1418893 (Refugee)

[2016] AATA 4035

1418893 (Refugee) [2016] AATA 4035 (17 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418893

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Rachel Homan

DATE:17 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 17 June 2016 at 9:13am

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. The application was refused because the delegate was not satisfied that Australia owed protection obligations to the applicant under either the Refugees Convention or the complementary protection provisions in s.36(2)(aa) of the Act.

3. For the reasons that follow, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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).

6. 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.

7. 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’).

8. 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

9. According to information provided in his visa application, the applicant is [an age]-year-old Nepalese national born in Jhapa, Nepal. The applicant stated that he belonged to the Rai ethnic group and Hindu religion and stated that he had never been married or in a de facto relationship. The applicant stated that his parents, [and siblings] continued to reside in Nepal. The applicant declared that he arrived in Australia as a student in November 2006. His current passport was granted to him in [2013] by the [Nepali Mission] in [Australia].

10. The applicant claimed that he left Nepal for safety reasons as he feared harm from the Maoists and those who supported them. The applicant claimed that he always supported the monarchy and was active in telling people his political views. The applicant claimed that he tried to persuade his fellow villagers to support the monarchy and held a public awareness program in his village in which he spoke out about the importance of the monarchy.

11. The Maoist YCL gave the applicant a warning that they would torture and kill him, after which, the applicant went into hiding. The applicant claimed that he could be killed at any time and, although he went to the police when he received the warning, they told him that they could not provide him with 24-hour security. The applicant claimed he was in hiding every day and lived in constant fear of persecution whilst he was in Nepal. The applicant claimed that members of his family continue to urge him not to return to Nepal due to a fear that he would be harmed or killed by the Maoists. The applicant stated that if he returned to Nepal he would defend his political views and demand reinstallation of the monarchy and oppose his political opponents.

12. The applicant additionally stated that he feared persecution as a westernised and secularised returnee from Australia and would be regarded as an infidel due to his time in Australia.

13. The applicant claimed that the authorities in Nepal had limited resources, were corrupt and weak and would not be able to protect him.

14. The applicant indicated in his visa application form that he would be providing a detailed written statement at a later time. No such statement appears on the Department’s file.

    Protection visa interview

15. 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.

16. At the interview, the applicant stated that he completed the visa application forms himself and was aware of their contents.

17. The applicant was asked about the written statement foreshadowed in his visa application form. The applicant responded that he did not have a statement as he was unable to get information from as far back as 2006.

18. The applicant told the officer that before coming to Australia he lived in his [Relative A’s] home in [Town 1 in] Kathmandu from the age of [age] until he came to Australia in 2006. The applicant confirmed that he was raised by his [Relative A]. The applicant stated that [Town 1] was about a [distance] from the city centre.

19. The applicant confirmed that he returned to Nepal for about [number] weeks in 2012 because his [relative] was sick. During this visit, the applicant stayed his [relative’s] village in eastern Nepal and with his mother in his home village in Jhapa. The applicant spent a total of about five days in Kathmandu at the beginning and end of the trip. The applicant returned in 2013 for [a family] wedding. On this occasion, the applicant spent one day in Kathmandu then returned to his mother’s village. Before leaving, he spent another two days in Kathmandu.

20. The applicant claimed that he was a member of the RRP in Nepal but not a formal member. The applicant explained that he was doing community or social work for the party. The applicant described his work as handing out pamphlets, attending rallies and finding young people who wanted to join the party. The applicant estimated that he started doing this type of work in 2003. The applicant said he stopped doing this work for a period in 2004 as he was “not finding any results”. In around January 2006, the applicant resumed his activities for the party. The applicant described his activities as involving finding young people who wanted to know about politics, supervising a group of about 30-40 people, and printing flags, pamphlets and T-shirts.

21. The applicant described the ideology of the RPP as involving nationalism, constitutional monarchy, democracy and freedom. The applicant stated that the party separated in 2006. Around the time the applicant was working in the field, the president was Kamal Thapa. After the split, the applicant started working for RPP-N. The applicant claimed that his activities then included attending seminars, finding people to support the party and paying people on the street to look as though they were supporting the party. The applicant stated that every day he was on the street working for the party.

22. The applicant stated that he was threatened many times and received two or three phone calls from unknown persons in February or March 2006. The applicant said he was never physically harmed apart from being grabbed in the street a few times after June or July 2006. The applicant said he was grabbed, put in a corner and warned to stop working. The applicant could not say who grabbed him but he knew they were members of the communist rebels in [Town 1].

23. The applicant was asked about the public awareness program in his village. The applicant said that after finishing high school he went back to his village, [Village 1], and stayed with his mother for a couple of months and realised they needed political change and needed young people to join the party. The applicant was involved in the program for about a month before returning to Kathmandu.

24. The applicant was asked about the threat from the YCL mentioned in his visa application. The applicant said he was threatened in 2006. The applicant was asked whether it was the YCL who made the telephone threats. The applicant responded that after being grabbed by the YCL he assumed the phone threats were also from the YCL. The applicant was asked to be more specific about the threats. The applicant said he was threatened with being kidnapped, told not to work, and warned he would be harmed. The applicant said his mother wanted him to stop politics and go overseas to study.

25. The applicant was asked about his claim to have gone into hiding. The applicant stated that he was hiding in his mother’s village in [Village 1] after June or July 2006. The officer noted that the applicant had claimed earlier in the interview that he had lived in Kathmandu up until the time he came to Australia. The applicant stated that he maintained contact with Kathmandu while he was in hiding in [Village 1]. The applicant explained that the document process for his visa application was in Kathmandu. The applicant said he travelled two to three times a month to Kathmandu from [Village 1] for the last two months he was in Nepal.

26. The applicant stated that he had no documentary evidence of his political activities in Nepal because he had to destroy everything.

27. The applicant was asked about his claim to fear harm as a secularised and westernised returnee. The applicant stated that the people he worked with in the RPP may persecute him because he quit and went to Australia. The applicant was asked whether he had any evidence to support this claim. The applicant stated that he had seen that people who returned from overseas were not trusted.

28. The applicant stated that he still believed Nepal needed a King.

29. The applicant was asked whether he was harmed on either of the two occasions he returned to Nepal. The applicant stated that he did not see any friends whilst there and just went in and out of the country.

30. The applicant was asked why he waited more than seven years after arriving in Australia before lodging a protection visa application. The applicant responded that he came on a student visa and studied for three years and then worked. The officer put to the applicant that if he was being threatened in Nepal, it would be reasonable to expect that he might apply for protection at the first opportunity. The applicant responded that he had paid so much money for his course and he thought working as [an occupation] would be a good opportunity for him. The applicant said he then met the requirements for permanent residency. The applicant said he wanted to stay in Australia and did not want to go back to Nepal because there was still fighting.

31. The officer noted that the applicant had returned to Nepal on two occasions, once for [number] weeks and on the second occasion for [fewer] weeks. The officer put to the applicant that this was not consistent with his claims. The applicant said he was in and out of the country and staying in a remote place where no political parties were active.  When it was noted that the applicant had spent time in Kathmandu, the applicant stated that his [Relative A] had moved to a different place.

32. The applicant’s immigration history was discussed. The officer put to the applicant that his immigration history suggested that he wished to pursue permanent residence in Australia and he had manufactured his protection claims to secure that end. The applicant stated that he came to Australia as a student and his goal was to gain permanent residence but it was also true that he had been involved in politics. The applicant realised he could not go back to Nepal. None of his family was now living in Nepal. If he went back, he could not get a job. The applicant said he had paid so much money and done everything he could to stay in Australia.

    Review application

33. At the time he applied for review, the applicant submitted to the Tribunal a copy of the delegate’s decision record. No further evidence was submitted prior to the Tribunal hearing.

34. Amongst other things, the delegate’s decision record sets out the applicant’s immigration history. According to the record, the applicant arrived in Australia in November 2006 as the holder of a [student] visa. In December 2009, the applicant applied for a [different temporary] visa, which was granted in December 2011. In March 2012, the applicant departed Australia, returning [in] May 2012. In September 2012, the applicant applied for a [permanent] visa. The applicant again departed Australia for a period of approximately one month in January 2013. In August 2013, the applicant’s skilled visa application was refused. The applicant sought review of the decision to refuse to grant him a [permanent] visa but the Migration Review Tribunal (MRT) found that it lacked jurisdiction to conduct a review. In December 2013, the applicant commenced an application for judicial review of the MRT decision and, in March 2014, his application for judicial review was dismissed. On [a date in] April 2014, the present protection visa application was made.

    Tribunal hearing

35. The applicant appeared before the Tribunal on 15 June 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

36. The applicant told the Tribunal that he applied for a protection visa for two reasons - the group he was affiliated with and his nationality. Asked to explain what he meant by this, the applicant told the Tribunal that he was very active in the RPP and had to leave Nepal because whilst working in the field for the RPP he had many fights and arguments with other people. The applicant stated that he was a monarchist and believed there should be a king and queen.

37. The Tribunal asked the applicant about the significance of his nationality. The applicant responded that he belonged to an indigenous Nepalese ethnic group and believed in the monarchy. The Tribunal asked the applicant whether he had any particular fear arising from his ethnicity. The applicant said he had no fear arising from his membership of an indigenous ethnic group but said he had lots of problems in 2002, 2003 and 2006 because he was a monarchist.

38. The Tribunal asked the applicant where he had lived in Nepal before coming to Australia. The applicant said he was from [Village 1 in] Jhapa in the Eastern part of Nepal. Asked whether he had always lived there, the applicant said he attended boarding school in Kathmandu from the time he was [age] years old. The applicant said he lived in Kathmandu until 2005 when he had to go back. The Tribunal noted that during the protection visa interview, the applicant had given evidence that he had been living in Kathmandu with his [Relative A] and was brought up by his [Relative A]. The applicant agreed this was the case, explaining that he lived with his [Relative A] in [Town 1] during holidays.

39. The Tribunal asked the applicant where he lived after he finished his education. The applicant responded that he went back to [Village 1]. The Tribunal asked the applicant how long he remained in [Village 1]. The applicant stated that he started his political career in [Village 1] after meeting some people there then moved back to Kathmandu in about 2000. The Tribunal asked the applicant what year he finished his high school education. The applicant responded that he finished his education in [year]. The Tribunal asked the applicant roughly how much of his time was spent in Kathmandu and roughly how much of his time was spent in [Village 1] after he finished high school. The applicant responded that he normally went to Kathmandu for one or two months. Asked whether he had worked or studied after completing high school, the applicant responded that he was a full-time fieldworker for the RPP and had commenced a [subject] course but was unable to complete it. The applicant told the Tribunal that the course was in Kathmandu and he had completed two of six semesters.

40. The Tribunal indicated to the applicant that his evidence as to his activities and where he was living and spending his time after finishing high school was unclear. The Tribunal noted that in his protection visa interview the applicant had given evidence that he had lived in Kathmandu up until the time he left for Australia. His evidence at the interview did not suggest that he had spent significant periods of time in [Village 1] after high school. Asked whether he could be any clearer about what he did with his time and where he was living after high school, the applicant responded that he normally lived with his [Relative A]. In [Village 1], he had done some work with the RPP but he maintained a connection with Kathmandu.

41. The Tribunal asked the applicant how he became involved with the RPP. The applicant responded that he believed in the King and within his ethnic group there was also a king. For peace and the prosperity of the nation he believed there should be a king. The applicant said he also believed in Hinduism. The Tribunal asked the applicant about his first encounter with the RPP. The applicant responded that the situation in [Village 1] was not stable and the Maoists were active. To make the place stable, he believed there should be one political stream. The applicant felt that instead of wasting time in a war it was better to follow the King. The Tribunal told the applicant that it wanted him to talk about his own personal experiences and tell it how it happened that he became a member of the RPP. The applicant responded that the first thing he did for the RPP was to gather supporters. He had to distribute money to get supporters. The Tribunal told the applicant that it was not asking about his activities with the RPP but wanted to know how he first became a member. The applicant responded that it was because of his friends. Asked to elaborate, the applicant said his friends were sick of war and did not believe in war. He believed there should be one powerful party and two of his friends found followers for the RPP and he became involved in their activities. Asked how he knew these friends, the applicant responded that they were friends from his village. The Tribunal asked the applicant how he came to be involved in their work with the RPP. The applicant responded that they let him help with their gatherings and programs. The Tribunal asked the applicant what kinds of programs and gatherings he was involved in. The applicant responded that they were political programs or gatherings and his role was to gather people and discuss the party’s principles.

1. The Tribunal put to the applicant that it was trying to get a picture of how he first became involved with the RPP and was finding his evidence quite vague. The Tribunal asked the applicant whether he could say anything more about how he first became involved with the RPP. The applicant responded that at the time, all the parties were trying to find supporters and he also wanted to find a party. The Maoists were pressuring people to join their group and engage in militia training. Within his own party, the applicant’s job was to find supporters. There were lots of jobs, both small and big. They were always fighting with the Maoists who had a lot of power at the time. The Tribunal told the applicant that it still did not really understand how he first became involved with the party. The applicant stated that he wanted to join a group that believed in discussion and not war. He did not want to join a party that believed in war, he wanted to join a party that believed discussion. The situation at the time was such that he had no choice but to involve himself with the party. The applicant said he had no documentary evidence of his political activities.

2. The Tribunal told the applicant that it was not interested at this point in why he joined the party or what his activities with the party were but it wanted to know how he joined the party. The applicant told the Tribunal that those working for political parties were like a gang who wanted people to be involved in kidnapping, extortion and to follow their ideologies. The applicant said people in his group were involved in stealing, extortion and kidnapping but he was not because he was very young and still physically small. He normally just did easy tasks for the party.

3. The applicant told the Tribunal that he initially joined the party in [Village 1] but was then given connections to the party in Kathmandu. The applicant said he did work for the party in both locations. The applicant denied that he was a formal member of the party and said he had no documents but was in their group. The applicant stated that he used to collect money from businesses and shops and pressure people. By working in the field for the party, he earned lots of enemies.

4. The Tribunal asked the applicant whether he worked for the RPP continuously from the time he left high school until the time he left for Australia. The applicant stated that in 2004 or 2005 he began to find his work difficult and was targeted by other people and so did not continue his work. Asked what he did in the period that followed, the applicant responded that he was living in [Village 1] but would still go to Kathmandu for a couple of weeks at a time. At the time, many people were going overseas and the applicant met with an agent and commenced the process of applying for an Australian visa. The Tribunal noted that the applicant’s student visa application was not lodged until September 2006. The applicant responded that from the beginning of 2005 he was involved in the process of collecting the necessary documents from [Village 1] and getting translations in Kathmandu.

5. The Tribunal asked the applicant why he decided he wanted to leave Nepal at the beginning of 2005. The applicant said the main reason was the threats. The applicant did not know whether it was for political or personal reasons but he used to receive missed calls and was threatened. The applicant decided it was better he discontinue his political activities and go overseas. The Tribunal asked the applicant whether he resumed any political activities before going to Australia. The applicant responded that he did not.

6. The Tribunal noted that the applicant’s evidence to the Tribunal had been different to the evidence he had given at the departmental interview. At the interview, the applicant had claimed to have restarted his political activities at the beginning of 2006. The applicant had claimed that he was receiving telephone calls and threats in around February or March 2006 and was also grabbed in the street a few times in 2006. In contrast, the applicant had given evidence at hearing that he stopped his political activities in 2004 or 2005 and, at the beginning of 2005, he had commenced the process of applying for an Australian visa. The applicant had told the Tribunal that he had not resumed any political activities after that time. In response, the applicant stated that he had always had difficulties remembering dates and names and he had tried his best to give accurate evidence. The Tribunal noted that the contradictions in his evidence did not involve specific dates or names but involved differences in his activities over periods of several years. The applicant responded that in 2004 he started to feel unsafe and started gathering documents. He had to travel to [Village 1] to obtain valuations for his property and this process alone took several months. It took 5 to 6 months from the time he stopped his fieldwork to the time he finished gathering his documents. Although he was no longer involved in the party’s activities he pretended he was still involved with them to keep himself safe.

7. The Tribunal asked the applicant to tell it more about the calls and threats he had received. The applicant told the Tribunal that it was common for the leaders of parties to threaten each other but it was unusual for a low-level worker like himself to receive phone calls. The applicant received missed calls two to three times over a period of a couple of months but did not take this seriously. The applicant then started to be abused and threatened and told not to continue his work. The Maoists were very active in [Town 1] at the time. The applicant was unsure whether the threats were personally or politically motivated but speculated that perhaps he was targeted because he knew about who had taken money from whom. The applicant stated that initially he was harassed over the phone but later two or three people came and physically harassed him. Asked to elaborate on how he had been physically harassed, the applicant stated that two people came and grabbed him and threatened him and said he was not going to live and that they would do this and that to him. Asked where this incident occurred, the applicant responded that it was in Kathmandu, in [Town 1]. Asked whether he was at home at the time, the applicant stated that he was not in his house but in the [Town 1] area.

8. The Tribunal asked the applicant whether he sought the assistance of police once he started to receive these threats. The applicant said he did not go to the police because the situation in Kathmandu was very bad at the time and he had been warned not to go to the police. The Tribunal noted that the applicant had claimed in his visa application form that, after receiving a threat from the YCL, he had gone to police who told the applicant that they could not provide him with 24 hour security. The applicant responded that he was not sure but he knew the police couldn’t do anything. The Tribunal put to the applicant that the difference in his evidence as to whether he did or didn’t go to the police caused it to question whether he had provided truthful evidence about his activities in Nepal. The applicant said that most likely he had not made a formal, written complaint to the police.

9. The Tribunal also noted that the claim in his protection visa application that he was in hiding every day after he received the threat from the Maoists did not sit easily with his evidence to the Tribunal. The applicant responded that this was why he stopped being involved in any political activities. The Tribunal noted that the applicant had claimed that although he was not active he was still pretending to be involved with the party. The applicant had also told the Tribunal that he was travelling back and forth between [Village 1] and Kathmandu obtaining documents for his visa application. The applicant stated that he just went and got his documents then came back and didn’t talk to anyone.

10. The Tribunal asked the applicant whether he continued to have an interest in Nepalese politics. The applicant said he had not been involved in any politics in Australia but was interested in the process of drafting the new constitution and what was going on in Nepal. The applicant stated that if he were to go back to Nepal he would not join any political parties but may still have an interest in politics. The Tribunal noted that the applicant had claimed in his visa application forms that if he went back to Nepal he would defend his political views, demand reinstallation of the monarchy and oppose his political opponents because he was a hard-core monarchist. The applicant responded that he still believed in the King and wanted the betterment of his ethnic group.

11. The Tribunal asked the applicant what he thought might happen to him if he were to go back to Nepal. The applicant responded that the situation in Nepal had changed over time and there were fewer people who supported King now. A younger generation had become involved in politics. The applicant said he had nobody in Nepal to support him if anything happened as all of his family were now living overseas. People who were involved in extortion and collecting money in the past were now rich and owned many properties. The Tribunal asked the applicant who he thought may threaten or harm him. The applicant responded that people who knew about his past political activities were now in power. The Tribunal put to the applicant that it was still unclear who he thought may harm him and why. The applicant responded that it was all for personal reasons.

12. The Tribunal put to the applicant that it had been having some difficulty getting a clear picture of his past activities in Nepal and who he now feared harm from. The Tribunal noted that there were other matters which also caused it to question whether the applicant faced a real chance of risk of serious or significant harm in Nepal. One of those matters was the applicant’s delay in applying for a protection visa. The Tribunal noted that the applicant arrived in Australia in late 2006 and had made applications for temporary and permanent skilled visas and commenced reviews in relation to the decision to refuse to grant him a permanent skilled visa in the MRT and Federal Court. It was not until his judicial review application was dismissed that the current application for a protection visa was made. Considering that the applicant was claiming that he left Nepal because he was afraid due to threats and abuse he had received in relation to his political activities, it seemed unusual that the applicant had not sought protection sooner.

13. The applicant responded that he arrived in Australia in 2006 and studied until 2008. The applicant was eligible to apply for a [different temporary] visa. In the beginning, the applicant’s parents were still in [Village 1] but later, due to political instability, the applicant’s [sibling] and father went to [Country 1]. The applicant’s father advised him not to go back to Nepal due to the political instability and the applicant did everything he could to stay in Australia. When the applicant returned to Nepal after his [permanent] visa application was refused, his parents and [sibling] had gone to [Country 1]. The applicant found that he was unable to manage all of his family’s properties and he did not feel secure. For this reason, he lodged the appeal and wanted to stay in Australia. The applicant explained that his family owned a lot of property because his father had been employed in [Agency 1]. The properties were not held in the applicant’s name but he had responsibility to look after them. The applicant was concerned that he may have personal difficulties related to his past. The applicant said that the main reason he feared going back to Nepal was that people from whom he had taken money from in the past may still be running businesses and may continue to hold a personal grudge. There was a false rumour that the reason the applicant’s father was able to own his properties was because the applicant had taken money from other people. The applicant said he had no place to live apart from his own house and if he were to go there he would have problems.

14. The Tribunal noted that in his visa application forms, the applicant had declared that his parents, [and siblings] were all residing in Nepal. The applicant responded that he had meant that his family still held Nepalese passports but they had been able to go to [Country 1] because of his father’s work for [Agency 1]. The Tribunal asked about the applicant’s [Relative A], noting that on the passport submitted to the Tribunal, the applicant’s [Relative A] had been listed as his next of kin. The Tribunal asked whether the applicant could live with his [Relative A] in Kathmandu if he was concerned about difficulties in his home village. The applicant responded that when he lived with his [Relative A], he was single but now he is married. The applicant said he would be unable to live with his [Relative A] for a long period of time, only a couple of weeks.

15. The Tribunal asked whether the applicant’s father’s [employment] with [Agency 1] provided an explanation for why he was able to own his properties. The applicant responded that not all those who served with [Agency 1] were able to own property. Most were still poor. People thought that the applicant was able to make money because of his political activities and by demanding money from people. The applicant said he could not prove that he did not do this. The Tribunal noted that the applicant had claimed that the properties were held in his father’s name. It had been more than 10 years since the applicant had arrived in Australia. The Tribunal asked the applicant why, in those circumstances, the applicant was still concerned for his safety. The applicant responded that those people were still doing business and they wanted their money back from him.

16. The Tribunal put to the applicant that the fact that he returned to Nepal for lengthy periods in 2012 and 2013 suggested that he might not have been concerned for his safety in Nepal. The applicant responded that he did not go back to Nepal for six years. During the first visit, the applicant stayed about [distance] away from [Village 1] in a remote, hilly region where there was no political or government activity. The 2013 visit was for [a family] wedding. The applicant was afraid that people would think his family had lots of money. The Tribunal noted that the applicant’s evidence at the protection visa interview had suggested that he had spent some time in [Village 1] during his first visit and spent most of his time there during his second visit. The applicant responded that the political situation at the time was not the same and he was discreet. The applicant said he would only leave the home early in the morning and come back at night time and he avoided socialising.

17. The Tribunal put to the applicant that it had to consider whether, if the applicant did face a real chance or risk of harm in [Village 1], he could safely and reasonably relocate to Kathmandu. The applicant responded that it was very expensive to live in Kathmandu and he was not financially capable of surviving there. He was unable to sell his properties because they were held in his father’s name and his father no longer lived in Nepal. The Tribunal noted that the applicant had lived in Kathmandu for much of his life and had an [Relative A] there. The applicant had suggested that his family was relatively wealthy and he had relatives living in [Country 1]. In those circumstances, it was not clear that it would be unreasonable for the applicant to live in Kathmandu. The applicant stated that his parents received a pension and did not work and if he had to go back to Nepal he would have to work and that would be very hard. The Tribunal noted that the applicant had an Australian tertiary qualification and had completed his secondary education in Nepal. The applicant responded that if he wanted to work in Kathmandu he would have to become involved in politics again. The applicant stated that he would have to align with a political party and would be dragged back into politics.

18. The Tribunal discussed with the applicant the country information set out below noting that the political environment in Nepal appeared to have changed significantly and there were fewer incidents of violence. The applicant responded that he did not know what would happen to him and that he was grateful to the Australian government for allowing him to remain in Australia for this long.

19. The Tribunal noted that the applicant had claimed that he would have difficulties in Nepal because his family owns property and he would be perceived as wealthy. The Tribunal also noted that in his protection visa application the applicant had claimed that he would be targeted because of the period of time he had been in Australia. The Tribunal put to the applicant that the DFAT Country Report for Nepal suggested that businesses in Nepal were often approached for political donations but that individuals were ordinarily free from this type of harassment. The same report noted that there was a large movement of people in and out of Nepal each year. DFAT had been unable to identify any particular problems faced by returnees and advised that they were unlikely to suffer from any social stigma. The applicant responded that he had seen people who had been the victims of extortion. If they did not provide money, the demands on them increased. The applicant feared he would be a victim of the same treatment and said that this was the reason why he had applied for a protection visa.

20. When asked, the applicant stated that there was nothing more he wished the Tribunal to take into account.

    Country information

    Political environment

21. The DFAT Country Report for Nepal, dated 21 April 2016, provides the following information regarding the political environment in Nepal:

    Nepal transitioned from a constitutional monarchy to a federal democratic republic in 2008 and operated under an interim constitution until the new Constitution came into force on 20 September 2015. The previous Constituent Assembly was transformed into a legislature under the 2015 Constitution and continues until a new federal parliament is elected.

    …

    A diverse and competitive array of political parties operates in Nepal, though the system has faced considerable instability in recent years. Unlike the 1990 constitution, the 2015 Constitution has no limitation on parties formed along ethnic lines. Prior to the 2013 elections, the political environment suffered instability, including some violence by supporters linked to the main Maoist party on members of other parties, and on people who allegedly informed on the Maoists during the civil war. Supporters linked to the other leading parties were also accused of attacking supporters of the Maoists during 2013.

    At the time of publication, the situation has significantly changed. Nepal’s lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected.

    DFAT assesses that while violence has occurred in the aftermath of the release of the new Constitution and Maoist/and disillusioned splinter groups continue to threaten a return to bandhs and or violence, the overall risk is low.

    Rashtriya Prajatantra Party (RPP) Rashtriya Prajatantra Party-Nepal (RPP-N) and Rastriya Janshakti Party (RJP)

22. The RPP is a conservative party formed by former members of the Panchayat system in the early 1990s.[1] The party split in the 1990s, only to reunify in 2000. However, the RPP once again bifurcated in 2005 after some senior members formed the Rastriya Janshakti Party (RJP). What was left of the RPP further sub-divided in 2006 after the parent party signed the Comprehensive Peace Agreement. Pro-King dissidents in the RPP resigned and formed the RPP (N).[2] In 2012, the RPP and RJP held unsuccessful reunification talks. The RPP (N) declined an invitation to participate.[3]

    [1] The RPP website states that it was formed in 1990. The Political Handbook of the World states that it was formed in 1992. Rashtriya Prajatantra Party n.d., About RPP < Accessed 17 July 2007 <Attachment> (current website, with identical text, is located at URL < Lansdorf, T (ed) 2012, ‘Nepal’, in Political Handbook of the World, CQ Press, Washington DC < Accessed 29 April 2013 <Attachment>

    [2] Lansdorf, T (ed) 2012, ‘Nepal’, in Political Handbook of the World, CQ Press, Washington DC < Accessed 29 April 2013

    [3] ‘RPP, RPP-N and RJP unification talks fail’ 2012, Republica, 4 September

1. The ICG reported in 2012 that both the RPP and the RJP now “accept that Nepal should remain a republic”.[4] The RPP-N, however, continues to advocate the restoration of Nepal as a monarchy and a Hindu state.[5]

   [4] International Crisis Group 2012, Nepal’s Constitution (II): The Expanding Political Matrix, Crisis Group Asia Report N°234, 27 August, p.22

   [5] According to The Political Handbook of the World, “[a]t the inaugural session of the Constituent Assembly on May 28, 2008, the RPP (Nepal)’s four members cast the only votes against forming a republic. The right-wing party continued to favor popular referendums on restoring the monarchy and on whether Nepal should be a secular or a Hindu state”: Lansdorf, T (ed) 2012, ‘Nepal’, in Political Handbook of the World, CQ Press, Washington, DC < Accessed 29 April 2013; International Crisis Group 2012, Nepal’s Constitution (II): The Expanding Political Matrix, Crisis Group Asia Report N°234, 27 August, p.21

2. The RPP and RJP formally amalgamated prior to the Constituent Assembly (CA) elections in November 2013 to become officially known as the Rastriya Prajatantra Party (RPP).  The RPP, led by Surya Bahadur Thapa, won a total of 13 seats at the 2013 CA elections to become the sixth largest party.

3. Under the leadership of Kamal Thapa, the RPP (N) won 24 seats in total in the November 2013 CA elections to become the fourth largest party in Nepal.

4. A Kathmandu Post 8 March 2015 report indicates that, the RPP and RPP (N) ‘were in informal dialogues for merger’ and have now ‘formally started their unification process’:[6]

   Violence against RPP, RPP(N) by the Maoists

   [6] Ghimire, B 2015, ‘RPP-N, RPP ‘inch closer to merger’’, Kathmandu Post, The, 8 March, para.1 < Accessed 17 March 2015 <CXBD6A0DE3255>

5. Limited reports were located indicating that members of the RPP, RPP(N) and so-called sister organisations have been harmed by groups aligned with the UCPN-M.[7]  For example, in February 2013, members of the RPP (and other parties) were pelted with stones by unnamed pro-government groups (which at the time was led by UCPN-M Prime Minister Baburam Bhattarai) while staging an anti-government rally in Khotang district.[8]

   [7] US Department of State 2013, Country Reports on Human Rights Practices 2012 – Nepal, 22 April <

   [8] ‘Oppn cadres injured in clash’ 2013, Republica, 8 February <>

   No subsequent reports of inter-party violence between the Maoists and RPP or RPP-N have been located.

6. The South Asia Terrorism Portal’s Nepal Assessment 2015 summarises inter-party and intra-party violence during 2014. According to the assessment:

   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. … [I]t 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.

   The successful holding of elections for the second Constituent Assembly (CA) on November 19, 2013, have, in some measure, transformed the political environment of the country and diminished violent inter-party clashes. As against 22 such clashes resulting in four deaths and 167 injuries in 2013, no such clashes were reported through 2014.[9]

   Extortion and perceived wealth

   [9] South Asia Terrorism Portal 2015, Nepal Assessment 2015, para.1-2 < Accessed 8 April 2015 <CISEC96CF1246>

7. With regard to extortion and the treatment of returnees, the DFAT Country Report states:

   There are widespread reports of threats against businesses throughout Nepal. Threats such as coercion, extortion and forced donations, as well as kidnappings or coercion to join political parties, have been identified as the most common forms of mistreatment. However, credible sources told DFAT that the most common occurrence – forced donation – was generally seen as part of ‘doing business’ in Nepal. The practice reflects the intensely political nature of Nepali society and is confronted regularly by business persons. It also reflects the inability of Nepali political parties to formally and directly raise funds to support their activities. On this basis, DFAT assesses that while businesses themselves may be targeted, individual members of the private sector are ordinarily free from harassment and intimidation.

   …

   There are few publicly available sources, Nepali Government or otherwise, addressing the treatment of returnees. DFAT discussions during meetings in Nepal similarly failed to identify any general concerns about treatment of returnees, with credible interlocutors pointing to the large, efficient moment of people in and out of Nepal each year as anecdotal evidence that there were unlikely to be any systemic concerns. On this basis, DFAT assesses that returnees are unlikely to suffer any social stigma upon their return to Nepal or to suffer adverse treatment by their Government.

   Findings

8. The Tribunal has multiple, serious concerns about the credibility of the applicant’s claims.

9. The applicant’s evidence at the Tribunal hearing was confused, lacking in meaningful detail and frequently unresponsive to the Tribunal’s questioning. For example, the Tribunal spent a considerable period of time attempting to obtain evidence as to how the applicant became involved in politics and his first encounters with the RPP. The applicant’s responses appeared to be rehearsed and were often irrelevant to the questions put to him. When pressed on certain details, the applicant’s evidence remained vague and the Tribunal formed the impression that he was not talking from personal experience.

10. The Tribunal was also unable, despite repeated attempts, to form a clear understanding of the applicant’s movements, places of residence and activities following the completion of his secondary education. As recorded in the delegate’s decision, at the protection visa interview, the applicant told the departmental officer that he had lived in Kathmandu from the time he was [age] years old up until the time he left for Australia. Later in the interview, the applicant stated that he had been in hiding but still travelling back and forth between [Village 1] and Kathmandu for the last two months he was in Nepal. At the Tribunal hearing, the applicant’s evidence initially suggested that he had lived in Kathmandu from the time he was [age] years old until 2005. Later, the applicant said that he had returned to [Village 1] from Kathmandu after he completed his secondary education but moved back to Kathmandu in about 2000. When the Tribunal asked the applicant when he completed his secondary education, the applicant said it was in [year]. When the Tribunal asked the applicant roughly how much of his time was spent in Kathmandu and how much in [Village 1] in the period after he completed high school, the applicant responded that he normally went to Kathmandu for one or two months, suggesting that he was primarily in [Village 1]. However, when asked whether he had commenced any tertiary education after finishing high school, the applicant claimed that he had completed two semesters of a [subject] course in Kathmandu. When the Tribunal put to the applicant that his evidence about his activities and movements after finishing high school was unclear, the applicant provided the elusive response that he normally lived with his [Relative A] but had worked [Village 1] whilst maintaining a connection with Kathmandu.

11. The applicant’s descriptions of the phone calls, threats and physical harassment he claims to have received in Nepal in the past have been persistently vague. The applicant’s evidence as to what he thought might happen to him if he were to go back to Nepal now was equally opaque.

12. Other aspects of the applicant’s evidence to the Tribunal were inconsistent with the evidence that he provided to the Department in his visa application form and at the protection visa interview.

13. As recorded in the delegate’s decision, the applicant told the Department that he started working for the RPP in 2003 then stopped for a period in 2004 before resuming his activities in around January 2006. The applicant told the Tribunal that he stopped working for the RPP in 2004 or 2005 because he began to feel unsafe and did not resume any political activities before his departure for Australia. When the difference in his evidence was put to him, the applicant responded that although he was no longer working for the RPP he still pretended to still be involved with them. The Tribunal is not satisfied that this is a plausible explanation for the differences in the applicant’s evidence. The applicant also suggested that he had difficulty remembering dates and names. However, as pointed out to the applicant at hearing, the differences in his evidence related to his activities over a period of years and did not involve specific dates or names.

14. As recorded in the delegate’s decision, the applicant claimed at the departmental interview that he received telephone calls and threats in around February or March 2006 and was also grabbed in the street a few times in 2006 and this led him to apply for an Australian visa, which he did in September 2006, after spending a couple of months gathering the necessary documentation. The applicant’s evidence to the Tribunal was that he commenced the process of applying for an Australian visa in 2005 after he began to feel unsafe in late 2004 or early 2005.

15. The applicant stated in his visa application form that he had approached the police about the threats he had received but was told that they could not provide him with 24 hour security. At the Tribunal hearing, the applicant told the Tribunal that he did not go to the police because he had been threatened not to go to the police. The applicant was unable to satisfactorily account for this contradiction, suggesting only that he probably had not made a written or formal complaint to the police.

16. The applicant also claimed in his visa application form that he had been in hiding every day in Nepal after receiving threats from the Maoists. As put to the applicant at hearing, his oral evidence to the Tribunal appeared inconsistent with this claim insofar as he had indicated that he was travelling back and forth between [Village 1] and Kathmandu obtaining documents for his visa application for a period of more than one year, and still pretending to be involved with the RPP. The applicant’s explanation that he didn’t talk to anyone and just went and got his documents does not, in the Tribunal’s opinion, satisfactorily account for this inconsistency.

17. The applicant said in his visa application form that he was a hard-core monarchist who would demand reinstallation of the monarchy, defend his political views and oppose his political opponents if he went back to Nepal. In contrast, at the Tribunal hearing, the applicant told the Tribunal that he had not been involved in politics in Australia although he had some interest in what was going on and the new constitution. The applicant told the Tribunal that if he were to go back to Nepal he would not join any political party although he may still have a personal interest in politics.

18. The Tribunal has carefully considered whether these problems in the applicant’s evidence could be attributable, at least in part, to interpreting errors at the Tribunal hearing, noting that the applicant’s evidence at the departmental interview was given in English. Whilst the Tribunal considers it appropriate to approach the evidence with a reasonable degree of latitude, the Tribunal is not satisfied that the substance of the applicant’s evidence was materially affected by any interpreting errors given that the applicant’s evidence was coherent and responsive to the Tribunal’s questioning in relation to other matters in the course of the hearing.

19. The applicant’s immigration history also casts significant doubt over the credibility of his protection claims. Despite the applicant’s claim to have left Nepal owing to a fear for his safety as a result of threats and abuse he had received from his political opponents, the applicant did not apply for a protection visa for some seven years after his arrival in Australia. In the intervening period, the applicant applied for a temporary visa and later made an unsuccessful permanent visa application. The applicant also chose to pursue a review application with the MRT which was found to be invalid and sought judicial review of the MRT’s no jurisdiction decision.

20. The applicant’s return travel to Nepal on two occasions prior to lodging the present application also casts doubt over his claim to fear serious or significant harm in that country. The applicant’s evidence indicates that on both occasions he spent time in Kathmandu and [Village 1]. The evidence also indicates that the applicant remained in Nepal for relatively lengthy periods including [number] weeks on the first occasion and around a month on the second occasion. The applicant’s explanation that he was discreet and only left home early in the morning and came back at night time and avoided socialisation appears implausible in the context of his claimed reasons for returning to Nepal.

21. The cumulative effect of the matters referred to above is that the Tribunal remains unsatisfied that the applicant was ever involved in politics in Nepal, for the RPP or any other party. The Tribunal is not satisfied that the applicant engaged in publicity campaigns or programs, sought donations, attempted to recruit supporters or engaged in any other political activity for the RPP. The Tribunal is not satisfied that the applicant was threatened or harmed by Maoists, their supporters or any other person, over the telephone or in person whilst in Nepal. The Tribunal is not satisfied that the applicant genuinely holds any fear of being harmed in Nepal by Maoists, members of the RPP or any other person for any reason relating to his past activities. The Tribunal is not satisfied that the applicant is a hard-core monarchist or genuinely holds political opinions which align with the RPP’s ideologies. The Tribunal is not satisfied that the applicant would engage in politics if forced to return to Nepal.  The Tribunal is not satisfied that there is a real chance or risk of the applicant suffering serious or significant harm in Nepal for any of these reasons.

22. Given that the applicant was able to obtain a student visa and pay for a tertiary qualification as an overseas student in Australia, the Tribunal is satisfied that the applicant’s family owns property and may be regarded as reasonably wealthy by Nepalese standards. The Tribunal is also satisfied that it may be known, or become known in the reasonably foreseeable future, that the applicant has spent a considerable period of time living in Australia and that his parents and [sibling] reside in [Country 1]. For the reasons given above, the Tribunal is not satisfied that there is a false rumour in the applicant’s home area that his family was able to acquire their wealth or properties owing to the applicant having extorted funds from local businesspersons in the context of his past political activities. Accordingly, the Tribunal is not satisfied that there is a real chance or risk of the applicant being harmed by any person who continues to hold a grudge against the applicant for this reason.

23. The applicant’s evidence at hearing suggested generally that as a wealthy person or person returning from a significant period of time in Australia, he may suffer harm or be targeted for extortion. The applicant’s claims are not supported by the advice from DFAT in its Country Report. Whilst the Tribunal accepts that businesses in Nepal are often targeted for forced donations, the Tribunal is not satisfied on the evidence before it that there is a real chance or risk of the applicant, as a private individual, suffering this type of harm. Nor is the Tribunal satisfied on the evidence before it that there is a real chance or risk of the applicant suffering harm, as a result of his status as a returnee from Australia. For the reasons given above, the Tribunal is not satisfied that the applicant would be regarded as an ‘infidel’ or traitor by anyone in the RPP as a result of his departure from Nepal and period of residence in Australia.

24. The applicant’s evidence at the Tribunal hearing initially suggested he may fear harm arising from his ethnicity. However, after exploring the matter further with the applicant, the Tribunal is satisfied that no such claim has been made. Nor is the Tribunal satisfied that the applicant would engage in any political activities, or has in the past engaged in any past political activities, with an ethnic or nationalist overtone.

25. The Tribunal accepts that the applicant has some real misgivings about returning to Nepal. The Tribunal is prepared to accept that the applicant’s family have left Nepal and now reside in [Country 1]. The Tribunal accepts that the applicant may have some practical or personal difficulties managing his family’s properties, if he chooses to do so. Whilst the Tribunal accepts that economic conditions in Nepal are significantly less favourable than those available to the applicant in Australia, the Tribunal is not satisfied that the applicant would be unable to obtain employment or assistance from his family, including his [Relative A], to enable him to at least subsist. The applicant has suggested that if he were to work in Nepal he would feel compelled to engage in politics or align with a political party. Having regard to the country information set out above, the Tribunal is not satisfied that this would be the case in the current political environment. Even if the applicant were to enter the political fray, the Tribunal is not satisfied, having regard to the country information and the applicant’s circumstances, that this would lead to a real chance or risk of him being seriously or significantly harmed. The Tribunal is not satisfied that there is a real chance or risk that the applicant would suffer any difficulties in Nepal, financial or otherwise, amounting to serious or significant harm.

26. 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).

27. 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).

28. 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

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

    Rachel Homan
    Member

    
    
    

< Accessed 18 September 2012

Asian Human Rights Commission 2012, NEPAL: The State of Human Rights in 2012, 10 December < Human Rights Watch 2013, World Report: Nepal; Freedom House 2013, Freedom in the World – Nepal, 10 April < Amnesty International 2013, Annual Report - Nepal.