1420759 (Refugee)

[2016] AATA 4865

1420759 (Refugee) [2016] AATA 4865 (15 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420759

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Meena Sripathy

DATE:15 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 15 August 2016 at 3:54pm

CATCHWORDS

Refugee – Protection Visa – Nepal – Real or imputed political opinion – Unified Communist Party of Nepal (Marxist Leninist) – Pressured to join Maoist militia – Victim of kidnapping – Forced recruitment – Fear of harm from Maoist groups – Security situation improved – Third country protection – Witness credibility – Vague evidence of political involvement

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499

Migration Regulations 1994, Schedule 2

CASES
MIMA v Rajalingam (1993) FCR 220

Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 claims to be a citizen of Nepal, arrived in Australia by boat [in] April 2013. He applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] December 2014.

3. The issues in this review are whether the applicant has a right to enter and reside in a third country; if not, whether he has a well-founded fear of persecution in Nepal for one or more of the five reasons set out in the Refugees Convention; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Nepal, there is a real risk that he will suffer significant harm.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

5. Information provided by the applicant in his application form indicates he is a [age] year old married man from [District 1], Nepal. He speaks reads and writes Nepali and speaks and reads basic Hindi.  He holds Nepali citizenship.  He arrived in Australia [in] April 2013, without a travel document. His family comprises his wife, one daughter, his parents and one brother who all reside in Nepal. Prior to coming to Australia, he lived from 2004 to 2008, and again from 2012 to 2013 in India.  He transited through [various countries] on his way to Australia in 2013.  He provided [a number of] different addresses in [District 1], and one in Kathmandu, in Nepal for the periods he lived there since birth. He lived at [a location] in India from 2004 to 2008 and [in City 1 in India] in 2012. He is educated to [a particular] level at school. He worked as a [occupation] in [City 1] for 5 months from August 2012.

6. In his reasons for leaving his country he stated that he was persecuted and threatened by Maoists because of his real and imputed political opinion.  He indicated that he has been kidnapped, beaten, forced to work for the Maoists and threatened under duress.  He fears he will be killed, tortured or harmed in some other way. He does not believe the authorities are capable of protecting him.  His family and he will be at risk if he makes a report to the police. 

7. In a Statutory Declaration dated [in] September 2013 the applicant provided the following further details of his claims for protection:

   ·He joined a student union group called Akhil Nepal Vidyarthi which is associated with the Unified Communist Party of Nepal (UCPN) when he was [in a particular year at school] in about April 2000. He held the title of [title] and was involved in [details of role in the group] and dissemination of information about the party.

   ·After about one month of belonging to the student union he was approached by the commander of the Maoist Militia along with [a number of] soldiers.  They pressured him to leave the union and join them and threatened him if he refused. He refused and they verbally abused and threatened him.

   ·In about [2000] they came to his [house] and abducted him.  They took him to a [village].  They beat him there and again threatened him to join their party.  He was beaten daily, and forced to [undertake various tasks]. At night he was locked in a small room. He escaped after [a number of] days by running [away] while the security guard was asleep.

   ·He did not return home because he was afraid the Maoists would find him.  He stayed in a room he [rented], paid for by the student union.  He continued his political involvement in the student union.  He [undertook various tasks supporting the group]. 

   ·He was able to undertake student union activities for some time without being affected by the Maoists because the Nepali Army and Police were strong in the area. 

   ·In [2004] the Maoists attacked the [government holdings] in the [district].  [A large number of] people were killed in this incident.

   ·[A number of] days after this incident he received a phone call at home from the Maoists threatening to kill him because he refused to join them. He fled his house and went to live with a friend. After staying with him for [a number of] days they travelled together to [India]. 

   ·While he was in India, the Maoists told his father they had killed him.  He stayed in India for 4 years, in a camp. He did not undertake any training or deployment.

   ·He decided to return home after the Maoists came into Government in Nepal because he thought they would no longer act illegitimately. He returned to his village and re-joined the Youth Force associated with UCPN.  He became [an official] of the group. He lived peacefully for 1-2 years until his problems started again.

   ·The Maoists put pressure on him to join their own Youth Force (YCL). He eventually left [District 1] for Kathmandu in 2011 because of the pressure on him.

   ·In Kathmandu he continued to disseminate information about UCPN but started to get threats from the Maoists. They called him once a week. He moved house frequently because of his fear of them.  In August 2012 he left Nepal for India because of his fear. 

   ·In India he stayed in [temporary accommodation] for a few days and he found work as [occupation]. He continued to be afraid the Maoists would find him in India and carry out their threats. He maintained a low profile and did not leave the [accommodation]. Life like this was very difficult so he decided to leave.

   ·He borrowed money from people in his village and paid a broker to get him out of India. He eventually arrived in Australia in April 2013 by boat.

8. The applicant was interviewed [in] July 2013 following his arrival in Australia as an irregular maritime arrival.  A record of this Entry Interview is contained on the Department file. In his reasons for leaving his country he stated that he was a member of the student [union] in 2001 and he was taken away by the [Maoists] who pressured him to join them.  He indicated he was afraid the [Maoists] will harm him if he returns.

9. Also included on the Department file is a copy of an Application for a [temporary] visa made by the applicant [in] October 2012. Enclosed with the application is a letter from [a company] indicating the applicant had paid for a [journey to] Australia; copy of his passport bio-data page; curriculum vitae indicating his employment as [occupation] and [academic qualifications].

10. The applicant was interviewed by a delegate of the Department of Immigration [in] October 2014. The Tribunal has listened to the audio recording of this interview.  The applicant reiterated and elaborated on the claims made in his written statement. Details of the evidence he gave is included in the delegate’s decision statement, a copy of which was provided with the review application.

11. The applicant appeared before the Tribunal on 24 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. A summary of relevant evidence provided at the hearing follows.

12. The applicant is currently living in [a suburb in Australia] with a [friend].  He has been working since he obtained a work [permit]. 

13. The applicant confirmed his address history prior to his arrival in Australia as stated in his application.  He was in [City 1], India for about 3 months, living and working at a [business].  Before that he was in Kathmandu.  He moved to Kathmandu from his village in [District 1] where he was after returning from India.  The applicant confirmed that he went to India previously for 4 years.  He left his village for [Town 1] in [District 1] in the summer of 2057 in the Nepali calendar.  Before that he lived continuously in the village of his birth [Village 1].  The applicant confirmed that apart from his job at the [business] in India in the period prior to coming to Australia he has not held any other formal employment.  He worked on his family farm and helped in the house, and was involved in activities in support of his political party. 

14. The applicant is married, and has one daughter.  They live in [Village 1], as does his parents.  He has one [brother] in Kathmandu.  He has been there for some 7-8 years.  [Details of brother removed]. The applicant’s father financially supports his [brother]. His father works at [a business].  He also has [various properties] in addition to the house the family live in.   The applicant told the Tribunal his father was also supporting him financially in Nepal and he took out a loan to pay for the applicant’s trip to Australia, which cost [amount]. The applicant did not complete any further education after [a particular year] at school. 

15. The Tribunal asked the applicant if he has ever had a Nepali passport.  He said he did have one but he gave it to an agent who promised to get him a visa to depart Nepal.  The agent never got him the visa and never returned the passport. He did not see the agent again after that.  The Tribunal asked the applicant if he ever applied for an Australian visa.  He said he does not know about this, he only knows he gave his passport to an agent who promised to get him a visa.  He did not use this passport to travel to India because he did not need a passport to go there.  He was able to enter India just on his Nepali ID card. 

16. The Tribunal asked the applicant why he came to Australia. He said he found it difficult to live in Nepal, and for this reason he tried to go anywhere outside of Nepal.  When asked why it was hard in Nepal, he said the Maoists made his life very hard and that is why he left. 

17. The Tribunal noted that he left Nepal for India and asked why he came to Australia from India, given that he was outside Nepal.  He acknowledged that he was able to go there and find work, but it was just a small job, which barely allowed him to survive.  India was the route from which he came to Australia, travelling also through [various countries].  He did not intend to come to Australia that is where they sent him to get out of Nepal.  

18. The Tribunal asked the applicant why he was not safe from the Maoists in India.  He said he was worried that they would have messengers and agents there and they would find him. It asked if anything happened to him in India during either of the periods he was there. He confirmed that nothing did. 

19. The Tribunal asked the applicant when his problems in Nepal started.  He said when he was at school he was involved in an organisation called ANRASWOBIU which is the sister organisation of the Unified Communist Party of Nepal (Marxist-Leninist) and the student wing.  The Tribunal asked if this organisation had any other name. He indicated it was the student union.  The Tribunal noted that in his statement he referred to the Akhil Nepal Vidyarthi group – which he indicated was the same.  The applicant then explained that Akhil Nepal Vidyarthi means student organisation in Nepali. 

20. He confirmed that he was the only family member involved in this organisation.  His father is a [occupation] and has never had any political affiliation. He does not know if his brother is involved in any political groups.  When asked why he became involved, the applicant said when he was [young] an international religious [organisation] came to his village and stayed with him.  Their house was attacked as a result by the Maoists and ever since then he has not liked the Maoists.

21. The Tribunal asked what the group he was involved did.  He said he was [an official].  He would [disseminate information] about the party.  He moved around with other people from the group and the party.  Because of his activities with this group, the Maoists pressured him a lot and tried to kidnap him.  They succeeded in kidnapping him once.  [A number] came at night and took him from his house.  They took him to [a location] and beat him.  They made him [undertake tasks for them].  Then they took him to a house in a [village].  They kept him there for [a number of] days. He was taken to different houses in this period for meals.  He was kept in a single room, locked.  When asked why they were keeping him, he said they were pressuring him to join them. 

22. The Tribunal asked how he escaped.  He said he managed to run away when they were sleeping one day.  There were [a number of] guards watching over him, but he had to go to the toilet and one day, when they were not paying close attention he managed to escape.  When asked how he could go to the toilet without the guards’ knowledge if the room he was staying in was locked, he said they normally escorted him but after some time he became familiar with the lock system and was able to release himself without their knowledge. 

23. He said when he was released he did not return home, but went to [Town 1], because he was afraid to return home. He did not directly inform his family, but when the villagers saw him at [Town 1], they would have informed his family that he was alive and okay.  The Tribunal put to the applicant its concerns about the plausibility of his claim regarding this incident.  He maintained that it was truthful. 

24. He said he stayed in [Town 1] after this from 2000 until 2004.  He did not return home in this period because it was not safe.  Sometimes his father came to visit him. He stayed in the party [office]. There was another person also staying there with him from another area.  He may have had similar problems to the applicant but they did not share much with each other. 

25. The Tribunal asked the applicant if he had any problems with the Maoists in this period.  He said in 2060 [2004] the Maoists attacked the area he was living in.  The Tribunal asked if he was referring to the attack in [Town 1] on [a date in] 2004 when Maoists attacked [government holdings].[1]  He confirmed this was what he was referring to.  Before this, he had no problems and he felt safe because of the strong army and police presence in this place, but after this attack he did not. He left [Town 1] after this attack and went to India. 

    [1] [Source deleted].

26. The Tribunal put to him that in his statement he referred to receiving phone calls. He said his [relative] had come from India around this time and suggested he return there with him.   Only when again prompted about the reference in his statement to a threatening call he received, the applicant said he had received threats even before, but because of the army presence he was confident they could not get him.  After this incident he felt unsafe and so he left. 

27. The Tribunal asked the applicant why he returned to Nepal in 2008.  He said in India he tried to get into [a particular organisation] in [India], but he was not successful. By this time, the Maoists had come into the mainstream and were in power In Nepal so he thought the situation would be better.  He confirmed that he had no problems with the Maoists or anyone else during the period he was in India as he was staying [in a location with strong military presence].

28. He returned to his home village.  He married and worked on the family farm and around the house.  He also worked with another youth organisation associated with the UML party in this period.  He said it was called the Youth Force.  He would [undertake certain tasks] and generally helped to run their program.  The Tribunal put to him that it sounded from his description of his activities that he was assisting with humanitarian activities of the group.  In response he said he was [an official] of the group and helped with [a particular] program.  For example he [details of program]. He participated in programs run by the group.  The Tribunal put to him that it may not accept he was targeted by the Maoists for his activities of this nature.  He said he was affiliated to their rival group and because of his past history, they were always targeting him.

29. The Tribunal asked the applicant who he worked with in the Youth Force.  He said the president was named [name].  He believes he is in [another country] now.  When asked how he knows this, he said he heard from his family that he left Nepal.  He believes most probably that he did so because of difficulties he had there. He does not have direct knowledge of this.  When asked if anything happened to this person while he was in Nepal he said no.  He assumes if he left Nepal that something must have happened to him.  The Tribunal asked if anything happened to anyone else involved in this group. He said it did not. He said when he left the village and went to Kathmandu he did so because they were after him.  He does not know what happened to anyone else. When asked why he went to Kathmandu in 2011, he said he went to try and start a business or something because of the problems he was having in the village.  The Maoists militia were always threatening him to leave or to join them, it became so dangerous for him to live there. There was no police or security and for this reason he left.  When asked if there was any specific incident which caused him to leave he said he was constantly threatened.  When asked what about his wife and daughter, he said it was not possible to bring them to Australia with him so he left them there. 

30. The Tribunal put to the applicant that he managed to live without incident in his village between 2008 and 2011.  In response he said there were problems but they were small problems.  He referred to being attacked many times, and referred to an incident in which [he sustained injuries].  This is what led him to go to Kathmandu.  When it was put to him that he did not mention this incident in his statement or at interview, he said he tried to mention it before, but at the entry interview he had just come off the boat and he was confused. The Tribunal asked him to elaborate on this incident now. He said he had come out of a party meeting and was on his way home.  [A number of] people unknown to him attacked him on the road.  He later realised [he had sustained injuries]. He left the next day for Kathmandu, and on the way he went to Pokhara and received medical treatment for his injuries.  He had [the injuries treated]. When asked if he has any evidence of this, he said he had paperwork but he misplaced it.  The Tribunal put to the applicant that given he has not mentioned this before, and has no evidence to support it, it may not accept he is telling the truth.  In response the applicant said he suffered mental torture when he was in detention.

1. The Tribunal asked the applicant if he had any problems in the period he was in Kathmandu.  He said at the beginning he did not, but when they found him he started getting threats and changed houses and phone numbers 3-4 times.  It became difficult to live there so he went to India. Even when in India, the Maoists have contacts there and they were eventually able to find him there.  The Tribunal asked the applicant what he was doing in Kathmandu. He said he was not doing anything special.  He took people to the party office when they came to the city.  He did not have any official role in the party.  He was just affiliated with them. 

2. The Tribunal asked the applicant why he did not stay in India if concerned only for his safety.  He said there is no security for Nepalese in India.  When it was put to him that he has not mentioned any incidents in India, he said he was only there for 3-4 months and hardly moved around. If he stayed in India, and he wasn’t in [a secure location] as before, he would not have been safe. 

3. The Tribunal discussed with the applicant independent information before it regarding the political and security situation in Nepal concerning Maoists at the present time.  It put to him that this information indicates an improved security situation in Nepal, specifically that there have been no insurgency related deaths since 2013, and the political violence that is reported is not so much related to activities involving the Maoists, or forced recruitment.   It invited the applicant’s comment or response to this information. In response the applicant asked the Tribunal if it could be responsible that nothing would happen to him if he returns. He pointed out that there are different factions amongst the Maoists and though some may be in power or in Government, there are others who are outside of it and they use the same tactics of old. He may still be at risk of threats from them even now.  The Tribunal asked the applicant why he believes they would be interested in him now. He said he fears they will threaten him to join them.  The Tribunal put to him that there is no information before it that the Maoists are involved in forced recruitment these days. He said the new factions may go back to these tactics again.

4. The Tribunal put to the applicant that another issue that may arise in his case is s36(3) of the Act. It explained that if he has a right to enter and reside in India, he may not be owed protection obligations by Australia on that basis. In response the applicant said that there are many things going on for Nepalis in India and there is no guarantee he will be safe there. When asked what he fears in India, he said that if he was secure there he would never have spent so much money or taken such a risk of his life to come to Australia by boat. When asked what he fears in India, he said he is afraid someone may kill him. When asked who, he said he cannot be secure in India. He mentioned there are many organisations and political parties there and there are many risks and threats to safety in India, but he did not refer to anything specific.

5. The applicant confirmed that he has not made any enquires about going to India. He agreed that as a Nepali he does not need a passport or visa to enter India from Nepal. 

   Independent Information

   Need for Nepalese passport to enter India

6. Information from the Ministry of Home Affairs, Government of India indicates that a citizen of Nepal must be in possession of a passport when entering India from a place other than Nepal. [2]

   [2] Ministry of Home Affairs, Government of India: Bureau of Immigration 2013, Nepalese Passengers, 3 July < Accessed 4 May 2015 <CIS36DE0BB1937>

7. The Embassy of Nepal located in Canberra may issue an Emergency Travel Document (ETD) that is valid for one-way travel to Nepal and is surrendered upon arrival:

   Nepali national who has lost his/her passport and is in urgent need to go to Nepal may apply for one-way travel document.[3]

   Youth Force

   [3] Embassy of Nepal, Canberra n.d., Services: Passport A.3 Travel Document < Accessed 4 May 2015 <CISEC96CF1721>

8. The Youth Force (YF) is the youth wing of the Communist Party of Nepal (Unified Marxist-Leninist) (CPN-UML).[4] In 2009, the YF formally changed its name to the Democratic National Youth Federation or simply Youth Federation Nepal (YFN).[5] Another source refers to the group as the Youth Association Nepal (YAN).[6]

   [4] Youth force claims to have 600,000 members and their regional expansion is also at an increasing trend. See  Upreti, B R et al (eds) 2010, The Remake of a State: Post-conflict Challenges and State Building in Nepal, South Asia Regional Coordination Office of the Swiss National Centre of Competence in Research (NCCR North-South) and Human and Natural Resources Studies Centre, Kathmandu University p.199 <Attachment>

   [5] The Carter Center 2011, Clashes Between Political Party Youth Wings Have Decreased But YCL And UML Youth Force Continue To Seek Financial Gain, 28 February, p.2 < Accessed 17 March 2011 <Attachment>; ‘YFN election concludes in Lahan’ 2009, ekantipur.com, 29 December < Accessed 12 March 2013 <Attachment>

   [6] ‘Youths close to CPN-Maoist shoot at YAN cadre’ 2013, Republica, 5 March < Accessed 13 March 2013 <Attachment>

9. Independent information indicates that CPN-UML and Youth Force cadres clashed with UCPN-M and YCL cadres following the signing of the Comprehensive Peace Agreement. Analysis of Nepal’s youth groups argue that while the YCL was the largest and most effective of youth groups, many groups, including the Youth Force, were guilty of instigating violence, “obtain[ing] financial gain”, and perpetrating other acts.[7]

   [7] The Carter Center 2011, Clashes Between Political Party Youth Wings Have Decreased But YCL And UML Youth Force Continue To Seek Financial Gain, 28 February, p.1 < Accessed 17 March 2011 <Attachment>

10. A 2009 paper for the Institute of Peace and Conflict Studies, New Delhi, states the following:

    Rival youth wings now include the Unified Marxist-Leninist’s (UML) Youth Force (YF) and the MJF’s Youth Forum. Although they are not as sophisticated as the YCL, these wings have nevertheless adopted an organisational structure similar to that of the YCL. Moreover, all youth wings illegally target and recruit children from schools…Frequent clashes occur between the YCL, YF and MJF-Youth Forum…although the YCL have instigated or been involved in many of these incidents, they are not the sole perpetrators of violence as the YF and MJF’s Youth Forum are equally to blame for violent clashes that actively target YCL members.[8]

    Current security situation in Nepal

    [8] Housden, O 2009, Nepal – A Failing State or a State in Transition?, Institute of Peace and Conflict Studies, New Delhi, February, p.11 <Attachment>

11. A Monitoring Report into the 2013 Constituent Assembly Election provided the following incidents of violence in [District 1]:  [details of political violence in District 1]. [9]

    [9] [Source deleted].

12. The result of the 2013 Constituent Assembly elections in [District 1] area indicates that the successful candidate was [an individual] from the Communist Party of Nepal (Marxist Leninist) Party.[10]

    [10] [Source deleted].

13. The most recent DFAT Country Report on Nepal[11] indicates that the overall security situation has dramatically improved since the end of the civil war conflict in 2006, and elections for the second Constituent Assembly were held in November 2013, although it is recognised that poverty, unemployment, weak rule of law and a culture of impunity continue to be causes of insecurity in Nepal. The report states that political party interference in security processes and criminal investigations undermines effective security and justice and political protests and demonstrations occur regularly and can turn violent without warning.   DFAT states that there are credible allegations that groups associated with political parties have committed acts of violence, extortion, and intimidation and refers to violent protests and strikes over the constitution occurred in the far west, mid-west and east in August 2015 and protests in the Terai between Madhesi and Tharu groups has been ongoing since September 2015 up to early 2016.

    [11] DFAT Country Report on Nepal, 21 April 2016, p 8

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

    The environment of peace that had been established in Nepal in 2013 survived, despite challenges, through 2014, with not a single insurgency-related fatality on record. … [I]t was in 2013 that the Himalayan Nation did not record a single insurgency-related fatality during the course of a year, for the first time, and remained completely free of insurgency-related violence.

    The successful holding of elections for the second Constituent Assembly (CA) on November 19, 2013, have, in some measure, transformed the political environment of the country and diminished violent inter-party clashes. As against 22 such clashes resulting in four deaths and 167 injuries in 2013, no such clashes were reported through 2014.[12]

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

15. The SATP Nepal Assessment 2016 provides the following information about the current cycle of political violence:

    Nepal, which had seen 4,896 fatalities, including 3,992 Maoists, 666 Security Force (SF) personnel and 238 civilians, in a single year at the peak of insurgency in 2002, sustained the environment of peace that had been established in 2013, through 2014 and 2015, with not a single insurgency-related fatality on record. However, though the insurgency has subsided, Nepal continued to witness significant political violence through 2015.

    The current cycle of political violence began on July 1, 2015, when agitating cadres of the United Democratic Madhesi Front (UDMF) comprising of the Upendra Yadav-led Federal Socialist Forum-Nepal (FSF-N), the Mahantha Thakur-led Tarai Madhes Democratic Party (TMDP), the Rajendra Mahato-led Sadbhawana Party (SP) and the Mahendra Raya Yadav-led Tarai Madhes Sadbhawana Party (TMSP), burnt copies of the preliminary draft of the Constitution in the capital, Kathmandu, as it failed to incorporate their demands. During the first round of violence, between July 1 to September 19, 2015, according to partial data compiled by the South Asia Terrorism Portal (SATP), at least 44 persons, including 25 civilians and 19 SF personnel, were killed and another 229, including 166 civilians and 63 SF personnel, were injured in violent protests across the Tarai region. In Surhket District, adjoining the Tarai region, another two civilians were killed and 50 were injured.

    Violence continued subsequent to the adoption of the New Constitution on September 20, 2015, with nine civilians killed and another 414 persons, including 321 civilians and 93 SF personnel, injured in violent protests across the Tarai region, according to SATP data. In adjoining Districts, one civilian was killed in Udayapur and another was injured in Dhading District (all data till December 31, 2015).

    Warning that the current Tarai turmoil would create a ‘parallel’ economy in the country, Federation of Nepalese Chambers of Commerce and Industry (FNCCI) President Pashupati Murarka during a Press meet on December 18, 2015, observed,

    Tarai protest led by some political parties for the last few months has pushed the economic, social and education, among other sectors, to a serious mode. Nearly 2,000 industries are closed while materials worth billions of rupees have been stranded on the other side of the border. The demurrage charge on these materials is beyond our affordability.

    …
    
    Worryingly, signs of continued violence are very much in evidence. On January 2, 2016, SP Chairman Rajendra Mahato emphasized, “Fifty-five people were martyred during Madhes agitation and hundreds of people were injured. Hundreds of people are still in hospitals. As the Government stepped up its repression, we have also stepped up our resolve to fight for our rights.” Earlier, the Tharuhat Struggle Committee (TSC), in a Press Release on December 24, 2015, had threatened that if its demands were not met by January 14, 2016, it would promulgate its own Constitution on January 15, 2016, guaranteeing an autonomous Tharuhat province.

    Separately, on December 11, 2015, the Federal Inclusive Madhesi Alliance (FIMA), which brings together the Sharat Singh Bhandari-led National Madhes Socialist Party (NMSP), the Rajkishor Yadav-led Madhesi Janadhikar Forum-Republican (MJF-R), the Anil Kumar Jha-led Nepal Sadbhawana Party (NSP) and the Jay Prakash Prasad Gupta-led Tarai Madhes National Campaign (TMNC), submitted a nine-point demand to the Government. Warning that they would intensify their agitation, FIMA leaders argued, on December 20, 2015, that the ruling parties were not serious about seeking a negotiated settlement of issues raised by Madhes-based parties.
    Disturbingly, the Netra Bikram Chand-led Communist Party of Nepal-Maoists (CPN-Maoists), at a proclamation assembly organized in Butwal city of Rupandehi District on January 3, 2016, declared the Rupandehi, Nawalparasi and Kapilvastu Districts as the Abadh autonomous State. Warning that if they were suppressed they would retaliate against the Government, Politburo Member Santosh Budhamagar asserted, “Our party was forced to revive the old structures as the Government was unable to solve the people’s basic problems after India’s blockade of Nepal’s border points.”
    

    [13] on June 30, 2015, Nepal’s second Constituent Assembly (CA) constituted on January 21, 2014, accepted the preliminary draft of the Constitution. Though it faced strong opposition, the CA went ahead, and in a historical step forward, endorsed “Nepal’s Constitution” with an overwhelming two-thirds majority on September 16, 2015. The new Constitution with 308 articles, 35 parts and nine schedules, came into effect after President Ram Baran Yadav announced its commencement at 17:00 hrs on September 20, 2015, during the last meeting of the CA. The first CA, constituted on May 28, 2008, with a mandate to deliver the Constitution by May 28, 2010, was dissolved on May 27, 2012, after four extensions. While the adoption of the new Constitution was welcomed by most national and international groups and leaders, a large segment of the population, particularly the Madhesis and Tharus residing in the Tarai region, contested the new Constitution.[13]

    FINDINGS AND REASONS

16. A summary of the relevant law is set out at Attachment 1. 

    Nationality

17. The applicant has not presented a Nepalese passport.  He told the delegate at the interview that he never had a passport, however he told the Tribunal that he had a passport which he gave to an agent for the purposes of obtaining a visa to depart Nepal and it was never returned to him.  To both the delegate and the Tribunal he denied knowledge of making an application for a [temporary] visa for Australia.

18. The Tribunal has considered documents relating to a [temporary] visa application purportedly made by the applicant, held on the Department file [file number] at folios 86-98, which includes a signed application form (folio 87) and a copy of a passport in his name (folio 93), which indicates an expiry date [in] 2015.  It notes that the signature on the application does not resemble his signature on various documents provided in his Protection visa application and this supports his claim not to have knowledge of the visa application that was made.  It observes that the passport contains details as to his name, address and date of birth that correspond to details provided in his Protection application, and this is consistent with his claim to have given his passport to an agent for the purposes of obtaining a visa to depart Nepal. 

19. The applicant’s oral evidence to the department and Tribunal is consistent with his claim to be born in and a citizen of Nepal.  On the basis of all of this evidence, taken cumulatively, the Tribunal accepts that the applicant does not currently have in his possession a valid or current passport.  Notwithstanding this, it accepts on the basis of the copy of a now expired passport in his name, which was sighted by an officer, and his oral evidence and claims, that the applicant is a citizen of Nepal and assesses his claims against Nepal as his country of nationality and as the receiving country.

    Does the applicant have a right to enter and reside in a third country

20. As a preliminary matter the Tribunal has considered whether the applicant has a presently existing right to enter and reside in India under the Treaty of Peace and Friendship between India and Nepal.

21. The Tribunal has accepted above that the applicant does not presently hold a valid and current Nepalese passport. Independent information at paragraphs 36 and 37 above indicates that Nepalese citizens must be in possession of a passport when entering India from a place other than Nepal and also that an Emergency Travel Document (ETD) issued by the Embassy of Nepal to a national who has lost their passport would only be valid for one-way travel to Nepal and is surrendered upon arrival. Therefore, as the applicant does not have a valid Nepalese passport that would permit him to enter India from Australia, the Tribunal finds that he does not have a presently existing right to enter and reside in India, and s36(3) does not apply in this case.

22. The Tribunal will now consider the remaining issues, namely whether he has a well-founded fear of persecution in Nepal under the refugee criteria or a real risk that he will suffer significant harm under the complementary protection criteria.

    Consideration of applicant’s claims

23. The applicant fears harm In Nepal from Maoists on the basis of his real and imputed political opinion because of his involvement with political groups in opposition to the Maoists. He claims he was kidnapped, beaten and forced to work for the Maoists in [2000]. He claims that the Maoists attacked the area where he was living in [in] 2004 and he had to flee for his safety. He claims he went to India at this time because he felt unsafe in Nepal. He claims that after he returned from India to Nepal in 2008 to his home village, he worked with a youth party associated with the CPN (UML) called the Youth Force and he was targeted and threatened by the Maoists because of his work with this group. He claims he fled to Kathmandu to try and start a business because he could not continue to stay in his village of these threats. He was constantly threatened in Kathmandu and he left for India and from there he came to Australia.

24. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.  The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

1. For the reasons given below the Tribunal does not accept that the applicant has a real chance or real risk of serious or significant harm on the basis of his real or imputed political opinion, or for any reason, in future.  The Tribunal has a number of concerns with the applicant’s claims relating to his past circumstances that lead it to reject his claims on the basis of a lack of credibility. 

   Claims of involvement in student organisation and of being kidnapped, beaten and forced to work for the Maoists in 2000 and threats received following this incident

2. The applicant has claimed that he was involved with organisations associated with the Unified Communist Party of Nepal (Marxist Leninist) since his school days. He gave the name of the specific group he was involved with as Akhil Nepal Vidyarthi, and that it was associated with the Unified Communist Party of Nepal (Marxist Leninist). The Tribunal accepts that the reference to this group as the Unified Communist Party of Nepal (UCPN) in his Statutory Declaration was an error on the part of his representative at that time, and that he has consistently claimed his affiliation is with the Communist Party of Nepal (Unified Marxist Leninist). He told the Tribunal he was [an official] at the school level, though in his written statement he described his position as [a lower position]. He has only claimed to have become involved in the organisation in [2000]. The Tribunal also found his description of his activities with this group vague and lacking in convincing detail. He described his role as [disseminating information] about the party. The Tribunal did not find his evidence consistent with his claimed role in the organisation, or consistent with the period of his involvement and for these reasons it does not accept his claim to have been involved as claimed in a student organisation associated with the CPN (UML) in 2000.

3. In relation to his claims that he was abducted, beaten and forced to work by Maoists in 2000, the Tribunal has some concerns about the credibility and plausibility of his account of this incident and the circumstances of his escape. His evidence differed between his written claims where he referred to ‘the security guard’ watching over him, to referring in his oral evidence to [a number of] security guards from whom he escaped. He referred to the room he was kept in being locked, but when asked how he was able to escape from a locked room while the guards were sleeping, he said became familiar with the lock system and was able to release himself without their knowledge. The Tribunal has concerns that he was making up his story to respond to the questions put to him.  The Tribunal also has difficulties accepting that after being held for [a number of] days and then escaping, he would go to live at [Town 1] and not return at any time to inform his family of his whereabouts.  It has doubts about his evidence that he stayed in [Town 1] without further incident for another 4 years, and did not return home at all and that there was another person from another area living with him throughout this period but he did not talk with him and did not know his experiences. The Tribunal finds these aspects of the applicant’s claims lack credibility. He was unable to provide any convincing response when the Tribunal put its concerns to him at hearing. 

4. Despite these concerns about the inconsistencies and implausible elements of his account of this incident, the Tribunal has considered independent information which indicates that kidnapping was a common practice during the Maoist insurgency and that the common victims of kidnapping for use in the war were children. According to a 2007 Human Rights Watch (HRW) report, Maoists forcibly recruited large numbers of children across Nepal, primarily by abducting them from schools. The report also states that the Maoists had a “one family, one child” policy in areas under their control, forcing every family to provide a recruit or face severe consequences.[14] Sources indicate that abduction of students (and often their teachers) was common in [District 1].[15] [16] [17]  Having regard to this information, the Tribunal is prepared to give the applicant the benefit of its doubts about this incident and accept that it is possible that he was kidnapped by Maoists in 2000.  However, on his own evidence, he lived for another 4 years in an area close to his home village without further incident. He claimed that he felt safe in this area because there was a strong police and army presence there. The applicant claims he left the area after a major attack in 2004 in which the Maoists attacked [government holdings].  The applicant confirmed to the Tribunal that he was referring to the attack in [Town 1] on [a particular day in] 2004, and on the basis of independent information[18] the Tribunal accepts that this attack occurred as claimed and that the applicant left this place following it.

   [14] Human Rights Watch 2007, Children in the Ranks: The Maoists’ use of Child Soldiers in Nepal, February, vol.19, no.2, pp.5 & 18 – Accessed 13 September 2007 – Attachment 29

   [15] [Source Deleted].

   [16] [Source deleted].

   [17] [Source deleted].

   [18] [Source deleted].

5. The applicant claimed in his written statement that he received a call [a number of] days after the [Town 1] attack threatening to kill him because of his refusal to join the party. However he did not mention this call in his oral testimony to the Tribunal. When the Tribunal referred him to it, he said that he had received threats even before this. Given his failure to mention the incident of the threatening call in his oral testimony and the vague and general nature of the claim subsequently made, the Tribunal does not accept that the applicant received threats from the Maoists in the period before or after the [Town 1] attack in [2004].

   Claims of fleeing to India in 2004

6. The Tribunal accepts that the applicant left Nepal for India in 2004 and stayed there until 2008.   It accepts his claim that he unsuccessfully tried to join [an organization in India].  It also accepts his evidence that he returned to Nepal believing things may be better given that the Maoists had come into the mainstream and were in power.[19]

   Claims to have become involved with Youth Force upon return to Nepal in 2008

   [19] This is consistent with information from the Election Commission, Nepal website indicating that the CPM Maoists won the seat of [District 1] in the  2008 CA election:

7. The applicant claims to have joined another youth organisation associated with the UML called Youth Force after he returned to his home village. He claimed he became [an official] of the Youth Force in his village.  He described his role as [undertaking particular tasks] and generally helping to run their programs.  When suggested by the Tribunal that his activities appeared to be humanitarian in nature, he added that he helped with [a particular] program and gave as an example that he helped to establish [a particular program].  On the basis of his oral evidence the Tribunal accepts that he was involved in community activities in his local area of a humanitarian nature.  

8. However, having considered independent information about Youth Force and their activities (see paragraphs 38-40 above) the Tribunal is not convinced, on the evidence he gave of the activities he was involved in, that he was involved with the Youth Force or in activities which would have brought him to the adverse attention of rival youth groups or the UCPN.  The Tribunal does not accept that the applicant was targeted by Maoist groups upon his return to Nepal from 2008.  Although he claims to have been threatened by Maoists he did not provide details of any specific incidents or harm. Nor was he aware of problems anyone else in the organisation he was working with had. 

9. When asked why he went to Kathmandu in 2011, the applicant told the Tribunal he wanted to try and start a business or something.  He did not indicate any other reason or specific incident that triggered his departure at this time.  He left his wife and daughter at home, which suggests that he was not afraid for their safety when he left.  The Tribunal does not accept that the applicant left his home village for Kathmandu because of problems or threats from Maoists, rather than for economic reasons.  The Tribunal does not accept, on the evidence before it that the Maoists were threatening him or pressuring him to join their party in this period or at any time. It finds that he lived without incident in his home village from 2008 to 2011.  The Tribunal does not accept that he suffered any problems from Maoists.  It does not accept that [he suffered injuries] in an incident in this period.  He referred to this incident for the first time before the Tribunal after it put to him that he was able to live without incident between 2008 and 2011. In his account to the Tribunal he mentioned receiving medical treatment and having evidence of this but he misplaced it.  He did not mention this incident in his written statement or oral evidence to the Department.

10. The applicant claimed that he received threats by phone and had to change house in Kathmandu and because of these threats he left for India.  His evidence about his activities in Kathmandu was inconsistent between his written statement and oral evidence to the Tribunal.  He said in his written statement that he continued to disseminate information about the Party.  However in his oral evidence he said he was not doing anything special there, and he only took people to the party office when they came to the city but he did not have any official role in the party.  The Tribunal does not accept that the applicant would have been continuously threatened and pursued by Maoists given the minimal political role and activity in this period.  The Tribunal does not accept that the applicant had a political profile or role that would attract the adverse attention of any rival political party.

    Well founded fear of future harm

11. Having regard to the findings made above about the applicant’s past experiences, background and profile, the Tribunal has considered the general security situation in Nepal.  According to the most recent DFAT Country Report on Nepal[20] the overall security situation has dramatically improved since the end of the civil war conflict in 2006, and elections for the second Constituent Assembly were held in November 2013, although it is recognised that poverty, unemployment, weak rule of law and a culture of impunity continue to be causes of insecurity in Nepal. The report states that political party interference in security processes and criminal investigations undermines effective security and justice and political protests and demonstrations occur regularly and can turn violent without warning.   DFAT states that there are credible allegations that groups associated with political parties have committed acts of violence, extortion, and intimidation and refers to violent protests and strikes over the constitution occurred in the far west, mid-west and east in August 2015 and protests in the Terai between Madhesi and Tharu groups has been ongoing since September 2015 up to early 2016.   This violence is also referred to in the SATP Assessments for 2015 and 2016, as set out above. 

    [20] DFAT Country Report on Nepal, 21 April 2016, p 8

12. The Tribunal has considered the applicant’s response when the above country information was put to him for comment.  He referred to the fact that there are many different factions amongst the Maoists of which only some are in power or in Government.  He claimed that there are other factions who are outside of the system and they will continue to use the tactics of old days.  He fears he is at risk of harm from them even now.  When asked why he fears harm from these groups now the applicant said they will want to recruit him to join them. The Tribunal has considered the applicant’s claims and arguments but it is not satisfied on the evidence before it, that there is a real risk the applicant will face serious harm in the form of forced recruitment into a Maoist faction in the reasonably foreseeable future.  

13. Having considered the applicant’s claims individually and on a cumulative basis, and the findings made above about the applicant’s past experiences, background and profile and the material before it including the independent information above, the Tribunal is not satisfied that there is a real chance the applicant will face persecution, for reasons of his real or imputed political opinion, or past affiliation as a supporter of the CPN(UML) or for any other Convention based reason.  Therefore the Tribunal is not satisfied that the applicant has a well-founded fear of persecution now or in the reasonably foreseeable future.

14. 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).

    Complementary Protection criteria

15. 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 has considered whether 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 as defined in s36(2A) of the Act.

16. Having regard to the findings made above regarding the applicant’s circumstances and past experiences in Nepal and his background and political profile, the Tribunal is not satisfied that there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to Nepal.

17. The Tribunal has also considered independent information referred to above about the security situation generally in Nepal. On the basis of information provided in the DFAT report, the Tribunal accepts that the security situation in Nepal has improved significantly, and there were free and fair elections in November 2013, however it also accepts that there is a degree of insecurity in the country as a result of political protests, poverty, unemployment and a culture of impunity. However, having regard to the findings made above about the applicant’s past experiences and profile, in respect of a claim of fear of harm from generalised violence that may arise on the material, the Tribunal considers that to the extent that the applicant faces a real risk of significant harm as a civilian victim of generalised violence, it is one faced by the population of the country generally and not faced by him personally and on that basis there is taken not to be a real risk of significant harm in respect of him under s36(2B) of the Act.

18. For the above reasons the Tribunal is not satisfied, having considered his claims individually and cumulatively, there are substantial reasons for believing there is a real risk the applicant will suffer significant harm if removed from Australia to Nepal.

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

20. 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

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

    Meena Sripathy
    Member

    
    

    RELEVANT LAW

22. 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

23. 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).

24. 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.

25. 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.

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

27. 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.

28. 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.

29. 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.

30. 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.

1. 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.

2. 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

3. 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’).

4. ‘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.

5. 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

6. 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.

   
   

[Source deleted].