1419804 (Refugee)

[2016] AATA 4010

1419804 (Refugee) [2016] AATA 4010 (18 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419804

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Christine Cody

DATE:18 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 18 June 2016 at 11:36am

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

STATEMENT OF DECISION AND REASONS - APPLICATION FOR REVIEW

SUMMARY AND BACKGROUND[1]

[1] This is sourced from the applicant’s written documents, his evidence, and the delegate’s decision record provided to the Tribunal by the applicant.

1. The applicant is a Nepalese national who seeks to be granted a Protection visa under s.65 of the Migration Act 1958 (the Act) on the grounds that he is a refugee or entitled to protection under Australia’s complementary protection provisions.

2. He arrived in Australia by boat as an unauthorised maritime arrival [in] April 2013.

3. He applied to the Department of Immigration for the visa [in] September 2013 and the delegate refused to grant the visa [in] November 2014. This is an application for review of that decision, and the relevant law is set out in Annexure A. The applicant was represented by his registered migration agent from [agency] appointed under the IAAAS in relation to the application before the Department.

4. The Tribunal has before it the Department’s file and the Tribunal’s file relating to the applicant. The Departmental file contains documents including a copy of the Irregular Maritime Arrival Entry Interview conducted in 2013, the letter from the agent enclosing the protection visa application forms, the applicant’s statement, his Form 80 (Personal Particulars Form), a copy of the recording of the interview with the delegate [in] November 2014 (after the lodgement of the protection visa application) to which the Tribunal has listened, post interview submission is from the applicant’s agent dated [in] November 2014, and a copy of the delegate’s decision record.

5. The Tribunal file contains copy of the delegate’s decision record provided to the Tribunal by the applicant. The Tribunal sought, by way of letter dated 31 May 2016, that the applicant provided to the Tribunal any information, documents or evidence upon which he sought to rely by 8 June 2016. This was not done.

6. The applicant appeared before the Tribunal on 15 June 2016 to give evidence and present arguments.

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

8. The Tribunal does not accept that the applicant has a well-founded fear of persecution for a Convention reason, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm. The Tribunal has accordingly affirmed the decision of the delegate to refuse to grant the applicant a Protection visa. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background and claims

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

   ·     The applicant was born in [his home town], [in District 1] district in [year]; this is where he grew up. He speaks, reads and writes in Nepali, and English (basic). He is an ethnic Magar and a Hindu.

   ·     He was married on [in] 1999 and he has [children] born [in specified years]. They remain in Nepal, as do his parents and [specified relatives]. His father worked in [an agency], then he became a farmer, and is now retired. His mother is housewife.

   ·     The applicant was educated from [specified year] until [year], repeating [some] grades.

   ·     He resided from his birth, until [August] 2011 at his home in [District 1]. From [year] until August 2011, he assisted on the family farm (working part-time while studying).

   ·     [In] August 2011 he left home in [District 1] and travelled to Pokhara, where he stayed (for about eight months) until [April] 2012. During that period, from August 2011 until August 2012, he lived and worked on a family farm in Pokhara.

   ·     [In] April 2012 he travelled to Kathmandu, where he stayed until [April] 2013. He worked for his [Relative A’s] business in [location in] Kathmandu ([specified duties]), and he resided in Kathmandu.

   ·     He left Nepal legally from Kathmandu, using his genuine passport with [Country 1] visa, [in] April 2013. He spent one day in [another country] ([in] April 2013) and then [number] days in [Country 1] ([specified dates in] April 2013). He then travelled by boat to Australia, arriving [later in] April 2013.

10. According to these documents, past relevant events can be summarised as follows:

    ·     On about [a date in] March 2004, a group of Maoists came to his village. They planned to blow up the police station and entered into an armed conflict with the police. The Maoists rounded up villagers and forced them to work for them. The applicant was one of the people taken; they forced them to transport the injured Maoist fighters to another district for medical treatment. The applicant was held for three days and was then released and allowed to return home.

    ·     For many years, the Maoists would come to their village, and intimidate and threaten them that they could come and take them at any time to assist in their activities. His family and he lived in fear that they would come at any time to take and use the applicant in their criminal activities.

    ·     On about [a date in] April 2011, the applicant was approached by Maoists who asked him to join their party. He did not want to join and refused. They were persistent and kept asking him. They told him that if he joined the party, that his family would be safe, and he understood that as a threat that his family would be at risk if he did not join. They also threatened that if he did not follow their directions, something that might happen to him.

    ·     They continued to harass and threaten him for [number range] days. He fled from [his home town] to Pokhara. He was worried for his family but it is not possible to take them with him, he knew the Maoists were only targeting him. They were targeting all the young men in the village.

    ·     In Pokhara, he stayed with relatives and worked on the family farm. His family in [his home town] said that the Maoists were harassing them and asking where he was. They were afraid, and they told the Maoists that he had moved to Pokhara.

    ·     The applicant was worried and he moved to Kathmandu. He kept a private life there; he worked through the night and slept in the daytime. He did not have much contact with other people. He would go for short walks, just to see if people were following him.

    ·     In December 2012 he spoke with his wife on the telephone and she said the Maoists were still asking after him, and that he should not return because they would punish him for running away. He knew they would try and force him to join them again. As a result of this conversation he decided to consider his future options. He had met a man through his work in Kathmandu who told him that Australia was a country that could help him as it respects human rights. He made arrangements to leave Nepal, which he did in April 2013.

11. He fears that if he returns to Nepal, the Maoists will target him. He fears they will find him and force him to join them again and if he refuses, they will harm him or even kill him. There is nowhere safe to live in Nepal. He cannot escape by moving locations and has always lived in fear that they would find him. He cannot live like that anymore.

12. The government can’t protect him. He considered reporting his situation to the police but as an everyday person, he has no power to receive their assistance. The Nepalese police are known for their corruption. He was concerned that if he made a report, he would put himself at greater risk of attracting attention, and that his whereabouts would be discovered by the Maoists[2].

    Interview and the delegate’s decision record

    [2] In his statement, it said “his whereabouts would be discovered by the police", however this appeared from the text to be clearly an error, and it should have been Maoists. The applicant told the Tribunal that the only fear he had upon return was the Maoists.

13. The delegate discussed the applicant’s claims with him.

14. The delegate refused the claims on the basis of a finding that the applicant has statutory effective protection in a third country (namely India) as set out in subsection 36(3) of the Act, and having considered s.36(4), (5) and (5A) of the Act. The delegate noted that it was not a requirement to make a decision on the applicant’s substantive claims and whether he was owed protection obligations pursuant to s.36(2) of the Act before considering s.36(3) of the Act.

    The Tribunal

15. As noted above, the applicant provided a copy of the delegate’s decision record to the Tribunal (with his application for review form). The Tribunal invited the applicant to attend the hearing, noting that on the information before it, it was not able to make a decision in the applicant’s favour.

16. By way of letter dated 31 May 2016, the Tribunal requested that the applicant provided to the Tribunal any information, documents or evidence upon which he sought to rely one week prior to the hearing. The applicant did not provide any further documentation.

17. As noted above, the applicant appeared before the Tribunal on 16 June 2016. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant gave evidence and presented arguments about his claims.

18. The Tribunal asked the applicant what he feared about returning to Nepal, and he said that he had been kidnapped in 2004. The Tribunal noted that this was nine years before he left Nepal, and so it did not understand why he thought he would be harmed for this reason now in 2016. He then said that nothing happened between 2004 and 2011, at which time the Maoists told him to join the party but he did not accept, and they started to show bad behaviour. The Tribunal asked why he believes they would want to harm him if he returned now, and he said because he did not support them before and he did not join them and he ran away from them. The Tribunal asked whether there was any other reason why they would harm him and he said no. The Tribunal asked whether there was any other concern or worry about going back now and he said that they could do anything to him or his family. The Tribunal said that this was speculative and asked what his fears were. He said that they could abduct him and harm him or kill him, and his family members. He said the Maoists are violent and they have always been violent. Even though the conflict is over now, they are still killing people. He is in contact with his family who tell him that the Maoists are still interested in him.

19. The applicant said that he has no other fear of anyone else, and that there is no other reason to not go back to Nepal

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

21. Relevant evidence and information is set out below.

    FINDINGS AND REASONS

    Country of reference

22. The applicant claims to have left Nepal using a genuine passport issued in his correct identity, and that this passport was taken by a smuggler in [Country 1] (although in his protection visa application form he states that his passport is in Nepal). After his protection visa interview, he submitted a document to the Department purporting to be a copy of his birth certificate. The delegate accepted the applicant’s identity for the purposes of the proceedings[3]. The Tribunal is prepared to accept the applicant’s identity for the purpose of the proceedings.

    [3] Sourced from the delegate's decision record provided to the Tribunal by the applicant.

23. The Tribunal accepts that the applicant is a national of Nepal and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Nepal.

    Credibility

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

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

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

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

28. Firstly, the Tribunal was concerned with the applicant’s inconsistent and changing evidence concerning when he left [home town], [in District 1], for Pokhara, after the incident [in] April 2011 when the Maoists asked him to join them, he refused and they then threatened him and his family.

29. According to his statement, he fled from [home town] and moved to Pokhara [number range] days after [the date in] April 2011.

30. However, this claim to have left [home town] [number range] days after the incident on [the date in] April 2011 was inconsistent with his application form, where he stated that he did not move to Pokhara until [August] 2011 (four months later). When the Tribunal put to the applicant its concerns about this inconsistent evidence, he said that whatever is in the statement is true.

31. Further, he initially told the Tribunal that he went to Pokhara in August 2011. As noted in paragraph 37 below, he then changed his evidence when the Tribunal put its concerns to him, stating that he left [home town] [number range] days after [the date in] April 2011 (thus in May 2011). When the Tribunal put to him that this was inconsistent with his earlier evidence to the Tribunal, he changed his evidence again, and said that he went to Pokhara in August 2011.

32. The Tribunal considers that the applicant’s changing and inconsistent evidence in this regard undermines his credibility, and his claims that he left [home town] for Pokhara to save his life.

33. Secondly, the Tribunal was concerned with the applicant’s inconsistent evidence concerning the number of times he had contact with the Maoists between [April] 2011, and when he left for Pokhara.  

34. According to his statement, he received continual harassment and threats from the Maoists for about [number range] days after [the date in] April 2011, that if he did not go with them willingly, they would have to force him to join them.

35. This however was inconsistent with his evidence to the Tribunal, which was that he was threatened twice, namely once on [a date in] April 2011, but they did not thereafter threaten him until [same number range] days before he went to Pokhara in August 2011.

36. Further, as put to the applicant pursuant to s.424AA of the Act, he had given different evidence to the delegate at interview in November 2014: he had said that between April 2011 and August 2011, the Maoists came to ask him to join the party [number range] times, which was inconsistent with his evidence to the Tribunal that there were two visits in that period. In response, the applicant said that he may have said [number range] times and now he says [same number range] days earlier, so there have been a mistake, and he has nothing further to say. The Tribunal has considered this explanation, however it doe s not find it persuasive. The Tribunal considers the applicant’s changing and inconsistent evidence in relation to how many times he was visited and threatened by the Maoists to join them undermines his credibility.

37. The Tribunal had further concerns with the applicant’s evidence to the Tribunal that he had been threatened [in] April 2011, yet he had not left until August 2011. The applicant told the Tribunal that after the conversation [in] April 2011, he understood that because he had not joined the Maoists, something bad would happen if he did not join. The Tribunal suggested to the applicant that despite having been threatened and being frightened on [the date in] April 2011, he did not leave for a further four months, which indicates that he did not have a genuine fear of harm after he was threatened [in] April 2011. It also suggested that the Maoists did not have an interest in pursuing him, as they left him alone for four months. In response, the applicant initially changed his evidence about when he went to Pokhara, and said that he went there –[number range] days after [the date in] April 2011. When the Tribunal noted that he had changed his evidence (that he had earlier said that he had gone there in August 2011), he changed his evidence back again to say that he went there in August 2011. As noted, the Tribunal had concerns that this changing evidence about when he fled to Pokhara undermined his credibility.

38. Noting that he was again claiming that he fled to Pokhara in August 2011, the Tribunal noted that this still did not explain why he had remained in his village for four months after being threatened by violent people who wanted him to join them (whom he had refused), and why he had not suffered harm during that time. In response, the applicant said that he stayed there and risked it; he agreed they are violent people, but they moved around to different villages. The Tribunal does not find the applicant’s responses to be persuasive. The Tribunal considers that if the Maoists were prepared to threaten him, and they have been so intent on him joining him that they have been chasing him for the last five years to do so, it is highly unlikely that after making their threat in April 2011, they took no action to force him to join them for four months. The Tribunal considers that the applicant’s evidence undermines his credibility.

39. Further, the Tribunal noted that he claimed to have been threatened [number range] days before he left in August 2011 (he claimed that they said to him that he should join the party and support them and if he doesn’t do so, anything could happen; he was scared for his life and this is why he left for Pokhara). The Tribunal put to the applicant that this delay in leaving indicated that he did not have a genuine fear of harm, and it seemed that by leaving him after having threatened him, and doing nothing (for at least [number range] days), the Maoists did not seek to harm him. In response, the applicant said that the Maoists move around in groups, and go to different villages, and he “had a feeling” they would come again and so that’s when he left. The Tribunal does not find this explanation persuasive.

1. Thirdly, the Tribunal was concerned about the applicant’s inconsistent, changing, and not credible evidence that the applicant left his family behind in the family home in [his home town], [in District 1] after he escaped in August 2011.

2. According to his statement, the approach on [the date in] April 2011 by the Maoists included a threat that if he did not join, his family would not be safe. This caused the Tribunal concern, because the applicant escaped to Pokhara, leaving his family behind.

3. However, when the Tribunal asked the applicant whether the Maoists had threatened his family on [the date in] April 2011, his evidence was initially evasive, and then, when the Tribunal noted he was not answering its question as to whether his family had been threatened, he then said that he had been threatened, but his family had not.

4. The Tribunal put to the applicant that this was inconsistent with his statement, and he responded that this occurred a long time ago and he forgot. The Tribunal has considered this explanation but does not find it persuasive. The Tribunal considers that the applicant would remember whether or not violent Maoists threatened his family, and he would recall whether he was concerned about that when he fled, leaving them behind in the village. The Tribunal considers that this inconsistency undermines his credibility and his claims.

5. The applicant told the Tribunal that he thought that what was in his statement was correct, thus he confirmed that the Maoists on [the date in] April 2011 had also threatened his family. The Tribunal put to the applicant that, in 2011, his family had been threatened if he did not join the Maoists, he had not joined the Maoists, and yet his family have continued to live in the same house since that time, and they have not suffered harm in this period of five years. He claims that the Maoists were still after him (even in 2016). The Tribunal suggested that it did not make sense that the Maoists are violent, they kidnap people including families, and yet they had left his family alone. The Tribunal said it was also concerned that the applicant would leave his family alone knowing that the Maoists had threatened them.

6. In response, the applicant said that he ran away but with the grace of God, nothing has happened to his family but he is still worried about his family. The Tribunal does not find the applicant’s response to be persuasive, in light of his claim that he fears now (even in 2016) that the Maoists will abduct and hurt or even kill his family; he has not provided any credible explanation as to why this has not happened to date. The Tribunal considers this undermines his claims.

7. Further, the Tribunal was concerned that when it put to the applicant that the above situation was difficult to accept, he then provided changing evidence about his family’s whereabouts. The applicant had told the Tribunal that ever since the marriage ([in year]), his wife had lived in his family home (with he and his parents), and that this had continued even after he had left. He confirmed that his wife and the children had always lived there and had not lived anywhere else.

8. However, after the Tribunal put to the applicant its concerns in the above paragraph, the applicant then changed his evidence and said that he had moved his family to Pokhara one year ago. The Tribunal put to the applicant that this was inconsistent, but even if this had occurred, it did not make sense, given that even if he had moved his family in 2015, he had still left them, unprotected, in the village, for four years from 2011 - 2015. In response, the applicant said that he was fearful and worried but he was not able to move them to Pokhara. The Tribunal considers this changing evidence to be highly unlikely.

9. The Tribunal had further concerns in regard to the claim that the applicant, while remaining in Nepal for 19 months after fleeing the village, could not take his family with him so that they too could be safe. The applicant had given evidence that it cost him the sum of about [amount range] to travel to Australia (he paid this with his father’s help). Further, in accordance with his written documents, when he travelled to Pokhara in August 2011, he managed to work and stay on a family farm, and in 2012 when he moved to Kathmandu (staying until [April] 2013), working in his [Relative A’s] business. Thus, he managed to secure both accommodation and work in the locations to which he escaped within Nepal. When the Tribunal put its concerns to the applicant that he did not take his family with him, he said that the people with whom he stayed were not direct relatives, but neighbours. The Tribunal put to the applicant that it was difficult to accept that he would leave his family at the mercy of dangerous Maoists while he travels elsewhere within Nepal, having access to accommodation and work. In response, the applicant said that he lived in Pokhara and Kathmandu with support, and he was not able to bring them with him even though the situation was critical. The Tribunal noted he had not explained why he had not been able to take his family with him, and in response, he said he thought he would get settled in and then accommodate them, and he had no choice. The Tribunal put to him that it appeared that he did have a choice, noting he had spent a significant sum of money to travel to Australia, which he could have used instead to move elsewhere within Nepal with his wife and family. In response, the applicant said he could have done that, but he met someone who told him there are human rights in Australia so he thought he could bring his family later. The Tribunal has considered the applicant’s explanations but does not find them persuasive. The Tribunal considers that the applicant’s claim that his family were threatened in April 2011; he left them in the village despite them being at risk, they remained at risk such that he had to move his family in 2015 to make them safe, is inconsistent with his lifestyle in Nepal after he left in the village. The Tribunal considers this undermines his claims.

10. The Tribunal has taken into consideration the claim in the applicant’s statement that the Maoists were after young men, however the Tribunal does not accept this explains why he left his family behind, given his evidence to the Tribunal that he feared for his family from 2011 to date.

11. Fourthly, the Tribunal was concerned that the applicant had given further inconsistent evidence about the whereabouts of his family throughout the process. As noted above, the applicant initially told the Tribunal that his family had lived the whole time in [his home town], and it was only when the Tribunal was putting concerns that he changed his evidence and said that he moved his family from [the home town] to Pokhara in 2015.

12. However, as put to the applicant pursuant to s.424AA of the Act, this was inconsistent with evidence he gave at his Entry Interview in 2013[4]. At that time, he gave evidence (in answer to questions about his emergency contact (his wife), details of his wife, and details of his [children], that they were all residing in Kathmandu. In response, the applicant said he had never said that his family live in Kathmandu. When the Tribunal showed him the relevant document, the applicant responded that the address for his family at that time should have been his father’s address in [home town]; maybe he had given the wrong address at the Entry Interview.

    [4] The Tribunal showed the applicant the Entry Interview document at folio 85 of the Departmental file, and drew his attention to paragraphs 20 to 24.

13. The Tribunal has considered the matters referred to in comments by the Full Federal Court in MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 at paragraphs 56-57 in which they caution decision-makers against reliance on omissions in the initial entry interviews. However, noting that this is not an omission, but an inconsistency about where the applicant’s wife and children were residing, and noting his further inconsistent evidence on this matter, the Tribunal is not prepared to give the applicant the benefit of the doubt and accept that this was a mistake in his Entry Interview. The Tribunal considers that his changing evidence undermines his credibility, and indicates that he and his family were residing together in Kathmandu before he left for Australia.

14. Fifthly, the Tribunal found it difficult to accept that the applicant was able to live in Nepal (in Pokhara and then Kathmandu) for 19 months after the threats by the Maoists and their claimed persistence in wanting him to join them, and he suffered no harm. When the Tribunal put this concern to the applicant, he said that the reason why he moved to Kathmandu was because they found out that he was in Pokhara. The Tribunal had concerns about his claim that the Maoists had found out that he was in Pokhara, as he claimed that his family had told the Maoists that he was there. The Tribunal put to the applicant that it did not make sense that after having lived in Pokhara for 11 months as claimed, his family suddenly told the Maoists where he was. The applicant claimed that they had to say, otherwise they would have their own problems. The Tribunal does not find this explanation persuasive, and considers that if the Maoists were targeting the applicant as he claims, they would have approached his family, and placed pressure on them much earlier to find out his location. The Tribunal considers his ability to live without harm in Nepal for two years after the claimed threats (four months in his home, and 19 months with relatives/neighbours elsewhere in Nepal), given the country information provided by the agent that there was a widespread operation of Maoists throughout Nepal, undermines his claim that he was targeted by Maoists.

15. The Tribunal’s concerns in this regard are heightened when considering the applicant’s evidence that he is a target for the Maoists (and has been since 2004), and his agent’s assertion that he was targeted because he was an influential and known member of the village, leading to a perception that his prominent role in the village meant that if he joined the Maoists, he could easily influence others in the community to join them as well. The Tribunal considers that these assertions are undermined by his evidence that nothing happened to him when he lived in his home village between 2004 and the request to join the Maoists in April 2011, in the context of the claim made in his statement that: for many years, the Maoists would come to their village; they intimidated and threatened them that they could come and take them at any time to assist in their activities; his family and he lived in fear that they would come at any time to take him again and use him in their criminal activities. Further, the Tribunal considers those assertions to be undermined by the applicant’s evidence that he suffered no harm (other than threats) and that he was not recruited by force to join the Maoists even after the claimed threat in April 2011. The Tribunal considers that the Maoists have had plenty of opportunity to target and forcibly recruit the applicant, or even to kidnap or harm his family to force him to join them, but they did not do so, and the applicant’s actions indicate that there was no genuine fear of harm from the Maoists.

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

    Other matters

17. The Tribunal has considered that the applicant may have been nervous throughout the proceedings, however it does not accept that this can explain the difficulties with his evidence. Further, the Tribunal has considered the applicant’s explanations that there have been some mistakes and he doesn’t know how they happened and maybe he has forgotten things. While the Tribunal accepts that mistakes can be made, the Tribunal notes that many of the inconsistencies arise with his statement and application form, the contents of which he claimed he was aware of at the time. The Tribunal notes that when asked, the applicant said that he agreed with the contents of the application form and statement; not only had he read them, but also they had been read back to him. Further, while the Tribunal accepts that the events of 2011 were some five years ago, it is not satisfied that the passage of time can explain the significant difficulties with the applicant’s evidence. The Tribunal notes that the applicant claims to have had 10 years of education, and to have repeated two years. The Tribunal observed the applicant at hearing, and considered that he was able to understand questions, issues, and the information put to him pursuant to s.424AA of the Act, and provide answers. The Tribunal is not satisfied on the evidence before it that the applicant was not able to give evidence and present arguments at hearing, nor that his ability to present his case was affected adversely by his level of education, or for any other reason.

18. The Tribunal has considered the country information provided by the applicant’s agent concerning Maoists[5]. While the Tribunal accepts, on the basis of that country information, that during the decade-long armed conflict, Maoists punished persons deemed to have misbehaved or targeted them because of their active or symbolic opposition to the Maoist movement, and they abducted people to force them to join their movement, and that, as at 2010, some Maoists (such as the YCL) have continued after the end of the conflict to harass and intimidate opponents, and that the ability of the Nepalese authorities to provide protection is compromised by corruption, politicisation and inefficiency, it is not prepared to accept that the country situation can corroborate the applicant’s claims, given the Tribunal’s significant concerns with the applicant’s credibility.

    [5] As referred to in the submissions dated [in] November 2014.

    Credibility summary  

19. Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and the applicant has fabricated an account of events upon which he has based his protection claims.

    Findings of fact on the applicant’s claims

20. The Tribunal does not accept that the applicant has provided truthful evidence about his claims concerning Nepal, nor about the Maoists continuing to search for him even after he has left the country.

21. On the basis of the adverse credibility finding, the Tribunal does not accept that the applicant (or his family) has been targeted by the Maoists or any organisations, groups or persons, nor that he was abducted and held and subjected to forced labour for three days by Maoists in 2004, nor that he lived in fear of being targeted by the Maoists to further assist them, nor that he was directly approached, harassed, or threatened or searched for over a long period of time with the intention of forcing him to join them. The Tribunal does not accept that the Maoists were interested in or attempted to have the applicant join them. The Tribunal does not accept that he had an active social lifestyle or any influential or known profile in the village, nor that he was perceived by Maoists or anyone else as having a prominent or influential role in the village.

22. The Tribunal does not accept that the applicant or his family have ever come to the adverse attention of any person, organisation, or group leading to harm, nor that the Maoists have made enquiries about the applicant to his family.

23. The Tribunal does not accept that any of the consequences flowing from the applicant’s claims are true (such as living in hiding in Pokhara or in Kathmandu or his reasons for coming to Australia or that his family have lived in hiding or that he had to move his family last year). The Tribunal does not accept his assertions that he fled Nepal in fear, and that he faced harm at the time from any persons, group, organisation.

    Return to Nepal

24. The applicant told the Tribunal that although he had moved away from his place of birth in [District 1], his official address remained recorded as [District 1]. The Tribunal is prepared to accept that the applicant was born in [District 1] and that although he was recorded as a permanent resident of [District 1] (in accordance with the photocopy of the birth certificate he provided to the Department dated [in] June 2013, at which time he was not living there because he was in Australia), prior to coming to Australia, he was living in Kathmandu. Further, as put to the applicant at hearing, the Tribunal considers it more likely that he was residing with his family in Kathmandu prior to coming to Australia.

25. The Tribunal notes his claims to have worked in Australia as [an occupation], and that he worked in Nepal. The Tribunal considers that he will return and live with his wife and children in Kathmandu, and will find work as he has done in the past. The Tribunal put to the applicant at hearing that if it did not accept his claims, it would appear that he could return, and live in Nepal, and would not face a real chance of serious harm or a real risk of significant harm. Further, in its discussions, it indicated that it appeared there was nothing in the country situation as set out in the DFAT Report to which the Tribunal is required to have regard, to indicate that he would face a real chance of serious harm or real risk of significant harm in Nepal. In response, the applicant said that in his country there is no proper safety, unlike in Australia, and anything can happen to anyone at any time. The Tribunal put to the applicant that this seemed speculative, and it asked for clarification: whether he was talking about fearing harm from the Maoists in his particular circumstances, or harm for a different reason, and he responded that he was talking about the Maoists (in his particular circumstances). The Tribunal has not accepted that the applicant’s claims about the Maoists are true: the Tribunal does not accept that the applicant ever has been perceived as being an opponent or target of the Maoists in the past. The Tribunal does not accept that there is reason to believe that the applicant will be perceived as an opponent or target of the Maoists in the future. It does not accept that they would seek to punish him for running away, as it does not accept that he ran away from them, nor does it accept that there is evidence to support that he faces a real chance or a real risk of being sought after by the Maoists to join them in the future, nor that if he does not join them, he will be harmed or killed. The Tribunal is not satisfied that the applicant faces a real chance of serious harm in the reasonably foreseeable future or a real risk of significant harm from the Maoists. In coming to this conclusion, the Tribunal has considered the submissions and country information which state that (as at 2010), Maoists are still targeting opponents. The Tribunal is not satisfied however on the evidence before it, that the applicant faces a real chance or real risk of being considered an opponent of the Maoists.

26. The applicant did not appear to claim that he faced harm from the Maoists and then in his particular circumstances (which the Tribunal has not accepted). The DFAT report notes that the overall security situation throughout Nepal has dramatically improved since the end of the conflict and it assesses that while violence occurred in the aftermath of the release of the new Constitution and Maoist/and disillusioned splinter groups continue to threaten a return to bandhs (strikes) and or violence, the overall risk is low[6]. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of serious harm or real risk of significant harm from Maoists.

    [6] Paragraphs 2.34, 2.35, 3.39

27. The Tribunal also notes that the submissions refer to country information relating to corruption and bribery with the police, discrimination and sexual violence, however these issues are referred to in the context of in adequate state protection in the face of harm from the Maoists. The Tribunal is not satisfied that there is a real chance or a real risk that the applicant faces a real chance of serious harm or a real risk of significant harm or will require access to state protection in Nepal.

    Summary

1. The Tribunal is not satisfied that the applicant faces a real chance of serious harm for any reason or from any person or organisation/group.

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

   Complementary Protection

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

4. The Tribunal considers that the applicant will return to Kathmandu, continue living with his family members, and will work, as he has done in the past.

5. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm.

   Conclusion

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

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

8. 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

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

   Christine Cody

   
   

   Member

   ANNEXURE A - RELEVANT LAW

10. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa.

    Refugee criterion

11. 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).

12. 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.

13. 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.

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

15. 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.

16. 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.

17. 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.

18. 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

19. 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’).

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

    Section 499 Ministerial Direction

21. 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.