated that, although he had not personally told his parents about his drug addiction, they found out from others. The applicant stated that they had never confronted him about it. The Tribunal noted that despite having discovered his drug addiction, the applicant’s parents continued to talk to him. The Tribunal asked the applicant what kind of harm he feared as a consequence of his prior drug addiction. The applicant indicated that he feared being rejected, gossiped about or looked down upon by his family and society.

26. The Tribunal put to the applicant that it had the same difficulties with this claim as with his claim to fear harm as a result of his marriage. The Tribunal explained that these appeared to be personal matters and in order to meet the definition of refugee there needed to be a failure on the part of the Nepalese state to protect the applicant from serious harm. In relation to the complementary protection criterion, it was not immediately apparent that the applicant’s feelings of rejection or disappointment would meet the statutory definition of significant harm.

27. The applicant stated that he had been told by friends in Nepal that, although he would be able to access the medication he is currently on in Kathmandu, there was a waiting list to join such programs. The applicant indicated that his family lived approximately 6 hours from Kathmandu but that he wouldn’t mind living in Kathmandu if forced to return to Nepal in order to access his medication.

28. The Tribunal noted that the applicant’s representative’s letter to the Department had also articulated a claim that the applicant feared harm on the basis of his own caste. The Tribunal noted that this claim had not been made by the applicant in his own statutory declaration and appeared inconsistent with the other evidence before the Tribunal about the applicant’s family’s circumstances including that his parents had been able to send him and his siblings abroad to study and that they had run their own business. The applicant guessed that the claim may have been made because he was part of a minority group but had nothing further to add in relation to this issue.

29. Following the Tribunal hearing, the applicant submitted three photographs of himself with a female person.

    Country information

    Inter-caste marriage

30. The DFAT Country Report for Nepal[1] provides the following advice in relation to inter-caste marriages:

    Inter-caste marriages

    3.35 There are no legal barriers to inter-caste marriage in Nepal and the government has provided monetary incentives of 100,000 NRs (approximately AUD1, 300) to each inter-caste couple married since 2009. According to one study that examined 123 inter-caste marriages from Banke, Parbat and Shanusha districts between December 2011 and March 2012, 80 marriages were between a Dalit male marrying a non-Dalit female and 43 were between a non-Dalit male marrying a Dalit female. The former type of union was generally more successful. However, overall, success of an inter-caste marriage depends on a range of factors including economic, educational, social and political status. The practice of downgrading one's caste as a result of inter-caste marriage still exists in remote and rural areas. Dalit families involved in such arrangements can risk even further social exclusion and non-Dalit families risk losing their status in society.

    3.36 DFAT assesses that inter-caste couples can face disapproval by their families or society. Accusations of criminal activity such as theft, kidnapping, child marriage and rape can be used by the (relatively) higher-caste family to pressure the break-up of inter-caste marriages. Physical attacks and social exclusion by the families can also be imposed on couples in order to force a break-up of the relationship.

    [1] DFAT Country Information Report – Nepal, 21 April 2016

31. The US Department of State Country Reports on Human Rights Practices for 2014 reports that a rigid caste system continued to operate throughout the Nepal, ‘especially in rural areas’ where ‘traditional beliefs’ are more prevalent. The report also states:

    ‘Resistance to intercaste marriage sometimes resulted in ostracism or forced expulsion from the community, according to media reports and NGOs advocating for Dalit rights. Media reports also covered incident in which Dalits were barred from entering temples and teashops and sharing water sources, and they occasionally suffered violence in such situations, which NGOs said was decreasing but persisted.

    […]

    In urban areas better education and higher levels of prosperity, especially in the Kathmandu Valley, were slowly reducing caste distinctions and increasing opportunities for lower socioeconomic groups.’[2]

    [2] US Department of State 2015, Country Reports on Human Rights Practices for 2014 – Nepal, 25 June, Section 6 < <OG2B06FAF131> 

32. The Marriage Registration Act 2028 (1971) does not prohibit inter-caste marriage.[3] Laws in Nepal also protect citizens against caste discrimination[4].

    [3] Marriage Registration Act, 2028 (1971), Chapter 2 Marriage through Registration, Nepal’s Law Commission < <CIS22156> 

    [4] Caste Based Discrimination and Untouchability (Offence and Punishment) Act, promulgated 1 June 2011, Nepal Law Commission website < <CIS22241>

33. In 2009, the government of Nepal provided financial incentives to encourage inter-caste marriage with Dalits. Dawn reported that ‘Finance Minister Surendra Pandey said inter-caste marriages were still frowned upon, and he hoped that the 100,000-rupee ($1,270) payment would help such couples’:

    ‘Society still rejects inter-caste marriage between Dalits and non-Dalits and the initial days of couples thus married are normally tough,” he told parliament as he presented the government's new budget.

    “To encourage such inter-caste marriage, the government will provide a grant of 100,000 rupees to the newly married couple within 30 days of marriage registration.”’[5]

    [5] ‘Grants for inter-caste marriage in Nepal’ 2009, DAWN, 14 July < <CX5E56FED19269>

1. An October 2015 Nepali Times report indicates that ‘Inter-caste marriage is gradually becoming less un-acceptable and the younger generation isn’t much interested in antiquated concepts of caste and ethnicity’[6]. A The Kathmandu Post April 2015 report indicates that ‘intercaste marriages have become more acceptable, at least in urban areas’.[7]

   [6] The Great National Unreveling (GNU)’ 2015, Nepali Times, 1 October < <CXBD6A0DE14696> 

   [7] Pun, W 2015, ‘In search of a lone crusader’, The Kathmandu Post, 18 April < <CXBD6A0DE14706 >

2. Several recent reports, however, document continued discrimination and harassment directed towards inter-caste couples involving a Dalit partner.[8] Several media reports indicate that the police intervene to protect victims of caste-based discrimination. An INSEC 12 October 2015 article reports of a man ‘arrested by Lahan Area Police Office on October 12 on charge of [sic] discriminating a women [sic] on the basis of caste’.[9] Likewise, an INSEC 4 December 2014 article reported that police arrested an individual from Bhawani ‘on charge [sic] of discriminating on the basis of caste’.[10] A Sunaulokhabar 27 August 2015 report claims that the Kathmandu District Court prosecuted an individual on the basis of ‘caste based discrimination’.[11] According to a Nepal Monitor 26 January 2015 report, police arrested family members for assaulting one of their family members who married a Dalit.[12]

   Drug dependency

   [8] See Adhikari, P 2014, ‘Inter-caste marriage displaces Dalit family’, The Kathmandu Post, 1 January < <CXBD6A0DE14689>; Sharma, S 2014, ‘Inter-caste nuptials still a taboo’, Nepal Mountain News, 19 June < <CX1B9ECAB11533>; Dalit youth’s family threatened after marriage with non-dalit girl’ 2015, Enayapatrika, 19 August < <CXBD6A0DE14756>; Asian Human Rights Commission 2014, ‘Couple missing and entire family forcefully displaced following an inter-caste marriage’, 27 August < <CX1B9ECAB11537>

   [9] Pariyar, D 2015, ‘Man Arrested on Charge of Caste-based Discrimination’, INSEC, 12 October < <CXBD6A0DE14740>

   [10] Thapa, Y R 2014, ‘One Arrested for Caste Discrimination’, INSEC, 4 December < <CX1B9ECAB11535> 

   [11] ‘Judgement in favour of Dalit: fine of 3 thousand rupees imposed to the perpetrator of caste discrimination’ 2015, Sunaulokhabar, 27 August < <CXBD6A0DE14764> 

   [12] ‘Family thrashes woman for marrying a Dalit’ 2015, Jagaran Media Center, 26 January < <CXBD6A0DE14768> 

3. The DFAT Country Information Report for Nepal provides the following advice in relation to persons with drug dependency issues:

   People with drug dependency issues

   3.65 Nepal has strong legal provisions prohibiting the consumption, possession, and transport of drugs. Although Nepal is neither a significant producer of, nor a major transit route for, narcotic drugs, domestically-produced cannabis, hashish, and heroin are trafficked every year. Marijuana and its by-products have traditionally been used for medical purposes as well as cultural and religious occasions for hundreds of years in Nepal.

   3.66 Drug-use in Nepal has increased significantly over the last twenty years. According to the Central Bureau of Statistics, Nepal had more than 91,000 drug users in 2014, approximately 6,330 of who were women. According to a 2006 – 2013 government survey on hard drug users in Nepal, the majority of drug users are found in the Kathmandu valley, followed by Sunsari, Kaski, Morang, Jhapa, Rupandehi, Chitawan, Banke and Parsa. Youth aged 20 to 24 years accounted for the highest proportion of drug users in Nepal and opiates and cannabis are the most commonly used drugs.

   3.67 Societal attitudes towards drug users are generally negative in Nepal, particularly for female drug users. However, support groups and organisations that provide counselling, rehabilitation and employment support as well as basic services, are available.

4. Information published by the World Health Organisation in 2010[13] indicates that Nepal has a substance-abuse policy in place and that treatment is available for drug use disorders within the private and public sectors and from non-governmental organisations. The treatment services available include inpatient medical detoxification, outpatient medical detoxification, outpatient abstinence oriented treatment and substitution maintenance therapy of opioid dependence. The waiting period to receive outpatient opioid substitution treatment was approximately 30 days subject to expert assessment. Medicines used for treatment of opioid dependence maintenance and detoxification include methadone and buprenorphine.

   [13] marriage

5. The Tribunal accepts, on the basis of the marriage certificate before it, that the applicant is married to [Ms A]. The Tribunal is not, however, satisfied on the evidence before it that the applicant is in a genuine, ongoing relationship with [Ms A]. The only evidence as to the applicant’s relationship with [Ms A] before the Tribunal, apart from the marriage certificate, is the applicant’s brief oral and written evidence regarding the circumstances in which they met and their living arrangements and three photographs of the applicant with a female person, presumably [Ms A]. [Ms A] has not provided any evidence to the Tribunal. Nor has the applicant submitted any of the more detailed evidence of their relationship suggested to him at the Tribunal hearing. The applicant told the Tribunal that he had not told his family of his marriage. The applicant also told the Tribunal that [Ms A] had recently been granted Australian permanent residence.

6. In these circumstances, the Tribunal is not satisfied that there is a real chance or risk that the applicant’s marriage to [Ms A] would become known by the applicant’s family or his community should the applicant return to Nepal.

7. The Tribunal has given consideration to the applicant’s position if, despite the Tribunal’s finding above, his marriage did become known. The applicant has asserted that he and [Ms A] are from different castes without providing any supporting evidence of this claim. The Tribunal is prepared to accept on the basis of their surnames that the applicant and [Ms A] are in fact of different ethnicity and castes. The Tribunal is not satisfied, however, that either party is a member of an untouchable or “dalit” caste.

8. The applicant has not claimed to fear any physical harm arising from his marriage, but has expressed concern that his mother might stop talking to him and that he would experience mental suffering as a consequence of his family’s rejection of the marriage. The Tribunal accepts that the applicant’s parents are members of an older generation, which may broadly speaking continue to hold more conservative attitudes towards inter-caste marriage. The Tribunal has also taken into account the applicant’s evidence pertaining to his sister’s marriage. The Tribunal is not, however, satisfied that there is a real chance or risk that the applicant’s mother or other members of his family would react in this way, given their seemingly close relationship, apparent tolerance of the applicant’s other indiscretions and, significantly, because the Tribunal is not satisfied that the relationship is in fact genuine.

9. As put to the applicant at hearing, the Tribunal is also not satisfied, for the purposes of s.36(2)(a), that this type of harm, if it did occur, would constitute persecution. This is because the Tribunal is not satisfied that it would rise to the level of serious harm and because the Tribunal is not satisfied that it involves any failure or complicity on the part of the Nepalese state[14].

   [14] See, for example, Applicant A v MIEA (1997) 190 CLR 225 at 233 at 257-8

10. The Tribunal is also not satisfied that it involves “significant harm” as defined for the purposes of s.36(2)(aa). In particular, the Tribunal is not satisfied that it involves an act or omission by which severe pain or suffering is intentionally inflicted for one of the five purposes in the statutory definition of torture; an act or omission which is intended to cause extreme humiliation; or an act or omission intended to cause pain or suffering which is severe or cruel or inhuman in nature.

11. Whilst the Tribunal accepts that there may still be elements within Nepalese society which do not approve of the applicant’s marriage, on the applicant’s evidence and the country information set out above and discussed with the applicant at hearing, the Tribunal is not satisfied that there is a real chance or risk of the applicant suffering serious or significant harm from any other person as a consequence of his marriage, should he return to Nepal now, or in the immediately foreseeable future.

    Drug dependency

12. The Tribunal accepts that the applicant has, at least in the past, been dependent on opiates and is currently participating in an opiate detoxification program in Australia. The applicant has claimed to fear being rejected, gossiped about or looked down upon by his family and society as a consequence of his dependency issues.

13. The applicant gave evidence that although he hadn’t discussed his drug dependence with his family in Nepal, they had become aware of it through other persons. Despite this awareness, the applicant gave evidence that he has maintained a good relationship with his parents and talks with his mother on a weekly basis. In these circumstances, the Tribunal is not satisfied that there is a real chance or risk of the applicant being rejected, gossiped about or looked down upon by his family.

14. Whilst the Tribunal is prepared to accept on the country information above that there is a real chance or risk that others in Nepalese society may act in this way, as discussed with the applicant at hearing, the Tribunal is not satisfied that this type of treatment amounts to serious harm or significant harm.

15. The applicant has conceded that he would have access to medical detoxification treatments in Nepal, at least in Kathmandu, and that he would be willing to relocate to Kathmandu to access such treatment. The country information referred to above is consistent with the applicant’s claims insofar as it suggests that there may be a short wait to access treatment. The Tribunal is not satisfied, however, that this type of delay gives rise to protection obligations. In particular, the Tribunal is not satisfied that it involves systematic and discriminatory conduct amounting to persecution for the purposes of s.36(2)(a). Nor is the Tribunal satisfied that involves any intentional act or omission for the purposes of the statutory definition of significant harm.

    Other considerations

16. The applicant’s representative advanced a claim on his behalf in submissions to the Department that the applicant faced a real chance or risk of serious or significant harm in Nepal as a consequence of his [caste]. The applicant himself has not advanced this claim at any point. When it was brought to his attention at the Tribunal hearing, he expressed some surprise and confusion as to why such a claim would have been made. The Tribunal finds nothing in the applicant’s own evidence or the country information before it to support his representative’s assertions. In the circumstances, the Tribunal is not satisfied that there is a real chance or risk of the applicant suffering serious or significant harm arising from his caste.

    Conclusions

17. The Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted should he return to Nepal now, or in the reasonably foreseeable future. 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).

18. 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 finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

19. No protection claims have been advanced in respect of the third or fourth applicants.

20. For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c).

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

    DECISION

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

    Rachel Homan
    Member