1420697 (Refugee)

[2016] AATA 3778

1420697 (Refugee) [2016] AATA 3778 (13 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420697

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Suhad Kamand

DATE:13 April 2016

PLACE OF DECISION:  Sydney

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

Statement made on 13 April 2016 at 2:53pm

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 applicant, a male national of Nepal, first entered Australia [in] January 2009 holding a Student [visa] granted [in] December 2008. He departed Australia on 2 occasions since that arrival, those departures being between [date] September and [date] October 2009 and [date] November to [date] December 2012. His last substantive visa, a Student visa, ceased [in] May 2013. He applied for a further Student visa [in] 2013, that application being refused by the Department and affirmed by the then Migration Review Tribunal (MRT) [in] April 2014. He applied for the Protection visa the subject of this review [in] May 2014. A delegate of the Department refused to grant the visa [in] December 2014 and the applicant sought this Tribunal’s review of that decision.

2. On the basis of all the evidence before it and for the cumulative reasons given below, the Tribunal has concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirms the delegate’s decision.

3. Relevant law has been included at Appendix 1.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The applicant was born in [date]. He is a national of Nepal and of no other country[1].

   [1] A certified copy of the applicant’s Nepali passport is at  [details deleted], folio 43

5. His express claims and those arising on the evidence are that he fears harm in Nepal from the Nepali community and Nepali authorities, including the Nepali Police, in connection with the following, including cumulatively: his past, present and intended future advocacy for [Country 1] rights and freedom; being a Nepali national who is known to be in a romantic relationship with a [Country 1] refugee in Nepal. He claims that: he has been arrested and brutally mistreated by the Nepali authorities and people who he suspects are “anti-[Country 1]” for reason of his participation in [country 1] protest activities; he remains of adverse interest to the Nepali authorities and community in connection with that profile; his risks of harm are heightened because he was a prominent [professional] in Nepal and was known to advocate for [Country 1] rights and to have given up the potential to [become a professional in] Nepal in order to pursue his fight for [Country 1] rights.

6. In support of his claims he refers to having experienced a number of very serious abuses in Nepal before coming to Australia in January 2009, and also when he returned to Nepal in September of the same year. He also refers to his parents and fiancé [from Country 1] suffering ongoing harm in Nepal in connection with his adverse profile.  All the applicant’s claims are considered in detail below.

   Delegate’s decision

7. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention or under complementary protection. The applicant provided the Tribunal with a copy of that decision record when he appeared before it on 31 March 2016.  

   Issues before the Tribunal

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

9. The Tribunal’s assessment is informed by a range of sources including: the Department’s file relating to the applicant which includes his protection visa application form and documents provided in support, including an extensive statutory declaration sworn [in] December 2014 (2014 Declaration) detailing his circumstances in Nepal; and an audio recording of his Department interview held [in] December 2014, conducted through a Nepali interpreter, which the Tribunal has listened to. The Tribunal’s assessment is also informed by its detailed exploration of the applicant’s claims when he appeared in person before it on 31 March 2016. During that appearance he communicated with the assistance of an interpreter in the Nepali and English languages. He also provided additional written submissions and a statutory declaration sworn on 31 March 2016 (2016 Declaration) in support of his claims. He did not identify any concerns regarding his capacity to communicate his claims and evidence. The Tribunal has had regard to the above as well as 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 – credibility

10. Having had the opportunity to discuss: the applicant’s claims and evidence with him during his 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 applicant’s claims and evidence. While the concerns detailed below are not singularly determinative of the credibility of the applicant’s claims overall, cumulatively, they cast such doubt on his reliability as a truthful witness that the Tribunal cannot be and is not satisfied: that central aspects of the applicant’s circumstances in Nepal are as he has claimed; and/or that the applicant is a person in respect of whom Australia has protection obligations.

11. The applicant’s evidence to the Tribunal regarding his general circumstances in Nepal impressed the Tribunal as being hesitant, changing and unconvincing. For instance, when the Tribunal discussed with him that his Protection visa application form identifies him as not having studied or worked in Nepal beyond 2006, and asked him what he was doing there between 2006 and 2009 when he came to Australia, he offered initially that he finished his studies in Nepal when he was aged [age] and came to Australia when he was [age] or [age].  When asked again what he did in Nepal between the ages of [age] and [age] he said he studied at college, worked in protest activities and played [sport]. Regarding his studies in Nepal after 2006 he said he was admitted to college but did not attend. He then said that after 2006 he passed his college exams. When reminded that his Protection visa application form does not identify any study in Nepal after 2006 he said that he only went to college sometimes but had to mention his college education in his Student visa application. When asked why he hasn’t mentioned that college study in his Protection visa application form he responded that he did not attend college and copied his friends’ notes to pass his college exams. He then said he didn’t mention his college studies in his Protection visa application form because he didn’t mention anything about his studies. The Tribunal informed him that this is not correct as his Protection visa application form responses expressly identify his studies in Nepal up until 2006. He then offered that he isn’t sure why he didn’t mention it. He offered again that, between 2006 and 2007 he spent his time selling [Country 1] advocacy [products] in a shop and attending [Country 1] meetings. He said that he did this for a whole year, although this is not mentioned in his statutory declarations. When asked how he spent his time in Nepal after 2007 he referred only to attending [Country 1] protests and small meetings and helping at the [details deleted]. His evidence regarding the simple issues around his studies and how he spent his last 3 years in Nepal before coming to Australia in 2009 impressed the Tribunal as hesitant and unconvincing.

    Claims of being an activist for [Country 1] rights

12. The applicant claims that, since at least 2002, he has been of adverse interest to the Nepali police and community due to his participation in protest activities/advocacy for [Country 1] rights. He claims that his commitment to this cause was so strong that he gave up the potential to [become a professional in]  Nepal to pursue his desire to advocate for [Country 1] rights. He claims that, despite being abused in the most violent and brutal of ways by the Nepali police, including sexually, in incidents occurring over a period of around 6 years in Nepal before coming to Australia in January 2009, he continued and continues to be committed to advocating for [Country 1] rights. He claims that despite the threats to his life, the lives of his parents and his fiancé [from Country 1] in Nepal, he will continue to advocate for [Country 1] rights if he returns to Nepal. He claims that his commitment is such that he has been involved with a number of [Country 1] organisations in Australia, naming those organisations in his 2014 declaration as [Organisation 1]”, “[Organisation 2]”, “[Organisation 3]”, “[Organisation 4]” and “[Organisation 5]”.[2]

    [2] 2014 Declaration, paragraph 44.

13. Despite the applicant’s stated commitment to the [Country 1] cause, when the Tribunal asked him about which [Country 1] organisations he has been involved with in Australia he mentioned only “[Organisation 1]. He said he was involved with that group in Australia since around 2010. However, in explaining why he did not seek Australia’s protection until May 2014, he said that it was not until he met [Country 1] activists in Australia that he heard of the Protection visa. It is difficult to reconcile his claimed involvement with the [Organisation 1] since 2010 with his failure to seek Australia’s protection until May 2014. While claiming in writing that he has been involved with a number of other [Country 1] groups in Australia, when asked by the Tribunal to name any other [Country 1] linked group he has been involved with in Australia he said he can’t remember their names. When the Tribunal asked how he was able to list so many organisations in his 2014 Declaration he said that his friends helped him to name them when helping prepare his statutory declaration. As explained to the applicant during his Tribunal appearance, his difficulties naming any [Country 1] linked groups in Australia with which he has been involved, other than [Organisation 1], makes it difficult to accept that he has been involved with those groups and raises questions as to the truth of the claims set out in his 2014 Declaration. In response he offered that there is a big [Country 1] community in [Australia] and in meetings he would hear the names of other organisations but he was not directly involved with them.

14. Regarding his interest in [Country 1] rights in Nepal, the Tribunal asked the applicant about the [housing] in which his [Country 1] fiancé lives. This was in the context of applicant telling the Tribunal that he thinks his fiancé supports herself financially through an allowance paid by [a welfare agency], although he appeared unsure of this The Tribunal asked the applicant if he knows who runs and funds the [housing] in which his fiancé has resided for many years. He said he thinks it is the Nepalese Government but he is not sure. As explained to the applicant, in the context of his claimed involvement with that [housing], his fiancé living in that [housing] for many years, and his dedicated advocacy to [Country 1] rights in Nepal since 2002, it is surprising that he seems so unsure about a detail which does not just affect thousands of [Country 1 nationals] in Nepal, but which is directly relevant to the welfare of his [Country 1] fiancé.

15. Compounding the above concerns, the Tribunal asked the applicant if he can name any organisations in Nepal which assist [Country 1] refugees. He said he cannot.[3] As put to the applicant, his inability to identify any past or present organisations assisting [Country 1] [nationals] in Nepal does not support his claimed activism, involvement with and commitment to advocacy for [Country 1] rights, and casts doubt on the truth of his claim that he has a fiancé [from Country 1] who resides in[housing] in Nepal.  

    [3] [Information deleted].

16. Regarding his claimed adverse profile with the Nepal police, in his 2016 Declaration he states that he has had a criminal record in Nepal since 2002 due to his participation in [Country 1 related] protests. However, the applicant has identified having no difficulties departing and entering Nepal on numerous occasions since 2009, obtaining a Nepalese Travel Document from the Nepalese Embassy in Australia, and a Nepalese passport in Nepal as recently as 2012. While he told the Tribunal that he had a friend in the Nepal passport office who helped him get a passport, this does not explain how he obtained a travel document from the Nepalese Embassy in Australia, where he said he has no connections, or why he was able to enter and depart Nepal without incident if he had a criminal record and if he was of such high adverse interest to the Nepali authorities as he claims, particularly given his claim that he destroyed his old passport and obtained a temporary travel document to enter Kathmandu undetected in 2012 “so that while entering Nepal people won’t be able to identify through my passport number easily as people were actively searching me as Kathmandu is the only international airport to enter…”[4] His willingness to approach and engage with the Nepalese authorities is difficult to reconcile with his claims of being brutally mistreated by them on multiple occasions, and his ability to obtain official documentation in his true identity and travel into and out of Nepal without incident using that identity does not impress the Tribunal as consistent with his claim to have or to have had a criminal record or adverse profile in Nepal at any time.

    [4] 2014 Declaration, paragraph 61

17. Of further concern regarding the overall credibility of the applicant’s claims and evidence is this. The applicant told the Tribunal that he came to Australia in January 2009 in order to save his life. In his 2014 Declaration he refers in detail to being arrested, beaten and brutally abused on multiple occasions by members of the Nepali community and Nepali police before coming to Australia. His claims include that, as recently as –[ March] 2008, he had the following experience

    “2008 [March]  me with other activist [Country 1] friends went to Kathmandu for protest all the police came before we started protest and I was caught and taken to Kathmandu police station where I stayed for 2 weeks with 2 other activist friend we were all tortured so badly, they repeated same behaviour and made us eat each other stool, made us naked, and sexually assault they used a wooden stick and put inside my anal, I was going through a lot of pain and was beaten up badly after 2 weeks and I was bleeding through anal then they decided to bail me, no medicine was provided the whole timing and was told never to come around or take part again in this kind of thing anymore, or else they will do even worst than this (sic)”.

18. The applicant submitted no medical or psychological evidence in respect of such disturbing mistreatment. When the Tribunal asked him whether he sought or obtained such treatment he responded that he felt that he did not need medical or psychological attention as he felt he was better by the time he left Nepal and came to Australia. This is difficult to reconcile with the extreme nature of the mistreatment he claims to have experienced on a repeated basis in Nepal.

19. During his Tribunal appearance the Tribunal asked the applicant to describe the circumstances in which he was last arrested in Nepal before coming to Australia on a Student visa in January 2009. That incident, according to his 2014 Declaration, is the one detailed in paragraph 19 above. The applicant responded that the arrest occurred when he was attending a [Country 1 related] protest in Kathmandu [in] March 2008. He told the Tribunal that he was jailed and tortured when he went to Kathmandu to participate in a peaceful protest at [a location]. Police attacked them. He said the police took him and his friends to jail where they beat them with a stick and abused them. When asked how long he was detained by police on that occasion he said it was two days. When asked if any of his friends were also detained he said “maybe five or six” were. When asked how he can be certain of that he said that he and his friends were taken away in the same van by police. When asked when he was released from detention on that occasion he repeated that it was two days after he was arrested. When asked if he saw his friends who were also arrested on his release he said he saw them at a later stage and he thinks they were detained maybe two or three days. When asked if his friends were detained in the same cell as him on that occasion he said “two or three” were. The Tribunal asked why, given the small numbers he is referring to, he cannot be more specific as to whether it was two or three. He said initially that he can’t recall as he was being kicked and abused and then that his friends were in a different cell. Returning to the duration of his detention on that occasion the Tribunal asked the applicant if he can recall whether he was detained for two days and two nights or two days and one night. He said it was two days and two nights. The Tribunal asked if he was ever detained for longer than two days and two nights on any occasion in Nepal. He responded that he never was.

20. As explained to the applicant, the above account differs from that in his 2014 Declaration which indicates that he was detained and tortured in the most brutal of ways on that occasion for a period of two weeks, and that he was arrested with two of his friends, not three, five or six as he mentioned orally during his Tribunal appearance. In response the applicant suggested that he was talking about a different incident in his oral evidence and there was another time when he was detained for two weeks. However, as explained to the applicant, the Tribunal does not accept that as true as it carefully checked with him to ensure it was the same incident being referred to, with him describing it as his last arrest in Nepal before coming to Australia in January 2009, and the arrest taking place [in]March 2008. Further, his oral evidence was also that he had never been detained for longer than two days or two nights.  The Tribunal considers the discrepancies detailed above to be significant and does not consider them to have been addressed or overcome by the applicant’s explanations. The Tribunal considers those discrepancies, in the context of all the evidence advanced, to cast significant doubt on the truth of the applicant’s evidence regarding that arrest and to raise doubts about the applicant’s general reliability as a truthful witness and the truth of his claims overall.

21. The above concerns are compounded further by the following. The Tribunal asked the applicant if there was ever a time in Nepal that he experienced physical harm from anyone other than the Nepali police. He responded by referring to an incident in October 2009, when his parents’ home was attacked when he was not home (during his visit to Nepal from Australia), and to being spoken to rudely at the marriage registration office when he sought to register his relationship with his [Country 1] girlfriend in 2012. He made no reference to the incident referred to in paragraph 25 of his 2014 Declaration in which he claims an [Organisation 1] meeting he was attending [in] February 2008 was attacked by anti- [Country 1] Nepalis who “started stoning at the meeting we all had to run away and some were badly injured”.

1. Despite his claims of having experienced extreme brutality at the hands of the Nepali authorities in the six or seven years preceding his departure from Nepal in 2009, the applicant’s evidence is that he voluntarily returned to Nepal on two occasions including, once between September and October 2009. Despite risking his life to return in 2009 for his [relative’s] funeral, he claims that due to his family being Hindu and the applicant being [another religion], he was not allowed to participate in her funeral rituals[5]. Despite this he remained in Nepal around six weeks. When asked why he didn’t check with his family regarding his ability to participate in his [relative’s] funeral before exposing himself to the risk of harm in Nepal to attend that funeral, he responded only that his [relative] loved him a lot but he could not participate in her funeral rituals at all. He did not explain why he stayed in Nepal for around six weeks. He claimed that he spent his entire six weeks in Nepal hiding at his [Country 1] girlfriend’s home in [location] and that, [in] October 2009 [a number of] people wielding swords and knives entered his parents’ home searching for him and threatening to kill him and to seize his parent’s property. They also warned his father that he may lose his job. Despite these threats and interactions the applicant’s evidence was extremely vague as to who these intruders were, his 2014 Declaration stating that “my parents believe they were maybe anti Tibetans/Maoists/ Nepalese Political party that came inside my house at middle of night”[6].

   [5] 2014 Declaration, Paragraph 32

   [6] Ibid, paragraph 35

2. He claims that following this incident his parents asked him to leave Nepal as soon as possible, so he returned to Australia [in] October 2009. He claims that, on returning to Australia he was depressed, scared and stressed about his family and girlfriend in Nepal. He also expressly states in his 2014 Declaration that he realised that “it was too late for me to fix my study as I was all over and I didn’t finished my studies as by that time my family safety and my girlfriend safety was more important my girlfriend was arrested in accused of hiding me inside [a location] and she was kept in jail for three months this whole 2009 to 2010 became worst timing for me (sic).”[7].

   [7] Ibid, paragraph 37

3. During his Tribunal appearance the applicant struggled to explain why his girlfriend was arrested and detained for three months in Nepal. He offered variously that: they worked together on protest activities for a long time; talk was everywhere that they would get engaged so people tried to stop that happening by complaining to police. When asked what offence he understands his girlfriend was accused of committing he said that they thought she was hiding him. Noting that his evidence suggests that he was the main target for the police, yet he had had multiple interactions with the Nepali authorities on entering and departing legally on his own passport through Kathmandu airport and had remained in Nepal for six weeks without adverse interference from the police, the Tribunal asked why he thinks the police arrested his girlfriend rather than arresting him while he was in Nepal. He responded that he doesn’t know why they didn’t arrest him.

4. The Tribunal also put to the applicant that, from what he says in his Statutory Declaration, by the time he returned to Australia from Nepal in October 2009 he was aware that his student visa compliance was at issue.[8] Also, his evidence indicates that his return to Nepal in September 2009 confirmed his fears that he and his family in Nepal remained at risk of harm there, yet he still did not seek Australia’s protection for another four to five years. As explained to the applicant, while this delay is not determinative of his claims, it does raise questions as to why he did not if his fears of harm and experiences of actual harm were as he has claimed.

   [8] Ibid, folio 37

5. The Tribunal put to the applicant under section 424AA of the Act that the above concerns are compounded by the following. Department records indicate that the applicant applied for a further Student visa [in] June 2013, that application being refused by the Department and affirmed by the then Migration Review Tribunal (MRT) [in] April 2014. The Tribunal explained that it has read a copy of the MRT decision affirming the Department’s refusal which indicates that the review process included the applicant being invited to give oral and written evidence explaining his gaps in study. The explanations recorded as being given by the applicant were to the effect that: his [relative] became ill and died in 2009 so he could not continue with his studies; after being granted a further Student visa in 2011 he continued studying for some time but then stopped because his family did not have the financial resources to continue supporting his studies; his family’s financial situation improved in 2012 so he resumed his studies in September 2012 and completed an eight month course in May 2013. He is not recorded as mentioning having experienced any harm or threats in Nepal, or having a girlfriend or a girlfriend who had been arrested, or a family which was receiving ongoing threats connected to his profile. This information is relevant to the review because his failure to mention any such matters in a forum where it was open and relevant to do so in explaining his study gaps from 2009 to 2014 casts doubt on whether those circumstances are as he has claimed. The Tribunal explained that if it relies on the information particularized above, it may not be satisfied that he is being truthful about his claims of being harmed or threatened in Nepal, or of his claims that his parents or girlfriend have been harmed or threatened in connection with his claimed profile or for any other reason. The Tribunal explained that it may also not be satisfied that he has any adverse profile in Nepal, or that he has a [Country 1] girlfriend in Nepal. These concerns can also have the effect that the Tribunal may not be satisfied that the applicant is a reliable and truthful witness which may lead the Tribunal to not be satisfied that he is a person in respect of whom Australia has protection obligations. The Tribunal explained that he has a right to request additional time to respond or that he may respond immediately.

6. Responding immediately he offered that he didn’t mention those things because he didn’t think they were relevant and he had depression. However, the applicant had earlier told the Tribunal that he had not sought medical or psychological help following his mistreatment in Nepal as he felt better on coming to Australia. He produced no independent evidence of having ever suffered depression. His evidence that he did not think his claimed experiences of brutal mistreatment and the ongoing risks of harm to himself his family and girlfriend in Nepal were relevant in explaining his gaps in study in Australia is not, in the context of all the evidence presented, convincing, and the Tribunal does not accept it as true. The Tribunal considers the information detailed in paragraph 27 above to be significant in casting doubt on the truth of his claims of: being harmed or threatened in Nepal at any time; his parents and/or girlfriend having been harmed or threatened in connection with his claimed profile or for any other reason; having an adverse profile in Nepal; having a [Country 1] girlfriend in Nepal. The above information also compounds the Tribunal’s concerns about the applicant’s reliability as a truthful witness and the truth of his claims to face a real chance of serious or significant harm in Nepal in the reasonably foreseeable future.

7. The above concerns are compounded further by the following. Regarding his return to Nepal in 2012, he claims to have taken that trip at risk to his own life and the safety of his parents and girlfriend in Nepal in order to register his relationship with his [Country 1] girlfriend to enable her to obtain Nepalese citizenship through marriage to him. It is consistent with independent reports that female foreigners in Nepal are able to obtain Nepalese citizenship through marriage to a man who is a Nepali national[9]. The applicant claims that, when he went to Nepal in 2012 he and his girlfriend “went to district office regarding my partner for a Nepalese citizen through me as my partner is a [Country 1 national] and she doesn’t have a citizenship in Nepal so we went there, we were bullied and was warned saying not to come again regarding that matter or else they will complain Nepal police regarding this matters, there was no any other way that we could get legally engaged or get citizenship…”[10]. During his Tribunal appearance the Tribunal explained to the applicant that this account does not appear to accord with Nepalese laws which appear to allow the foreign wife of a Nepali man to register as a Nepali citizen. The Tribunal also: discussed with the applicant that according to the account provided in his 2014 Declaration, it does not appear that he and his girlfriend were married or engaged at the time they approached the district office, so it is unclear on what basis they were seeking Nepali citizenship for her; asked the applicant, given that he claims the sole purpose of his return to Nepal in 2012 was to arrange for his girlfriend to obtain Nepali citizenship, what research or enquiries he made before going there regarding what steps need to be followed to enable his girlfriend to obtain Nepali citizenship (eg, marrying first); asked what steps he and his girlfriend took after being rejected by the district office to facilitate her citizenship in Nepal, for example, whether they thought about getting married and applying again for her citizenship.  In response he offered that he was abused at the district office because of his known [profile]; he had not made any enquiries before going to Nepal as to what steps need to be taken to enable his girlfriend to obtain Nepali citizenship as his partner. He said that after they were rejected and abused by the district office they had a secret engagement at the [location] his girlfriend resides in. When asked why they didn’t marry during that visit, given that that step appears to be critical in enabling his partner to acquire Nepali citizenship, he offered varied responses to the effect: people were looking for them at the time and no one would support their marriage; they couldn’t marry as it would have been rushed; even though he stayed in Nepal for five weeks there was not enough time to marry because he had to travel to Kathmandu to get his new passport; even though he returned to Nepal for the sole purpose of securing Nepali citizenship for his girlfriend, they didn’t take the critical step of marrying as the time passed quickly. These responses impress the Tribunal as evolving and inconsistent with the claimed purpose of the applicant’s return to Nepal in 2012, compounding the Tribunal’s concerns regarding the reliability and credibility of the applicant’s claims and evidence, including his claim to be in a relationship with a [Country 1 national]  in Nepal.

   [9] "Foreign women married to Nepalis finding it easier to get citizenship", Himalayan Times, The, 08 February 2016, (Opens in a new window)

   [10] 2014 Declaration, paragraph 62

8. Compounding those concerns further, the applicant’s oral evidence to the Tribunal regarding his engagement to his  [Country 1] girlfriend in 2012 was both inconsistent with his 2014 Declaration and vague. While stating in his 2014 Declaration that “we engaged without letting  anyone know not even [fiance’s name] relatives only my [Country 1] friends in Australia knew about this but we kept within, as it was not safe for anyone in Nepal”[11] he told the Tribunal that they held a [ceremony] attended by his family and his girlfriend’s friends in [a location]. In relation to this discrepancy the applicant offered only that one or two of his fiance’s [friends] attended, settling later on only two friends attending. He did not explain why his 2014 Declaration suggest a much higher level of secrecy than his oral evidence suggests. When asked to describe his engagement ceremony he offered a vague description to the effect that he and his girlfriend shared garlands, prayed and wore a small necklace. When asked if he has any photographs of his girlfriend, even if only on his phone, he said he does not as he does not keep photos of anyone. The Tribunal considers the vague, changing and inconsistent evidence provided above in respect of the applicant’s relationship with a [Country 1 national], together with his failure to submit any photographic evidence of himself with his claimed fiancé, to be significant in the context of the cumulative credibility concerns identified in the balance of the Tribunal’s reasoning. On the evidence before it, the Tribunal does not accept that the applicant had, has or is/was perceived to have had a romantic relationship with a [Country 1 national] or that he is engaged, intending to be engaged or in a relationship with a [Country 1 national].

   [11]2014 Declaration, paragraph 63

9. Considering all the evidence in its totality, as considered above, the Tribunal has significant concerns regarding central aspects of the applicant’s claims and evidence which have not been overcome by the totality of the evidence presented. Based on the evidence before it, the Tribunal does not accept that the applicant: was or is in a romantic relationship with a [Country 1 national] or that he is perceived to be in such a relationship; the applicant was, is or intends to be an advocate for [Country 1] rights in Nepal. While the Tribunal is mindful that the applicant has provided photographic evidence of his participation in pro-[Country 1] activities, his oral evidence to the Tribunal was that those photographs depict him participating in such activities in [Australia]. He said his friends in Australia took the photos for no particular reason. As explained to the applicant, the Tribunal must, in considering any activities he has participated in in Australia, disregard that conduct in assessing whether he has a well-founded fear of refugee based persecution unless it is satisfied that he engaged in that conduct otherwise than for the sole purpose of strengthening his claims to be a refugee: s.91R(3). While the applicant denied that this is why he participated in pro-[Country 1] activities in Australia, and while the Tribunal accepts that he has participated in some pro- [Country 1] activities in Australia, on the basis of all the evidence before it the Tribunal does not consider this to reflect a long-standing or genuine interest in [Country 1] rights or a genuine desire to fight for [Country 1] rights in the past, present or reasonably foreseeable future. Such a desire is not supported by the balance of the evidence considered above. The Tribunal finds, for the purposes of section 91R(3) of the Act that the applicant attended and engaged in pro-[Country 1] activities and allowed himself to be photographed participating in such activities in Australia for the sole purpose of strengthening his claims to be a refugee. Regarding the implications of that conduct more generally, there is no evidence before the Tribunal to suggest that the applicant’s participation in pro-[Country 1] activities in Australia would be known or suspected in Nepal, or even if it was, that this, without more, would give rise to a real chance of serious or significant harm to the applicant, as contemplated by the relevant law annexed, in the reasonably foreseeable future. The Tribunal finds that, while the applicant has participated in such activities in Australia, he has no genuine intention or interest in participating in such activities in Nepal in the reasonably foreseeable future.

10. The Tribunal is mindful that the applicant was accompanied to his Tribunal hearing by a friend [witnesses name], who was identified by the applicant as an intended witness. The applicant told the Tribunal that this witness had translated into English the applicant’s two statutory declarations provided in support of his Protection visa application as well as assisting him to prepare his Protection visa application form. The witness told the Tribunal that: he obtained an Australian Protection visa as Nepali national holding a public profile as well as being a [Country 1] activist in Nepal; and his wife, a former [Country 1 national], is the sister of the applicant’s claimed girlfriend. While the Tribunal took some evidence from the witness, as discussed with the applicant, given that the witness assisted to prepare the detail of the applicant’s claims, the Tribunal does not consider him to be an entirely independent witness, and his intimate knowledge of the applicant’s claims and evidence would make it of little benefit test the detail of those claims through the witness’s evidence.  The applicant indicated that he understands and that there is nothing in particular that he wishes the Tribunal to ask the witness about.

11. Based on all the evidence before it and the cumulative considerations and concerns detailed above, the Tribunal does not accept that the applicant or any member of his family or friends  have been harmed or threatened in any way in Nepal in the past, or that he had or has any profile as a Nepali national who advocates for [Country 1] rights or as a Nepali national in a romantic relationship with a [Country 1 national]. The Tribunal does not accept that the applicant is or ever was in a romantic relationship with a [Country 1 national] in Nepal or that he is or was involved in any activities advocating for [Country 1] rights. The Tribunal does not accept that the applicant has a genuine interest or intention to advocate for [Country 1] rights and is not satisfied that he has any interest in participating in such activities should he return to Nepal. The Tribunal does not accept that the applicant has any adverse profile in Nepal, or that he would have any such profile for any reason claimed or arising on the evidence which would give rise to a real chance of serious and/or significant harm in the reasonably foreseeable future. 

    CONCLUSIONS

12. 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).

13. 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).

14. 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

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

    Suhad Kamand
    Member

    
    

    ANNEXURE 1

    RELEVANT LAW

    1. 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

    2.    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).

    3.    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.

    4.    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.

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

    6.    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.

    7.    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.

    8.    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.

    9.    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.

    10.      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.

    11.      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

    12.      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’).

    13.      ‘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.

    14.      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

    15.      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.