1419329 (Refugee)

[2016] AATA 3861

1419329 (Refugee) [2016] AATA 3861 (10 May 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419329

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Suhad Kamand

DATE:10 May 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 10 May 2016 at 5:03pm

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. The applicants are nationals of Nepal. They applied to the Department of Immigration (department) for Protection visas [in] July 2013. A delegate of the department refused to grant the visas [in] October 2014 and the applicants sought this Tribunal’s review of the decision. On the basis of all the evidence before it, and for the cumulative reasons given below, the Tribunal has concluded that the applicants are not persons in respect of whom Australia has protection obligations and that the decision under review should be affirmed.

2. Relevant law has been included at Appendix 1.

   Member of the same family unit

3. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse and a child. The applicants have provided documentary evidence of their marriage in Nepal, and have remained consistent in their dealings with the Department regarding their status as husband and wife. The have also provided a birth certificate issued by [an Australian] Registry of Births, Deaths and Marriages in respect of the third named applicant identifying her as the child of the first and second applicant. On the evidence before it the Tribunal accepts that the first and second named applicants are husband and wife, and that the third-named applicant is their daughter. The Tribunal is therefore satisfied that the applicants are members of the same family unit as defined by r.1.12 of the Regulations.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. While only the first named applicant has expressly advanced claims to fear serious or significant harm in Nepal, in presenting his claims he has also alluded to fears of serious harm to his wife and child. The express claims made and those arising on the evidence are that: the applicant’s father is a high profile member of the Communist Party of Nepal - United Marxist Leninists (CPN-UML) who is also distinguishable as a descendant from the “hilly areas”; as such, since the 1980s his father and family has been continuously threatened by a range of militant groups; most recently, the applicant’s father was threatened and was physically harmed on [date] May 2013 by an armed Madheshi group identified by the applicant variously as Jantantrik Terai Mookti Morcha (JTMM) “led by Rayan Mukti”, and Rajan Mukti Samuh; following this attack his father has had to flee his home in [Area1]  and is now in hiding in the hilly areas of Nepal; his father was and remains targeted for reason of his high profile as a member of the CPN-UML, his prominent position in local District politics in [Area1] , his involvement with a Citizenship Team in [the 2000’s] through which he advocated against issuing Nepali Citizenship to Madhesis, and his ethnicity as a descendant from the hills. The applicant claims that: as the son of his father he too has been threatened with harm by the same underground Madhesi groups which have harmed and threatened his father; he too has a political profile linked to the CNP-UML which heightens his risks of harm in Nepal; the family links between all the visa applicants and the applicant’s father puts them all at risk of harm by the same Madhesi groups which have targeted his father.

5. In giving their oral evidence to the Tribunal the first and second applicant also stated that they worry about exposing their [age] year old daughter to the unrest and violence in Nepal, including the potential for kidnapping and other crimes. The Tribunal has considered this and the above claims below.

   Delegate’s decision

6. The delegate was not satisfied that the applicants are persons in respect of whom Australia has protection obligations. The delegate’s decision was based primarily on a finding that the applicants have a right to enter and reside in Australia. In making that finding, however, some adverse observations regarding the credibility of the claims made was noted. The applicants provided the Tribunal with a copy of the delegate’s decision record.

   Issues before the Tribunal

7. The Tribunal must assess whether: it is satisfied of the credibility and truth of relevant aspects of the claims and evidence advanced; on the evidence before it, it is satisfied that any of the applicants face a well-founded fear, based on a real chance, of persecution involving serious harm for a Convention reason, if they return to Nepal. If the Tribunal is not satisfied that any of the applicants are owed Australia’s protection under the Refugee’s Convention, it must then consider whether they are owed Complementary Protection. That involves an assessment of whether there are substantial grounds for believing that any of the applicants face a real risk of significant harm in Nepal for any of the reasons claimed or arising on the evidence.

8. The Tribunal’s assessment is informed by the Department’s file relating to the applicants, including: an audio recording of their Department interview held [in] May 2014, which the Tribunal has listened to; a copy of their Protection visa application form and documents provided in support of that application and the review application, including a written statement dated [in] July 2013 (2013 Statement) and a range of documents from Nepal, detailed and considered below. The Tribunal’s assessment is also informed by its detailed exploration of the claims made when the applicants appeared before it by video link on 17 March 2016. The Tribunal took evidence from both the first and second applicant on that occasion. Their evidence was provided to the Tribunal with the assistance of an interpreter in the English and Nepalese languages. No issues regarding the capacity of the applicants to participate in the application or review process was advanced at any stage, although the Tribunal is mindful of the very young age of the third named applicant whose claims were advanced through her parents. An audio recording of the applicants’ Tribunal appearance is available. The Tribunal has also had regard to other material available to it from a range of sources, referred to, where relevant, in its considerations below.

   Assessment of the applicant’s claimed circumstances

9. Having had the opportunity to discuss: the applicants’ claims and evidence with them during their Tribunal appearance; and reflect on that evidence in the context of all the evidence before it, the Tribunal has significant concerns regarding the truth of central aspects of the claims and evidence advanced. While those concerns are not singularly determinative of the credibility of the claims made overall, cumulatively, they cast a level of doubt on the reliability of the applicants as truthful witnesses that the Tribunal cannot be and is not satisfied: that central aspects of the applicants’ circumstances in Nepal are as they have claimed; and/or that the applicants are persons in respect of whom Australia has protection obligations.

10. Notwithstanding its significant concerns regarding the truth of multiple aspects of the applicants’ claimed circumstances in Nepal, some aspects of their circumstances have been maintained consistently over time, while others are supported by independent records, including records kept by the Department. Of the information before it, the Tribunal accepts that the applicant was born in [year] in [his home town in] [his home area], Nepal and that he resided in [Area1] of the Terai region of Nepal until around 1999, when he was around [age] years of age; in 1999 he moved to Kathmandu where he pursued his studies; he continued to live in Kathmandu from that time until leaving Nepal for Australia in July 2009; he married the second applicant in 2007; the applicant arrived in Australia with the second applicant [in] July 2009 holding a Student visa, the second applicant being a dependent visa holder; the third applicant was born in [Australia]; the applicant’s Student visa was cancelled [in] 2011 due to him being recorded as having an unsatisfactory level of attendance and course progression and for non-payment of fees; the applicant was recorded as having last studied [in] September 2010; the second applicant’s associated dependant Student visa was consequentially cancelled; the applicant applied for a revocation of cancellation [in] August 2011; a delegate of the Department refused to  revoke the cancellation [in] October 2011; the applicant lodged an appeal with the then Migration Review Tribunal (MRT) which affirmed the decision to not revoke the cancellation on 17 January 2013; the applicant sought Ministerial intervention under section 351 of the Act [in] February 2013 which received a negative outcome [in] June 2013; the applicants lodged their Protection visa application [in] July 2013[1].

    [1] The above immigration history is detailed in the delegate’s decision record at section 3 of that decision.

11. Regarding the claims made for Australia’s protection, however, the Tribunal finds the evidence advanced problematic in multiple respects. The first applicant’s claims were first advanced in his Protection visa application form. They were detailed further in his 2013 Statement as well as in his oral evidence to the Department and Tribunal.  

12. The applicant’s written claims are to the following effect: none of the applicants have personally experienced any harm in Nepal in the past; however [in] May 2013 the applicant’s father “became the victim of their cruelty… because of his mobility, perspective towards federalism and association to CPN (UML)”[2]; prior to this his father had received regular threats and intimidation “just because he is of hilly origin living in Terai”[3]; due to family links the applicant fears similar mistreatment towards himself and his family should they return to Nepal, noting that “we are the people of different origin”[4]. He adds that “there is no doubt that they drove away my parents, locked my house and confiscated the land, so if we go back definitely we become the victim of their cruelty and inhuman treatment. Moreover there is a risk of life”[5]. He claims that, in targeting his father, the Madhesi groups have also expressly threatened to harm all members of his family.

    [2] Folio 45b, [File number]

    [3] ibid

    [4] ibid

    [5] Ibid

13. Regarding who he thinks may harm him if he returns to Nepal the applicant states “it is clear that Jantantrik Terai Mookti Morcha (JTMM) led by Rayan Mukti is influential and it is more stronger as 15 rebels groups integrated and merged under Rayan Mukti. So definitely this group harm if we go back(sic)”[6]. He claims that he will be harmed in Nepal by Madhesi underground groups because of “prevailing lawlessness, anarchy and political instability and volatile circumstances”; “growing communial (sic) feeling and estrangement among the communities (specially between the people of hilly origin or Terai origin)”; “weak presence of the administration and their psychologically defeated morale”; intensification of underground activities, with “more than one dozens rebels got integrated  for their common goal”  and “issued a warning and threat to the Administrative officers, local bodies and police station to get displaced within two weeks. Likewise to vacate the settlement area around the government offices”; and because “I am the member of the victim family”[7].

    [6] Ibid, folio 44

    [7] Ibid, folio 44

14. He states that he does not trust the authorities to provide adequate protection because, amongst other reasons, the underground groups he fears are based in the Terai and can simply cross the border to flee the authorities.[8]

    [8] Ibid, folio 44b

    General credibility concerns

15. The applicant claims that his father has had a high political and personal profile opposed to the Madhesi agenda in Nepal for many years, and that this profile was most well known in [Area1], Eastern Terai, where he occupied positions of leadership since he moved there in around [year], when the applicant would have been aged around [age]. Specifically, it is claimed that the applicant’s father became a member of the CPN-UML in [year]. He participated in a range of events as an active member of the CPN-UML which, according to the applicant’s 2013 Statement, resulted in his father’s arrest and detention in Nepal on multiple occasions[9]. The applicant’s statement continues that, in around the year 2000 Maoists started pressuring his father to support their cause. Because his father resisted their pressure and maintained his loyalty to the CPN-UML, the Maoists turned their focus to the applicant. Due to regular visits from Maoists the applicant claims that he left his home in [Area1] and continued his studies in Kathmandu. He remained in Kathmandu from [year] until leaving for Australia in July 2009. He told the Tribunal that, in this time, he returned to visit his family in [Area1] only twice as he feared harm from Maoists at that time. He told the Tribunal that he no longer fears harm from Maoists.

    [9] Ibid, 2013 Statement, folios 50-57

16. He also claims that, in around 2006 his father became part of [an organised group] tasked with issuing/recommending citizenship to intending Nepali citizens. This [organised group] was comprised of representatives from each major political party, including Madhesi groups. The applicant’s father was part of the Team as a representative of the CPN-UML. As part of that Team his father advocated against issuing Nepali citizenship to Madhesis. This raised his adverse profile amongst underground Madhesi groups. The applicant’s oral evidence to the Tribunal was that his father was part of this [organised group] for around five to [six months]. His 2013 Statement goes on to say that, fearing imminent attack from Madhesi groups for his stand regarding citizenship his father resigned from [a position in] [Area1]. In his oral evidence to the Tribunal the applicant said that his father resigned in around [year range], some [number] years after his participation on the [organised group]. He did not identify his father or any member of his family being harmed in any way after 2006 and before May 2013.  He claims that despite his father’s resignation his father was attacked by Madhesi groups in May 2013 anyway. He claims that, before this time, on a repeated basis, his father received threats to his life and family for the political position he took in support of the CPN-UML and against Madhesi interests. He was not, however, harmed physically in connection with such threats until May 2013.

17. Noting that the applicant’s claims reveal a long history of threats and intimidation against his father and family in Nepal, including before the applicant left Nepal for Australia, the Tribunal asked the applicant why he came to Australia in July 2009. He responded that he came to study, but his main motive in coming here then was to save his life and seek protection. However, as discussed with the applicant, he did not apply for Australia’s protection until July 2013, some 4 years after he arrived in Australia, despite his Student visa being cancelled in January 2011. Regarding this delay he offered the Tribunal that he thought things in Nepal would calm down but they didn’t. As discussed with the applicant and noted in the delegate’s decision and the applicant’s 2013 Statement, since his visa cancelation in January 2011 he sought to have that cancelation revoked, he sought review by the MRT and sought Ministerial intervention. Yet, despite having the resources and knowledge to engage in multiple process to remain in Australia, he did not apply for Australia’s protection until July 2013, raising questions as to why, if his family circumstances in Nepal were as he has claimed at the time he left there in 2009. In response he repeated that he was not aware of the circumstances of Nepal and thought things would improve. He said that there were elections in 2008 and he thought things would get better, but then things got worse. However, given the ongoing and personal nature of the threats he claims have been made against his family on an ongoing basis, the Tribunal considers the applicant’s response to be unconvincing.

18. Noting that the applicant’s claims to fear harm in Nepal are based primarily on being a family member of his father, the Tribunal also explored with the applicant his family circumstances in Nepal. The applicant’s evidence to the Tribunal was that he has a [sister] aged [age] who lives in [Nepal] with her in-laws and child aged [age]. He last spoke to his sister four or five months ago as the area she lives in is very remote. He gave no indication that his sister has been harmed or threatened in any way.

19. Regarding his parents, he said that, after his father was attacked in May 2013 he and his mother moved to live with [an agency], where they stayed around a year and a half. He said his father now lives in the hilly areas of [his home area], where the applicant was born. He lives with friends. The applicant’s mother, however, lives with her brother in [District 1], Eastern Nepal. He said his parents have not lived together since departing [the agency] around five or six months ago due to the applicant’s father’s political problems. Despite these problems and the claimed ongoing threats being made against the applicant’s family in Nepal, he said his mother has not been harmed in any way. He explained that his mother is not the main target. His father is. However, this evidence impressed the Tribunal as a departure from the applicant’s claim that his entire family in Nepal have been threatened with harm for reason of being part of his father’s family unit, and that this causes the applicant to fear not only for his own safety, but for that of his wife and child.

20. Regarding his father he told the Tribunal that he has not had recent contact with him because his father now lives in a very remote location. He last spoke to his father shortly after he was attacked in May 2013 – speaking to him from hospital. On that occasion his father told him he is recovering from the attack.  He said his mother has not seen his father for five or six months but she gets information about him when people from where his father lives go to where his mother lives. His evidence suggested that he has not had recent, direct news regarding his father and that much of what he can say regarding his father’s current circumstances is based on rumor and speculation.

21. The Tribunal asked the applicant how he knows that his father continues to receive threats directed at him and his family. The applicant responded that, since his father was attacked in May 2013 he has been in hiding so there has “not been much threat there”. However, the applicant then offered that “when he came down (from the hilly area) he heard many are threatening him”. When asked when his father came down from the hills to hear of these threats the applicant changed his evidence, offering that his father did not come down but he knows of their plans to harm him. When asked to explain how his father knows of these threats, and how the applicant knows of them, he offered that his father was a targeted person so people who visit the applicant’s mother in [District 1] took news to her of threats. They tell her that the applicant’s father should keep hiding and stay safe. When asked how the applicant obtained these specific details of such a warning to his father given that he said he has had no contact with him for around three years he responded that his maternal uncle heard the news as an interested family member as the threats were made openly and publicly and he heard them. This evidence impressed the Tribunal as evolving and heightens the Tribunal’s concerns that, at best, the applicant’s evidence regarding his father’s current circumstances appears to be based on rumor and speculation.  

1. The Tribunal put to the applicant that, on his own evidence, he has immediate family members who continue to live in Nepal, including the Terai area who, on his evidence, have not so much as been directly threatened or intimidated anyone. For instance, there is no evidence that his mother who appears to be living openly with her brother in the Eastern Province, or his sister who is living in [Nepal] have been harmed or threatened in any way. In response to this the applicant’s claims appeared to change from a claim in which he feared harm due to simply being a member of his father’s family, to one where he was a specific target due to his own political profile as a supporter of the CPN-UML, and a son who will be assumed to be following in his father’s path. The detail of the applicant’s claims regarding his political profile in Nepal are considered further below, however, the evolution of this claim in response to the applicant being unable to explain why his family members appear to be able to live openly and without harm in Nepal, including in Eastern Nepal, is of general concern to the Tribunal.

2. Another matter of general concern regarding the credibility of the applicant’s claims to fear harm in Nepal for the reasons advanced is the following. The applicant’s claims relate to Madhesi groups known to be active in and around the Terai area of Nepal. However, on his own evidence to the Tribunal, the applicant left the Terai to live in Kathmandu in 1999, and remained residing in Kathmandu until coming to Australia in July 2009. On his own evidence he did not return to live in the village or any other area in the Terai after 1999, and visited the Terai only twice since he moved to Kathmandu in 1999. He said that his reasons for returning to his village in the Terai only twice in the ten years he lived in Kathmandu was due to fear of conscription from  Maoists who were active in the area at the time he left the village in around 1999. He said that in that time his family did not visit him in Kathmandu, however they maintained contact by phone. While his claims regarding his reasons for not visiting the Terai more than twice in the ten years he lived in Kathmandu in the 10 years immediately before he came to Australia are considered further under “Applicant’s personal profile” below, the Tribunal considers his evidence to reveal that he has chosen to study, reside and work in Kathmandu for most of his adult life in Nepal. He has also come to study in an advanced western economy where he has remained for around seven years. This evidence indicates to the Tribunal that the applicant had, for his ten years immediately before leaving Nepal for Austraila, been living hundreds of kilometres from the Madhesi conflict in the Terai, and would, should he return to Nepal, continue to live and work in Kathmandu where he would remain far from any Madhesi agitation, which on the country information detailed below, continues to be concentrated in and around the Terai. The applicant offered no substantive response to this observation, but did note that threats are being made by Madhesis to pursue their interests in Kathmandu as well as in the Terai.

3. The Tribunal notes that the applicant, in his 2013 Declaration, indicates that, in his MRT hearing he gave evidence regarding the political instability in the Terai. The Tribunal accepts that the made general reference to the political instability in the Terai on that occasion. However, as put to the applicant under section 424AA of the Act: shortly after his unsuccessful MRT review he made a request for the Minister’s personal intervention, dated [in] February 2013; the Tribunal has seen a copy of that request which indicates that it was completed with the assistance of a Registered Migration Agent (RMA) from [a company]; while that request details the applicant’s study background in Australia, the reasons it gives for the applicant being unable or unwilling to return to Nepal are that returning to his home country without a higher education degree would not only cause himself and his family serious distress, but it would be hard for him to find good employment as he would be considered a failure in the eyes of his employer; no mention is made of any fears or threats or risks of harm to the applicant or any member of his family either in Australia or in Nepal and no mention is made of his father being targeted for harm by anyone in Nepal at any time.

4. As the Tribunal explained to the applicant: the above information is relevant to the review because he claims that his father and family has been the target of threats in Nepal for decades, those threats increasing since his father’s involvement in the [organised group] in 2006; should the Tribunal rely on the information put to him, it might find his failure to mention these things cast doubt on their truth which may in turn cause the Tribunal to not be satisfied that the applicants are persons in respect of whom Australia has protection obligations. The Tribunal explained that he has a right to request additional time to respond or he may respond immediately.

5. Opting to respond immediately the applicant offered that, in Nepali culture, if something doesn’t happen in the extreme it is not mentioned, and that is why he did not mention his father and family being targeted and threatened with harm in his February 2013 Ministerial Intervention request. However, as explained to the applicant, he has described, in his 2013 statement, that the threats of harm directed at his father were so great following his involvement with the 2006 [organised group] that his father resigned from [a position in] [Area1], albeit not until [years later]. He also claims that he came to Australia in 2009 primarily for protection. Yet he is now saying that the threats of harm against his father and family in Nepal were not extreme enough to mention in a letter requesting the Minister’s personal intervention to allow him to remain in Australia. This does not impress the Tribunal as convincing. Further, while claiming that he did not consider such repeated threats of harm to be extreme enough to mention in his request for Ministerial intervention, he did consider it appropriate to mention his concerns about not being able to source employment in Nepal without completing his tertiary qualification in Australia. As explained to the applicant, these explanations do not impress the Tribunal as consistent or convincing. The Tribunal does not accept that the applicant did not mention the ongoing threats and intimidation he claims has been directed against his father and family in Nepal for decades for the reasons claimed. The Tribunal considers his failure to mention those claims and his fears of harm to himself, his wife and child in his request for Ministerial intervention, to be significant and to raise concerns regarding the truth of the claims made, including his claims that his father and family have been threatened in any way in Nepal, and his claims that he and/or any member of his family had, have or will have, in Nepal, a profile giving rise to a real chance of serious or significant harm in Nepal in the reasonably foreseeable future.

   Applicant’s father’s political profile and experiences of harm

6. As detailed above, the applicant, in his 2013 Declaration refers to having mentioned, in his MRT review regarding his visa cancellation, the volatile political situation in the Terai. However, as detailed above, there is no suggestion that he has ever, including his request for Ministerial intervention prepared with the assistance of a RMA, raised the claim that his father or family have had any direct involvement in that political struggle, or that they have particular political profiles or that they have been directly targeted for harm in any way. This is a significant, albeit, not determinative concern regarding the truth of the applicant’s claims regarding his father’s political profile, activities and the constant threats of harm and actual harm directed at his father and family in connection with such profile.

7. The applicant also claims that his father has, since at least the time he moved to [Area1]in [year], been linked to the CNP-UML, and occupied [local] positions. He has also always been distinguishable as a person who descends from the hill areas rather than the Terai. He claims that, since at least 2006, when he was a member of the [organised group] advocating against issuing Nepali Citizenship to Madhesis, he has attracted threats of harm from underground Madhesi groups. Yet on his own evidence the applicant’s father did not step down from his [local] position until some [number] years later, and continued to live at his home in [Area1]with his wife until May 2013 without being harmed by anyone. When asked why, if, as claimed by the applicant, the key event placing his father in the adverse attention of militant Madhesi groups was the stand he took in 2006 while [with] the [organised group], he was not harmed for another 6 or 7 years, the applicant offered no explanation. He continued to maintain, however, that the position he took during his work [with] the 2006 [organised group] was the main reason his father was attacked. He offered also that, while the Madhesis in the [organised group] were not violent, underground Madhesi groups grew in power and confidence over the years and attacked his father in 2013, some 2 years after the applicant claims his father resigned his [local] position, and 7 years after his involvement with the [organised group].

8. The Tribunal asked the applicant if his father is still politically active. He responded that he is not. When asked if his father is currently a member of any political party he said he does not know, but he used to be a committed member of the CPN-UML.

9. The Tribunal also discussed with the applicant what he knows of the attack on his father in May 2013, as well as discussing the documentary evidence submitted in support of the claims made. Specifically, the Tribunal noted that reliable independent sources report a high prevalence of fraud in documentation from Nepal, which means that the Tribunal cannot assume that the documentation from Nepal which has been submitted is genuine[10]. This assessment must be made in the context of all the evidence before the Tribunal.

   [10] Eg, Immigration and Refugee Board of Canada 2009, NPL103010.E - Nepal: Prevalence of forged, fake or falsely acquired documents, including identity documents, professional certifications, membership cards and employment records, 26 January – Accessed 4 May 2010

10. The Tribunal also noted that, the documentation submitted in relation to the claimed attack on the applicant’s father in May 2013 raises some questions. For instance, some of the documentation indicates his father was “abducted” on [a date in] May 2013[11]  while other documentation refers to him being physically attacked and his home taken possession of by Madhesi attackers[12]. In response the applicant offered that his father was taken a short distance away from the house before being attacked and in this way both accounts are correct.

    [11] Letter from [the agency], folio 202, [File number]

    [12] Ibid, Office of Village Development Committee Letter, folio 201

11. The Tribunal noted that the Police Injury Examination/medical examination documents submitted also identify the case being recorded [in] June 2013, around one week after the claimed attack took place. They also identify his father’s injuries as being “Fatal if not attended”. Nothing the seriousness of the identified injuries the Tribunal asked why he went to the police/hospital around a week after being attacked. He responded that his father’s attackers threatened him not to go public or they will harm others, so instead of going to the hospital he had domestic treatment. He did not detail the nature of the domestic treatment given to heal his father’s wounds which were considered by police documents to be near fatal. Nor did he explain why, if his father initially heeded the threats to not approach the hospital or authorities, he ended up going to both the police and the hospital and obtaining reports from them which were then provided to the applicant.

12. The Tribunal also asked the applicant where his father’s injuries were, noting his earlier evidence that he had spoken to his father while his father was in hospital after the attack, and noting also that the applicant had provided documentary evidence regarding his father’s injuries. In response the applicant offered that his father had injuries to the side/back of his head, not the temple. When asked if he was injured anywhere else the applicant said he had bruises on his back. He did not mention the “multiple abrasions over both forearms” mentioned in the police report provided. When asked what treatment his father received at hospital he responded that he was maybe sewn but he is not sure. As put to the applicant, he has provided written evidence from the Nepali Police and hospital identifying that his father had [specific details of treatment], yet it appears that he has not read that information or made himself familiar with the injuries it identifies his father suffering from, or the treatment he received.  In response he offered that he is telling the Tribunal what his father told him. However, the Tribunal considers it concerning that the applicant’s oral evidence suggests he was not familiar with the documented detail of his father’s injuries and treatment, casting doubt on the truth of his claims that his father was attacked and his claim that the documents provided are genuine.

13. Regarding the applicant’s claim that the Madhesi groups have seized his father’s land, the Tribunal asked what steps his father has taken, given the political connections he must have given his decades of political involvement, to report the takeover of his home and seek to recover that property. The applicant’s evidence in response was, at best, vague. He offered that many people are displaced and there is no police station in his father’s village. He said his father may have tried to contact people but he isn’t sure. He does not know if his father reported the take-over of his property to anyone and does not have a lot of information about it. He has heard things from his mother but he is not sure.

14. Based on all the evidence before it, the Tribunal does not accept that the applicant’s father was attacked in May 2013.

15. While the Tribunal accepts that the applicant’s father was a member of the CPN-UML, was involved in district level politics as part of the CPN-UML until around 2010-2011, and was part of the [organised group] of 2006, and that he originates from the hills of Nepal, the Tribunal does not accept that he was ever specifically targeted for harm, or that he was threatened, or had his family threatened, or that he was attacked in May 2013 or at any other time by militant Madhesi groups or anyone else who had taken an adverse interest in the applicant’s father or the applicant’s family. Nor is the Tribunal satisfied on the evidence advanced that the applicant’s father’s home in [Area1] has been possessed by Madhesi militants.

16. While the Tribunal is mindful of the documentation submitted regarding the threats and attack suffered by the applicant’s father and family in Nepal, as explained to the applicant, given that reliable sources report a high level of document fraud from Nepal, the Tribunal cannot uncritically accept the documentation submitted as genuine. In the context of all the evidence before it and the cumulative concerns detailed above, the Tribunal is not satisfied that the documents provided are genuine. The Tribunal does not consider that documentation to address or overcome the many concerns detailed in the balance of the Tribunal’s reasoning, and as detailed above, considers some of the documentation to compound the Tribunal’s concerns regarding the reliability of the evidence advanced generally.

    Applicant’s claimed individual profile

17. Regarding the applicant’s claim that he also had and has an individual profile as an active supporter of the CPN-UML party, when the Tribunal asked him to describe how he was involved he offered that: he was not as involved as his father; he joined in 1996; he was very young at the time; he was a member of the party. When asked about how he became a member he said that he went to a CPN-UML speech and liked what they said about development and taking people with them. When asked how the CPN-UML differ from the Maoists he said that it is ideological, with the Maoists focusing on armed struggle. When asked how the CPL-UML performed in the November 2013 Constitutional elections he said they came second, demonstrating some basic understanding of the CPN-UML’s performance and ideology. While claiming to join the CPN-UML in 1996, the applicant also told the Tribunal that he was not politically active in the ten years he lived in Kathmandu between 1999 and 2009, nor in the 7 years since he came to Australia in 2009.

18. Regarding his role in the party he said that he said that he had no involvement in the 2013 elections as he was in Australia, but during the 2008 elections he “went around talking about the party”. When asked to be more specific about where he went and what he talked about he said that this was in his home village in [Area1] [Area1] , he didn’t go to many places and where he did go he would “create the feeling of the election”. When asked what he means by this he said that he would give the CPN-UML “assistance”. When asked for examples of the assistance he provided he said that they had a youth team that engaged in public activities and he was “in that”. When asked for an example of a public activity he was involved in and to describe what he did he said that “we gather people from the village to convince them” about the CPN-UML. When asked again what his specific role in these events was he said that he would go and talk to people about the party and say that we are democratic and liberal and talk about development. He said that he returned to his village from Kathmandu for around a month to campaign for the CPN-UML in 2008. While the applicant’s wife also told the Tribunal that the first applicant returned to Kathmandu for in 2008 to support the CPN-UML during the election campaign, the Tribunal has concerns regarding the applicant’s claimed involvement in campaigning for the CPN-UML in [Area1]in 2008 or any other time. As explained to the applicant, it is hard to reconcile his evidence that he actively and openly campaigned for the CPN-UML in [Area1]in 2008, during an election campaign when political violence is recorded to spike, with his oral evidence to the Tribunal that he only returned to his village in [Area1] two times in ten years between 1999 and 2009 because of his fear of Maoists. In response he offered that the Maoists were willing to accept the election outcome so this made it safer to return to his home in 2008. However, as discussed with the applicant, this does not impress the Tribunal as consistent with independent reports which indicate that, in the lead up to the 2008 Constituent Assembly election in Nepal, the Young Communist League (YCL), the then militant youth wing of the Maoists, was implicated in extortion, intimidation and violent activities, with observers from the Carter Center identifying many reports of negative youth wing activities, primarily involving the YCL:

    aimed at obtaining financial gain and which have the effect of undermining political space, development, and public security…In many districts, the YCL and, to a lesser extent, the UML Youth Force, have interfered in contract tender processes, been complicit in smuggling, solicited forced donations, and engaged in violent clashes. Additionally, in some districts, YCL has used intimidation and violence to control political space.[13]

    [13] The Carter Center 2011, ‘Clashes Between Political Party Youth Wings Have Decreased But YCL And UML Youth Force Continue To Seek Financial Gain’, The Carter Center website, 28 February, pp. 1, 3, 4 & 8 – Accessed 17 March 2011 <Attachment>

1. The Tribunal asked the applicant if he was involved in politics during the ten years that he lived in Kathmandu from 199 to 2009. He responded that he was away from such things in Kathmandu and did not want to be visible or political. This too impresses the Tribunal as difficult to reconcile with his claim that he returned to his village for a month in 2008, a place he claims he left in 1999 out of fear of Maoists, specifically to openly and visibly campaign for the CPN-UML. In response the applicant offered that the United Nations were there at the time so he felt safer.

2. The Tribunal also put to the applicant its concern that, in his detailed written claims he has made no mention of himself being politically active and asked him why not. He responded that he was focused more on his father and his displacement in his written claims. As explained to the applicant, his claims and evidence regarding his own political activities and profile in connection with the CPN-UML impress the Tribunal as having evolved to explain why he would be targeted more than other family members who appear to be able to continue living in Nepal without experiencing harm. In response he offered that in society a father’s son is seen to walk in the path of his father and it is not the same with a daughter, thus distinguishing his risks of harm from his sister who remains safely in Nepal. However, this information impresses the Tribunal as being inconsistent with his claims that his wife and child as well as himself face a real chance of serious and significant harm in Nepal simply for being seen as part of the family unit of the applicant’s father. Further, while claiming on the one hand that he will be assumed by Nepali society to follow in the path of his father, there is no suggestion that the applicant was ever harmed or targeted for harm in connection with his father’s political profile at any time while living either in [Area1]or Kathmandu before coming to Australia in 2009.

3. Based on all the evidence before it and the cumulative concerns detailed above, while the Tribunal accepts that the applicant’s father was a member of the CPN-UML and was involved in district level politics as part of the CPN-UML until around 2010 to 2011, and that he was part of the [organised group] in 2006, and the Tribunal accepts that the applicant was also a supporter of the CPN-UML, the Tribunal does not accept that he was an active or visible supporter of that party. The Tribunal does not accept that he actively and visibly campaigned for the CPN-UML in 2008 or at any other time as he has claimed, or that he had, has or will have, in the reasonably foreseeable future, a profile as an active member or supporter of the CPN-UML or as an opponent of the Madhesi cause which sets him apart from his sister and mother who, on the applicant’s evidence, continue to live safely in Nepal. The Tribunal does not accept that, being his father’s son gives him any particular political profile giving rise to a real chance of serious or significant harm in the reasonably foreseeable future. Nor does the Tribunal accept that his wife and/or child will be imputed with any particular political opinion or that they will have an adverse profile in Nepal giving rise to a real chance of serious or significant harm in the reasonably foreseeable future simply for being part of the applicant’s family unit, and thereby being part of the extended family of the applicant’s father.

   Harm from Madhesi rebels generally

4. The Tribunal is mindful that the applicant has claims to fear harm in part for reason of a political opinion imputed to him and his wife and child by virtue of his father’s political profile, as well as for reason of their ethnicity as descendants from the hills, rather than from the Terai. The Tribunal is also mindful of the historical tensions between the Madhesi people and those living in the Terai who are considered by the Madhesi to not fbe Madhesi[14], and of the historical grievances of the Madhesi people who have seen themselves be marginalized and underrepresented in many aspects of Nepali life and politics[15].

   [14] The Madhesi  people are explored and explained further in the DFAT information in Annexure 2

   [15] See excerpt of DFAT report in Annexure 2

5. However, also relevant is the following. Independent country reports[16] indicate that the Madhesi groups operate primarily in the Terai, an area the applicant has not resided since 1999, and which the applicant and his wife, since their marriage, have not resided in as a couple. On his own evidence the first applicant lived his last ten years in Kathmandu without harm. Should he return to Nepal the Tribunal finds that he would also reside in Kathmandu with his wife and child. While the Tribunal accepts that the applicant and his wife and child may visit the Terai to see family in the reasonably foreseeable future, the Tribunal finds that the Terai is for them, a place of short term, temporary stay in the reasonably foreseeable future, with their long term home being in Kathmandu. Based on this the Tribunal put to the applicant that it appears any risk of harm to the applicant, his wife or his child from Madhesi groups would appear remote, with very little activity from such groups being reported in Kathmandu, and the applicants being unlikely to return to the Terai in times of turmoil. In response he told the Tribunal that the whole of Nepal is burning and Kathmandu will not be safe. He referred to recent violence occurring in the Terai in which there were a large number of fatalities, and suggested that such violence threatens Kathmandu as well.

   [16] This is reflected in the reporting of the South Asia Terrorisms Portal’s “Nepal Assessment” for 2014, 2015 and 2016 ( as well as the Australian Department of Foreign Affairs and Trade (DFAT) Country Information Report, Nepal, 21 April 2016,

6. The applicant referred to the clashes in the Terai which followed the announcement of the new constitution on 20 September 2015. The Tribunal notes that, in its 2015/16 Report on Nepal, Amnesty International reported that, following the devastating earthquake in Nepal in April 2015, four major political parties brokered an agreement to define Nepal as a federal republic in the new Constitution and to split it into seven federally administered states. The New constitution was issued on 20 September 2015. This resulted in often violent protests in the Terai. Security forces were reported to use excessive and disproportionate force in clashes with protesters, and by October 2015 at least 47 civilians and 10 police were reported to have been killed in the clashes. These deaths and injuries were reported to have occurred in and around the Terai.

7. Human Rights Watch (HRW), in a paper entitled "Political Unrest Mars Progress on New Constitution"[17], reported that months of protests over the new constitution in Nepal’s southern region caused more than 50 deaths and halted the flow of essential goods and medicines into the country. HRW reported:

   “In the immediate aftermath of the earthquakes, Nepal’s political parties managed to agree on a long-stalled constitution. While the constitution has some important equal protection and affirmative action clauses and recognizes the right to third gender identity, many ethnic groups, particularly along Nepal’s southern and far-western belts, said they felt excluded. Members of these groups declared strikes, blocked roads, and, in many cases, shut down normal daily activities for weeks at a stretch. Some of these protests turned violent. In September, an estimated 45 people, including nine policemen, were killed. In some districts, the government responded by deploying the army, and in others by instituting curfews. Most of the protester deaths were attributed to excessive use of force by the security forces”.

   [17] Human Rights Watch (HRW), 27 January 2016, >

   Critics observed that, while Nepal has had years to discuss and prepare a constitution which addresses the interests and expectations of all its people, they chose instead to use the distraction of the earthquake to rush through a constitution which has led to further unrest and death.

8. It was later reported in "Nepal's parliament approves first amendment to new constitution"[18], that Nepal's parliament has voted to amend the country's new constitution aimed at addressing 11-point demands raised by the Madhesi parties. Specific amendments were reported in respect of articles 42, 84 and 286. It was reported that: the bill garnered 468 votes while seven lawmakers voted against it; The amendment has ensured higher representation in the government bodies on the basis of proportional inclusion of the Madhesis, as well as other marginalised communities; some Madhesi agitators have shunned the voting saying the constitution amendment failed to address their core demand of fresh demarcation of provincial boundaries; Madhesi fringe parties, under the banner of the United Democratic Madhesi Front (UDMF), will continue the protests against the constitution, leaders said.

   [18] Business Standard, The, 24 January 2016,

9. On 8 February 2016 it was reported that three days after the obstruction at the Birgunj-Raxaul Nepal-India border point was removed, the agitating United Democratic Madhesi Front formally decided to end the blockade[19].

   [19] The Himilayan, 17 March 2016

10. As explained to the applicant, the above information suggests that the injuries and deaths linked to the recent spike in violence in the Terai has been attributed to excessive force from Nepali government forces rather than to acts of violence by Madhesi groups. This does not suggest that the applicant would face any risk of harm from Madhesi groups in Kathmandu or anywhere else in Nepal. Further, the reports detailed above suggest that diplomatic steps have been and continue to be taken to accommodate Madhesi demands and address Madhesi grievances, diminishing the likelihood of large scale clashes in future. The Tribunal explained that the Nepali government appears to be investing significant resources to combat militant Madhesi forces and to reduce their legitimacy by accommodating moderate Madhesi demands. This is largely consistent with the recent comments of the Australian Department of Foreign Affairs and Trade that “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.”[20]

    [20] DFAT Country Information Report, Nepal, 21 April 2016

11. Based on the totality of the evidence before it including the cumulative concerns detailed above, the Tribunal is not satisfied that the first applicant or his wife or child face a real chance of serious or significant harm as anticipated by the relevant law, by any Madhesi group or anyone else in Nepal, for reason of being persons who lived in the Terai but descend from the hills.

    Claims regarding the third applicant

12. It was claimed by the first and second applicant, being the parents of the third applicant who is aged around [age], that they worry about exposing her to unrest and violence in Nepal, as well as the potential of kidnapping and other crimes. Based on the reasoning in previous paragraphs, and the concentration of Madhesi violence to areas in the Terai, the Tribunal considers the risk of the third applicant being exposed to unrest and violence linked to the Madhesi cause to be remote. The Tribunal does not consider her risk of such exposure to be heightened by being a member of the extended family of her paternal grandfather, or by being a descendant from the hills. The Tribunal does not consider those factors, even cumulatively, to raise her risks of harm to a real chance of serious or significant harm as contemplated by the relevant law.

13. Regarding the claimed fear of exposing the third applicant to the threat of kidnapping and other crimes in Nepal, the first and second applicants’ evidence was that their daughter would, if she returns to Nepal, be returning with them and living as part of their family unit in Kathmandu. As explained to the applicants, it is unclear why the third applicant would face a heightened risk of kidnapping or crime in Nepal. In response the first and second applicant offered that Kathmandu is not safe and there is a big political movement scheduled for April. However, the applicants’ evidence does not suggest that any of them will be directly involved in any future political movements or activities in Nepal in the reasonably foreseeable future, and does not satisfy the Tribunal that the third applicant faces a real chance of kidnapping or any other crime or harm rising to the level of serious or significant harm in Nepal in the reasonably foreseeable future.

14. Based on all the evidence before it, the cumulative concerns, reasons and findings above, the Tribunal is not satisfied that any of the applicants face, in Nepal, in the reasonably foreseeable future, a real chance of harm rising to the level of serious or significant harm for any of the reasons claimed or arising on the evidence, even when considered cumulatively.

15. 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 under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).

16. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

17. There is no suggestion that the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).

18. 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. As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

19. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Suhad Kamand
    Member

    
    

    ANNEXURE 1

    RELEVANT LAW

20. 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.

    Refugee criterion

21. 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).

22. 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.

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

24. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

25. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

26. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

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

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

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

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

    Complementary protection criterion

1. 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’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

3. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

   Section 499 Ministerial Direction

4. 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.

   Annexure 2

   Country Information

   DFAT Country Information Report, Nepal, 21 April 2016

   The Australian Department of Foreign Affairs and Trade has, in its April 2016 Country Information Report on Nepal made the following observations which have been considered, together with other evidence, in the Tribunal’s findings and reasons.

   “Security Situation

   2.34 The overall security situation throughout Nepal has dramatically improved since the end   of the conflict. However, poverty, unemployment, weak rule of law and a culture of impunity are causes of insecurity in Nepal. Political party interference in security processes and criminal investigations further undermining effective security and justice. Political protests and demonstrations occur regularly and can turn violent without warning. Political parties have been known to enforce strikes (bandhs) which can close down transport and business operations for extended periods, although these have occurred less frequently in recent years. There are credible allegations that groups associated with political parties have committed acts of violence, extortion, and intimidation. Violent protests and strikes over the constitution occurred in the far west, mid-west and east in August 2015.

   2.35 In September 2015 protests began in the Terai and continued until early 2016. Led primarily by the Madhesi and Tharu groups, (see ‘Ethnicity’ below), these protests arose in part because of concerns about the demarcation of provincial boundaries under the 2015 Constitution and had a significant effect on Nepal’s industry and economy as they have blockaded the East-West highway at Birgunj, the largest crossing on the border with India. Some figures suggest that only 40-50 per cent of goods and fuel were crossing into Nepal, which further added to the already difficult humanitarian situation faced by Nepal as it recovered from the 2015 earthquake. Nepal’s security forces (mainly police) were heavily involved in responding to the Terai protests and police reportedly opened fire on civilians in some instances. Over 40 deaths, both civilians and police, have been reported. At the date of publication, the protests have stopped and all borders are open following an amendment to the Constitution in January 2016 to respond to the aforementioned concerns.”

   “…Madhesis

   3.11 Many of the Madhesis (the name given to the inhabitants of the Madhes or Terai region) are of Indian origin with strong socio-cultural and ethnic linkages across the border. The term ‘Madhesi’ refers specifically to non-tribal, caste Hindus of Indian origin that live in the Terai. Many Madhesis consider those living in the Terai who do not fit this definition (including Muslims, Tharus, Pahadis, and indigenous groups who predated Madhesi immigration) to be ‘foreigners’. Less than 50 per cent of the Terai population are Madhesi, and many people from other parts of Nepal have moved to the region seeking jobs.

   3.12 Madhesis comprise around 20 per cent of Nepal's population but are underrepresented in politics, public service jobs, and the military. Hindi-speaking Indian Madhesis were historically denied citizenship certificates (and therefore also land and access to government benefits) under the Citizenship Act of 1964 and the Constitution of 1990 owing to Nepali language requirements. The citizenship law was amended in 2006 to allow people born in Nepal before 1990 and those residing there permanently to acquire Nepali citizenship, but this law contained a short window period for Madhesis to claim citizenship that closed in November 2008. The 2015 Constitution seeks to address this issue.

   3.13 Efforts by the government to introduce compulsory Nepali language in the region have been seen as a further attempt to discriminate against the Madhesis. Economic and political favouritism (by way of land allocations) towards the upper caste Pahadis (hill-dwelling Hindus) was introduced under the ‘Panchayat’ system (1962 – 1990). This, as well as allegations of economic exploitation of the resource-rich Madhes region, have exacerbated feelings of discrimination by the Madhesis resulting in decades of political activism and tension between Madhesis and members of other ethnic minorities living in the Terai region. The extent to which such sentiments are shared throughout the entire community is unclear.

   3.14 A pro-Madhes autonomy group (the United Democratic Madhesi Front – UDMF) was formed in 2007. The group has signed two peace agreements with the Nepali government with the principal demand being the ‘liberation’ of the Terai region and the creation of a single autonomous unit called Madhes in a new federal system for Nepal. The group has also demanded greater representation in political, military and economic affairs, often at the exclusion of other ethnic groups such as the Tharu in the western regions of the Terai.

   3.15 DFAT assesses that Madhesis in the Terai experience moderate official discrimination because of on-going difficulties in obtaining citizenship, which impacts on their ability to access government services. The 2015 Constitution was amended in early 2016 partly in response to Madhesi demands around political representation. Violence in the region remains sporadic, as is evidenced by the protests of late 2015 and early 2016, when upwards of 40 people are reported to have been killed”.