1419983 (Refugee)

[2016] AATA 4236

1419983 (Refugee) [2016] AATA 4236 (13 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419983

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Rachel Homan

DATE:13 July 2016

PLACE OF DECISION:  Sydney

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

Statement made on 13 July 2016 at 4:13pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who the Tribunal accepts is a citizen of Nepal, applied for the visa [in] January 2013 and the delegate refused to grant the visa [in] November 2014. The application was refused because the delegate was not satisfied that Australia owed protection obligations to the applicant under either the Refugees Convention or the complementary protection provisions in s.36(2)(aa) of the Act. This was the second application for a protection visa made by the applicant. The first application was made [in] June 1999 and refused [in] June 1999.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

5. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). The Tribunal notes that the applicant’s representative has requested that the Tribunal defer its decision pending a Federal Court appeal expected to address this issue. However, relying on the authorities referred to above, the Tribunal has proceeded to consider the applicant’s claims only in relation to s.36(2)(aa).

6. A person may meet the criteria for the grant of a protection visa in s.36(2)(aa) 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.

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

   Visa application

8. According to information provided in his visa application, the applicant is a [age]-year-old Nepalese national, originally from [Town 1], Nepal. Prior to departing Nepal, the applicant had been living in Kathmandu for a period of just over six years. The applicant identified as belonging to the Hindu religion and ‘Nepalese’ ethnic group. The applicant declared that he had never been married or in a de facto relationship. The applicant stated that his parents, [and siblings] continued to reside in Nepal. The applicant completed his high school education and studied toward a tertiary qualification at [an educational institution] in Kathmandu between 1990 and 1995.

9. The applicant arrived in Australia as the holder of a student visa [in] April 1996. The applicant provided details of the passport on which he travelled to Australia and stated that his current passport was issued to him in Australia in November 2000.

10. The applicant claimed at Question 44 of Part C of his application form that he was from the [a particular] area of Nepal. The applicant stated that he was attracted to communist political ideologies because of their concern for social justice. The applicant joined the student union of the United People’s Front. After 1990, the United People’s Front (SJM) split and the applicant started supporting the hard-line front of the Maoists. The applicant claimed to have been an active member of the Maoist hard-line faction since 1992. The applicant claimed that he would be targeted by anti-Maoist political parties and security forces due to his affiliation with the Maoist hard-line and faced a real risk of harm including torture, inhuman, cruel and degrading treatment.

11. In addition, the applicant claimed that he would be perceived as wealthy person due to his stay in Australia of more than [number] years. As a result, the applicant feared he would be abducted to extort money by criminal elements and those opposed to the Maoists.

12. The applicant feared that even if he moved to other parts of Nepal he would continue to face harm due to his political affiliation. The applicant claimed that he would not get adequate state protection because the Nepalese security forces still have hatred towards Maoist hard-liners.

13. The applicant submitted with his visa application copies of his previous Nepalese passports.

14. A more detailed statutory declaration, made [in] June 2014, was submitted to the Department, together with written submissions of the same date, prepared by the applicant’s representatives.

    Statutory declaration – [date] June 2014

15. According to his statutory declaration, the applicant failed to attend the Refugee Review Tribunal hearing in relation to his first protection visa application because his previous lawyer had not advised him of the hearing time.

16. The applicant stated that from childhood, he was attracted towards communism and socialism. The applicant stated that due to the activities of the monarchy and capitalist parties, the gap between the poor and rich in Nepal continued to widen. The applicant expressed the view that the country belonged to all people and not only to the rich or elite. The applicant expressed the view that the only way poverty could be eradicated was to implement the ideas introduced by Mao Zedong.

17. The applicant claimed to have been involved in the United People’s Front of Nepal (Sanyukta Janamorcha Nepal or SJM) from mid-1990. The applicant claimed to have been actively involved in grassroots promotion of the ideas of Maoism and, as a consequence, faced harm and intimidation from anti-Maoist activists.

18. When the hard-liners within SJM, under the leadership of Prachandra separated and formed their own party, the applicant supported the hard-line Maoists. During that period, as a political activist, the applicant engaged in political activities such as helping the party to organise meetings, distributing flyers, and engaging in door-to-door campaigning.

19. The applicant claimed to continue to support the Maoists following his arrival in Australia in April 1996. The applicant claimed that if returned to Nepal, he would continue to engage in political activity supporting the Maoists. The applicant claimed to be interested in the hard-line Maoist party formed in 2012. The applicant feared that, if returned to Nepal, he would be targeted by anti-Maoists and would not get state protection because the current government is against the Maoists. The applicant claimed that if he moved to other parts of Nepal, he would continue to face harm because he would continue to promote and engage in political activities in support of the hard-line Maoists.

    Representative’s submission

20. The applicant’s representative’s submission set out an additional claim that the applicant feared harm from both the Maoists and anti-Maoists. The submission states that the applicant would be perceived as a defector by the Maoists.

21. The representative’s submission provides citations for 34 items of country information relating to the political and security situation in Nepal; five items of country information in relation to the issue of whether India could be considered a safe third country for Nepalese who feared harm from Maoists; and citations for three RRT decisions said to be relevant to the applicant’s case.

22. Although the submission states that the application is for a ‘complementary protection visa under section 36(2)(aa)’, legal submissions were made in relation to both the refugee and complementary protection criteria.

    Protection visa interview

23. The applicant was interviewed by an officer of the Department of Immigration [in] June 2014 and the Tribunal has listened to a recording of that interview. The interview was conducted with the assistance of a Nepali interpreter although the applicant elected to communicate predominantly in English.

24. At the interview, the applicant stated that he had requested forms to apply for a new Nepalese passport but was waiting to receive them.

25. The applicant confirmed that he had resided in Kathmandu for approximately 6 years before leaving Nepal.

26. The applicant stated that he was a student cadre for the Maoists when the movement was first starting. The applicant stated that he joined the SJM at his college in around 1991. The country was not going well at the time and there was lots of corruption. The monarchy was not working for the country. The applicant was interested in social justice and supported the SJM for the remainder of his college life. The applicant stated that he joined meetings and talked to people about their ideologies. Sometimes he would hand out flyers.

27. The applicant was asked what harm or intimidation he faced whilst in Nepal. The applicant responded that they always had to be careful and were afraid of being punished. The authorities under the Nepalese Congress government would come and tell them to stop their activities and threaten them with jail and torture.

28. After the applicant left Nepal, the Maoists’ ideologies became more extreme, although the applicant claimed that when he was involved with them they were peaceful.

29. The applicant demonstrated a basic understanding of recent events in Nepalese politics and identified some of the leaders of the Maoist party he claimed to support.

30. The applicant claimed that his name continued to appear on a police terrorist list. The applicant was asked how he had obtained a new passport if his name was on a terrorist list.  The applicant stated that he had a right to obtain a passport as a Nepalese citizen. The applicant said he was not regarded as a high-level terrorist.

31. The applicant said there were a number of reasons why he could not go back to Nepal. The party he worked with would regard him as an opportunist for coming to Australia and leading a better life here. People from the applicant’s village or his political rivals may wish to take revenge on him because of his past activities. People may also wish to harm or kidnap him because he would be perceived as wealthy. The applicant would have to start over again in Nepal, despite not having completed his education, and would be in a difficult financial position.

    Review application

32. The applicant provided no additional evidence or submissions to the Tribunal prior to the hearing. The applicant was represented in relation to the review by his registered migration agent.

    Tribunal hearing

33. The applicant appeared before the Tribunal on 8 June 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant’s representative attended the hearing.

34. The applicant told the Tribunal that he left Nepal because at the time the political situation was tense and there were lots of strikes. As a hard-liner and being involved in student politics the applicant faced harm including a threat from police.

35. The Tribunal asked the applicant to talk more about his political activities. The applicant said that when he was a student, democracy was new and many political parties were being created. The applicant became a member of SJM. The applicant followed their instructions and did things that he now realised were not good. The applicant said his name had been published in journals and newspapers but he was unable to provide those articles. The applicant decided to leave the country and obtained an Australian student visa in order to do so.

36. The Tribunal asked the applicant to talk more about his activities with the SJM, noting that he claimed to have done bad things. The applicant said he had harmed people and broken things, been involved in strikes and vandalised property.

37. The Tribunal asked the applicant about the media reports in which he had been named. The applicant said he was named in a few weekly magazines and newspapers, including a publication affiliated with the Nepali Congress and a national publication. The Tribunal asked the applicant why his name had been published. The applicant’s evidence initially indicated that he was a front-liner and used to lead a team or group on campus. The applicant then said he was just a member and did not hold any particular position within the party as he was too young.

38. The Tribunal put to the applicant that it was having difficulty understanding why, if he was just an ordinary student member of the party, his name was appearing in national publications. The applicant stated that his party rivalled the Nepali Congress. Although his group was small, they were involved in daily strikes and came to the attention of journalists. The applicant said there were around 50 members of his group on campus. Although he was not the leader he was heavily involved together with others.

39. The Tribunal asked the applicant why he was unable to provide copies of the articles in which his name was mentioned. The applicant said it would be difficult because he is in Australia and, at the time, IT facilities were not easily available. The Tribunal noted that due to the passage of time it may now be difficult to find copies of the articles but also noted that the applicant failed to submit any evidence of this kind in his first protection visa application, which was made much closer to the events in question. The applicant responded that he had lost contact with his representative and so had not been able to submit the evidence at the time. The Tribunal asked the applicant whether he had copies of the articles at the time. The applicant said he didn’t have them but would have been able to provide them by asking someone in Nepal to send them.

40. The Tribunal asked the applicant about the threat from police he had mentioned. The applicant said he was arrested and detained because of his political activities. He was not detained for long, just until things calmed down, then released. Asked how long he was detained for, the applicant said one or two weeks. The Tribunal asked whether there was a warrant for his arrest or whether he had ever been charged or prosecuted. The applicant said there was no warrant but he was just arrested whenever he was involved in attacks. The applicant said this had occurred three or four times.

41. The Tribunal asked the applicant why he would be released after one or two weeks if the police were seriously concerned about him. The applicant responded that they were young and generally just warned then released. The Tribunal asked whether the applicant was concerned that the police were interested in him at the time he left Nepal. The applicant said he was concerned because the police and his political rivals were after him. The Tribunal asked the applicant why he thought the police were after him if, as he said, he was released after one or two weeks each time he had been arrested. The applicant said he they were watching him.

42. The Tribunal put to the applicant information which it considered would be the reason or a part of the reason for affirming the decision under review pursuant to s.424AA of the Act. The Tribunal put to the applicant that in his first protection visa application in June 1999, the applicant had submitted a written statement setting out his claims for protection. That statement claimed that the applicant participated in student politics and was an active member of the student union then became an active member of a Maoist group in 1992. When the group split, the applicant supported the hard-line faction. The applicant claimed that his name was listed in a police record and his family had suggested that he should not return because of the possibility of persecution. The statement made no mention of the applicant being arrested or detained whilst in Nepal. The Tribunal explained that the claims the applicant had made at hearing were significant and, if true, it expected that they would have been mentioned in the written statement. The Tribunal also noted that the claims were not made in the written material accompanying the present protection visa application. The Tribunal explained that if it were to rely on that information, the Tribunal might not accept that these and other claims the applicant had made were true.

43. The applicant responded immediately saying he had been arrested whilst involved in strikes but perhaps he hadn’t mentioned it elsewhere because there was no formal warrant or charge. The applicant declined the offer of additional time to comment or respond. The applicant’s representative, however, requested that the applicant be allowed a week to make any additional comments or response. The Tribunal agreed to wait until at least the close of business of 15 June 2016 to receive further evidence.

44. The Tribunal noted that the applicant arrived in Australia in April 1996. The applicant applied for his first protection visa in June 1999. The Tribunal asked the applicant why he had waited for more than three years to make his first protection visa application. The applicant responded that he had a student visa. The applicant’s family told the applicant that the party he had been involved in had become more aggressive and it was very dangerous to go back. They suggested that the applicant would be forced to engage in bad activities and advised him to remain in Australia.

45. The Tribunal noted that it had been more than twenty years since the applicant was last in Nepal. In the intervening period, the political environment in Nepal had changed significantly. The Tribunal asked the applicant why he thought it might be dangerous for him to go back to Nepal now. The applicant stated that people would think he had earned lots of money after spending a long period of time overseas. The applicant’s physical and mental condition was not good and his financial position was poor. The applicant had not had contact with his family for a long time.

1. The Tribunal asked the applicant whether he still had any concerns arising from his past involvement in student politics. The applicant said he had already quit politics and due to his age, would not be involved in student politics again. Asked whether he thought the police might still be interested in him due to his past activities, the applicant said he had heard of people being arrested because of their past activities upon return to Nepal.

2. The Tribunal asked the applicant whether he feared being harmed by people who were opposed to the Maoists. The applicant stated that the SJM were hard-line and some of their rivals may wish to take revenge. The Tribunal asked the applicant whether anyone would still remember him after twenty years. The applicant said it might be possible. The Tribunal put to the applicant that given the passage of time and the change in the political landscape in Nepal, it was not clear that there was a real risk of anyone still holding a grudge against him. The applicant said it might appear there was no risk but old issues were dug up again and again in Nepal.

3. The Tribunal noted that the applicant had claimed that members of his own political party may wish to harm him. The applicant said it may look like he had betrayed them by coming to Australia. The Tribunal again put to the applicant that given the passage of time and the change in the political landscape in Nepal, it was not clear that there was a real risk of anyone from his former party still wishing to harm him. The applicant responded that there was still a possibility. The Tribunal indicated to the applicant that its task was to determine whether the chance or risk of harm now, or in the reasonably foreseeable future, was real as opposed to remote. The applicant stated that in his home district he had friends in different parties and there was lots of political activity.

4. The Tribunal asked the applicant whether he would go to his home district given that he had lived in Kathmandu for five or six years before leaving Nepal. The applicant said he could not stay in Kathmandu as he had nothing there. The applicant agreed he had lived in Kathmandu before leaving Nepal and also agreed he had siblings living there but said he had no contact with them at the moment. The applicant said he would have to return to his home district because he had no home in Kathmandu. The applicant said he didn’t think his siblings would support him because he hadn’t contacted them for more than 15 years.

5. The Tribunal asked the applicant whether he had continued to be interested in Nepalese politics in Australia. The applicant said he had but it was a personal interest and he had not been involved in any political organisations or activities. Asked whether he had any interest in resuming political activities in Nepal, the applicant responded that he had no interest in being involved in politics again in Nepal.

6. The Tribunal discussed with the applicant the country information contained in the DFAT Country Information Report for Nepal, set out below. The Tribunal noted that the information suggested that there may not be a real risk of the applicant suffering significant harm as a consequence of his past activities. The applicant responded that the information appeared true. His own party had been splitting and unifying, the situation was an ongoing process.

7. The Tribunal noted that the applicant had also claimed that he did not want to back to Nepal because people might regard him as having lots of money owing to the time he had spent in Australia. The applicant responded that he would be perceived in that way although his actual situation was different. The applicant said he had heard of lots of incidents where people who had returned to Nepal from overseas were being harmed. Asked what sort of harm the applicant feared, the applicant responded that if he was unable to satisfy the demands he might be taken hostage or otherwise harmed because they might think he was lying about his financial position.

8. The Tribunal put to the applicant that it had to consider whether there was a real risk of him suffering this type of harm. The Tribunal discussed with the applicant the information contained in the DFAT report pertaining to this issue, set out below. The applicant responded that he had heard of lots of incidents of this kind involving people returning from other countries. The Tribunal asked the applicant whether his concerns in this regard related only to his home area or also Kathmandu. The applicant stated that he feared the same harm in both locations. The Tribunal asked the applicant how he would be identifiable as someone who had returned from Australia in Kathmandu. The applicant stated that he could be easily identified if he went back to his relative’s place. The Tribunal put to the applicant that Kathmandu was a city of approximately 1 million people and asked how people in Kathmandu would come to know about the period of time applicant had spent in Australia. The applicant stated that Kathmandu is not a big city and he had relatives in Kathmandu as well. People in Nepal generally knew a lot about their neighbours and the information would come out.

9. The Tribunal asked the applicant about his other concerns about going back to Nepal. The applicant stated that, at his age, it would be almost impossible to make a fresh start, he had a lot of things on his mind and his body was not physically fit. The Tribunal discussed with the applicant the statutory definition of ‘significant harm’, and indicated that these types of concerns did not appear to be significant harm for the purposes of the visa. The applicant indicated that he had no response.

10. The applicant said that he had no further claims.

11. The applicant’s representative made brief oral submissions in relation to issue of whether the applicant would be targeted owing to his perceived wealth, citing various sources of country information. The representative undertook to provide further submissions setting out this information.

12. At the conclusion of the hearing, the interpreter indicated that he had some difficulty with some of the words used in the representative’s submissions. The Tribunal asked the applicant, who appeared to have a reasonable understanding of English, whether he felt satisfied that he had been able to understand everything discussed at the hearing. The applicant indicated that he had understood everything. The Tribunal noted that if the applicant did have any concerns in relation to the interpreting, he could notify the Tribunal in his post-hearing submissions.

    Post-hearing correspondence

13. On 14 June 2016, the Tribunal received a brief statutory declaration from the applicant denying that he had said he was a leader of the student group of which he had been a member. The applicant claimed that his evidence had been misinterpreted in relation to this issue and this had seriously affected his overall credibility.

14. On 15 June 2016, the Tribunal received submissions from the applicant’s representative containing citations and extracts from the country information referred to in his oral submissions at hearing, as well as other sources. The submissions concluded that Maoist hard-liners continued to pose a threat in Nepal; overall reported crime has increased throughout Nepal in 2015; expatriates are potential targets due to their perceived wealth; and Maoists continue to be involved in extortion.

    Additional country information

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

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

    …

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

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

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

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

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

    …

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

    Findings

17. The Tribunal is not satisfied that the applicant has provided a truthful account of his involvement in politics in Nepal prior to his arrival in Australia.

18. The applicant has consistently claimed to have been actively involved in the Leftist political organisation, Sanyukta Janamorcha Nepal (SJM) or United People’s Front in the years prior to his 1996 departure from Nepal. The Tribunal accepts the applicant’s post-hearing claim that there may have been some misinterpretation at the Tribunal hearing over the issue of whether or not he was a leader of the SJM on his campus. The Tribunal accepts that the applicant has not claimed to be a leader although it is satisfied that he has claimed to be heavily or actively involved in the group’s activities. Despite this claim, the applicant’s evidence at hearing regarding the nature of his political activities was remarkably brief and lacking in detail.

19. The applicant’s oral evidence to the Tribunal was also significantly different to the evidence provided in his first protection visa application and the written material accompanying the present application insofar as, for the first time, the applicant claimed to have been arrested and detained for periods of up to two weeks on three or four occasions. The Tribunal considers that if this claim were true, the applicant would have made some mention of it, when given the opportunity previously. The applicant’s claim at hearing that he had not mentioned the detentions because there had been no formal warrant or charge, lacks plausibility, in the Tribunal’s assessment.

20. Other aspects of the applicant’s oral evidence were problematic. In relation to the arrests, the applicant claimed that he was always released after things had calmed down and just warned because he was young. In view of this evidence, the applicant’s claims that the authorities and his political rivals were still after him, and his assertion that the police may still wish to arrest him owing to his past activities, seem improbable.

21. The applicant has also claimed to have been part of a group of [students] involved in activities for the SJM on his campus. Although the applicant has claimed that he was involved in daily strikes and other political activities and petty crimes, he was unable to provide a plausible explanation for why his name would have appeared in multiple journal and newspaper articles, including national publications, as claimed. The applicant has not attempted to obtain copies of the articles in question, claiming it would be too difficult.

22. The effect of these features in the applicant’s evidence is that the Tribunal remains unsatisfied that any of the applicant’s claims relating to his involvement in politics as a student are credible. The Tribunal is not satisfied that the applicant was ever a member of the SJM or involved with any other hard-line Leftist or Maoist political group. The Tribunal is not satisfied that the applicant was ever arrested or detained or that his name has ever appeared on any wanted or terrorist list. The Tribunal is not satisfied that the applicant’s name appeared in any publication in connection with any student political activities. The Tribunal is not satisfied that any past or present members of the Nepali Congress, or any other political party or faction has in the past wished to harm the applicant owing to his political affiliations or activities. The Tribunal is not satisfied that the applicant would be viewed by any former member of the SJM or any past or present Maoist party as a traitor or opportunist. As a consequence of these findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm as a consequence of any past political affiliation or activity.

23. In contrast to the applicant’s evidence to the Department, the applicant told the Tribunal that he had no interest in being involved in politics should he return to Nepal. The Tribunal accepts this claim and is not satisfied that there is a real risk of the applicant suffering significant harm as a consequence of any future political affiliation or activity.

24. The Tribunal accepts that the applicant has been absent from Nepal for more than [number] years and has carefully considered his claim, and the country information submitted in support of it, that he would be perceived as a wealthy person and harmed as a result of his stay in Australia.

25. The applicant’s representative referred the Tribunal to country information indicating that instances of kidnapping and extortion, typically by Maoist groups still occur in Nepal. A report from the Canadian Immigration and Refugee Board, dated 26 November 2015, for example, cites reports of separatist groups launching a nationwide campaign to collect funds in order to finance their parties’ activities. However, as discussed with the applicant at hearing, the DFAT Country Report for Nepal, dated in April 2016, suggests that while businesses may be targeted for forced political donations and other forms of extortion including kidnapping, private individuals are ordinarily free from harassment and intimidation.

26. The representative has also referred the Tribunal to a March 2016 Crime and Safety Report for Nepal issued by the US Department of State, Bureau of Diplomatic Security. That report does state that overall reported crime has increased in 2015, particularly following the recent earthquake. Although the report states that expatriates are potential targets due to their perceived wealth, when read in context, the report appears to be referring to nationals of other countries visiting Nepal, for example, as tourists, rather than Nepalese nationals returning to Nepal from abroad. The information contained in the DFAT Country Report indicates that there is a large movement of Nepalese nationals in and out of Nepal each year. DFAT was unable to identify any general concerns about the treatment of returnees and has assessed that returnees are unlikely to suffer any social stigma upon return to Nepal or suffer any adverse treatment from their Government.

27. The applicant has not claimed that he is in fact a wealthy person by Nepalese standards. To the contrary, the applicant has claimed that he would suffer financial difficulties if forced return to Nepal owing to his lack of a home and difficulties he may face finding work as a consequence of not having completed his education.

28. In all the circumstances, the Tribunal is not satisfied that there is a real as opposed to remote risk that the applicant would be targeted by any political party or criminal element for extortion, kidnapping or any other form of crime constituting significant harm.

29. The Tribunal accepts, as claimed in the representative’s submissions, that Maoist hardliners continue to be active in Nepal and have recently engaged in some violent attacks. The Tribunal also accepts that reported crime has generally increased. However, in view of the Tribunal’s findings in relation to the applicant’s political and personal profile and the advice in the DFAT Country Report that the overall risk of political violence is low, the Tribunal is not satisfied that there is a real risk of the applicant being significantly harmed by hard-line Maoists, any other militant group or criminal, should he return to Nepal.

30. The applicant has described a range of other difficulties he would experience if forced to return to Nepal as a consequence of having been absent from that country for [number] years. The Tribunal accepts that the applicant may be unwilling to return to Nepal, and may suffer some hardship whilst he re-establishes himself in that country. Although the Tribunal accepts that the applicant may have lost contact with his Nepalese relatives, his evidence indicates that he has a number of siblings living in both Kathmandu and other parts of Nepal. Even without a [qualification] and at [age], the Tribunal is not satisfied that the applicant would be unable to find any form of employment. The Tribunal is not satisfied that any personal, practical or financial difficulties the applicant has described upon return to Nepal constitutes significant harm as that term is defined in the legislation.

31. Having considered all the claims and evidence, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Nepal, there is a real risk that he will suffer significant harm.

32. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

33. 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

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

    Rachel Homan
    Member