1421093 (Refugee)

[2015] AATA 3902

1421093 (Refugee) [2015] AATA 3902 (10 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1421093

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Fraser Syme

DATE:10 December 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 10 December 2015 at 3:49pm

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 is a [age] man from Nepal. According to the applicant, he was abducted by Maoists in 1998. He managed to escape but was accused by Maoists of stealing their money. He then went to India and lived there until his return to Nepal in 2006. The Maoists continue to threaten him to repay the money they accuse him of stealing. He did not do that and cannot afford to pay the claimed amount. He then came to Australia in 2014. He fears if he returns to Nepal the Maoists will harm him because they still accuse him of stealing their money.

2. This review application raises the following issues for the Tribunal to determine:

   a.Does the applicant have a well-founded fear of persecution in the reasonably foreseeable future if he returns to Nepal.

   b.Are there substantial grounds for believing there is a real risk the applicant will suffer significant harm if he is removed to Nepal.

   HISTORY OF THE APPLICATION FOR REVIEW

3. The applicant entered Australia on a visitor visa in July 2014 claiming to be the head of an NGO to attend an international conference in [Australia]. He applied to the Department of Immigration for a protection visa in August 2014. The delegate conducted an interview with the applicant in November 2014. The Tribunal has listened to a recording of that interview. The applicant provided to the delegate his Nepali passport, relationship certificate, citizenship certificate and his visitor visa grant letter.

4. In the decision under review dated [in] November 2014, the delegate found the applicant had not taken all reasonable steps to avail himself of the right to enter and reside in India under the Treaty of Peace and Friendship between India and Nepal and therefore was not owed protection obligations under s36(3). The applicant included the delegate’s decision record with the review application.

5. The applicant appeared before the Tribunal on 17 November 2015 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

6. The applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing and provided no submissions.

   RELEVANT LAW

7. 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.

8. 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).

9. 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.

10. 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’).

11. 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. DFAT have not published any country assessment for Nepal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

13. In making its findings, the Tribunal is mindful the applicant was [age] at the time of the hearing. The Tribunal is mindful too that whenever evidence is received in a language other than the applicant’s first language or through an interpreter there is always room for differences in meaning and nuance. The Tribunal is satisfied the standard of interpreting at the hearings was reasonable. The Tribunal considers the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way.

14. The Tribunal finds the applicant is a national of Nepal. He provided a copy of his Nepalese passport. He made no claim to be a national of any other country. For the purpose of the decision, it has been unnecessary for the Tribunal to consider whether the applicant has a right to enter and reside in India under the Treaty of Peace and Friendship between India and Nepal, or in any other country for the purpose of s.36(3). The Tribunal accepts the applicant’s claims should be assessed against Nepal for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered the applicant’s home town, the place he resided prior to departing Nepal and where he said his family reside, to be his home region in Nepal.

15. The Tribunal accepts that ‘applicants for refugee status face particular problems of proof as an applicant may not be able to support his or her statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.’  The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status). The Handbook further states:

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

16. The Tribunal acknowledges, while it may have regard to the Handbook, the Handbook is not binding. The Tribunal must bear in mind 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 (1999) 93 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 Randhawa v MILGEA (1994) 52 FCR 437.

17. During the hearing, the Tribunal put to the applicant that his credibility was an issue, however for the reasons set out below, the Tribunal finds the applicant provided generally credible evidence in relation to most of his claims, whereas in relation to some of his other claims the Tribunal has found his evidence was exaggerated.

    Well-founded fear of persecution

18. The Tribunal put to applicant that country information as set out in the delegate’s decision supported that during the time he claims to have been abducted by the Maoists, such incidents did occur. It noted too that his evidence regarding his being abducted was generally consistent and that he had given quite detailed evidence about what happened while he was in the camp. The Tribunal may be willing to give him the benefit of doubt to accept these things occurred.

19. While the Tribunal is mindful he is not obliged to do so, it notes the applicant has not identified a Convention ground for his claims. The Tribunal has assessed the applicant’s claims on the basis of an imputed anti-Maoist political opinion.

20. At the hearing, the Tribunal adopting the procedure in s.424AA discussed with the applicant inconsistencies in the applicant’s evidence during his interview with the delegate, during the hearing and in the written statement he provided with his visa application. The Tribunal explained the information to him, why it was relevant and that his providing inconsistent information called into question the credibility of his claims. Were the Tribunal to find his claims were not credible, that would be part of the reason to affirm the decision. The applicant elected to respond at the hearing, as follows:

21. The number of people who accompanied him when he left the Maoist camp: In his written statement, the applicant stated he left the Maoist camp with one other (unspecified person) and an old Maoist, totalling three people. During his interview with the delegate, the applicant said he left the camp only with an old Maoist. He did not refer to a third person. When the Tribunal put that inconsistency to him at the hearing the applicant first commented that he said there were three people, but it was wrongly written as two. The Tribunal reminded him his written statement said there were two other people with him, but he said to the visa officer during his interview there was only one other person with him. He then said that he always claimed there were three people. Himself, a younger worker and the older Maoist. He then clarified that he too regarded himself as a younger worker. He declined to make any further comment.

22. The Tribunal considers the applicant providing inconsistent evidence as to how many people he left the camp weighs in favour of finding the applicant did not provide credible evidence.

23. Whether he knew that he was going to collect money for the Maoists when he left the Maoist camp: in his written statement, the applicant stated he was told before leaving the Maoist camp that he was going to get money. During his interview with the visa officer, the applicant said he did not know where he was going when he left the Maoist camp. It was only after he had escaped that he learned the Maoists had accused him of stealing money. The applicant first commented that he did not write in his statement that he knew he was leaving the camp to collect money. The Tribunal read the relevant part of his statement to him. The Tribunal noted the applicant had signed the statement. Earlier in the hearing, the applicant had confirmed to the Tribunal all of the information in his application forms and his written statement was correct. He said that he wrote his claims in Nepali and a friend translated his claims to English, that friend was now in Nepal. He denied he had provided any inconsistent evidence.

24. The applicant later commented that he found out the Maoists accused him of stealing money after he left Nepal and was in India. He said that he was only in Nepal for two days after he escaped, so there was no chance for him to find out the Maoists accused him of stealing money. He later explained he went to India because he feared for his safety from the Maoists. He clarified it was about 2 months after he arrived in India, when he first telephoned his family, did he learn about the stealing accusations.

25. The Tribunal then put to the applicant his evidence at the hearing regarding when he first learned of the stealing accusations was inconsistent with his written statement, wherein he stated some villagers from his home village told him the Maoists were looking for him, so he went to hide at his [relative’s] home. While he was there for two days, the Maoists went to the applicant’s home and threatened his wife and mother and accused the applicant of stealing the Maoist’s money. He then decided to go to India. The applicant declined to make any comment.

26. The Tribunal considers the applicant has provided inconsistent evidence about his knowledge of going to collect money when he left the Maoist camp and that inconsistency is material to his claims. Whether he knew he was going to collect money at the time he claims to have escaped is central to whether on escaping he went to his home village (his written statement), his [relative’s] home (his interview) or to India (at the hearing, after a short visit to his [relative’s] home). His evidence as to how he learned about the stealing accusations too is inconsistent. He was told by villagers (his written statement – which could not have happened if he was going to his [relative’s] home) or by his family after he had been in India for 2 months (which would mean the theft accusation was not the motivation for his going to India). The Tribunal considers these inconsistencies greatly undermine the credibility of the applicant’s claims and weigh in favour of finding he has fabricated his claims.

27. As well as those inconsistencies, the Tribunal discussed with the applicant that after he returned to Nepal from India in 2006, he continued to reside in Nepal for another 8 years, but the Maoists did not harm him. He said they would threaten him and demand he repay the money. He said since he left Nepal, the Maoists had not harmed his family. If Maoists happened across his parents in the street, the Maoists would ask where the applicant was. His parents always replied they do not know the applicant’s whereabouts and that it is possible the applicant is in India. The Tribunal noted that words alone may not be serious or significant harm. The applicant commented that he suffered a lot of nervous distress, because anything could happen at any time. The Tribunal noted that would appear to be a speculative or remote chance of harm, not a real chance. The applicant declined to comment further.

    Visitor visa application

28. The Tribunal discussed with the applicant too his visitor visa application to come to Australia. He confirmed he was not the leader of an NGO. The Tribunal noted it appeared he had provided false documents to support his visitor visa application. He replied that everything was done by the agent, he just gave the agent his passport and citizenship certificate. The Tribunal commented his providing false documents so as to obtain a visa could be a reason for the Tribunal to have doubts about his credibility. He replied it was all done by the agent.

29. The Tribunal put to the applicant although it may accept that he was abducted by Maoists, his evidence regarding how he escaped the camp and his being accused of stealing the money from the Maoists was inconsistent and caused the Tribunal to have some doubts about the credibility of his claims. It put to him too that he was able to reside in Nepal for 8 years, unharmed further undermined that he would be of any interest to the Maoists if he returned to Nepal. The applicant commented that he would definitely be targeted but declined to make any further comment. Later he said that the inconsistencies between what he said at his interview and during the hearing made his mind not work clearly. When asked to clarify did that mean what he said during the interview was correct and at the hearing was incorrect, he said that is not what he meant. All of the evidence he gave was true. He declined to make further comment.

30. The Tribunal is mindful of the applicant’s claims he was stressed at different times of his providing evidence to the delegate and the Tribunal, however the Tribunal does not accept that explains the material inconsistencies in his claims. The applicant only claimed interpreting errors with his statement after the inconsistencies in his evidence were put to him, albeit he had earlier stated all of the information in his statement was correct. The Tribunal is therefore not persuaded the inconsistencies in his evidence are a product of any interpreting error. The Tribunal considers the numerous and material inconsistencies in his evidence sufficiently undermine his credibility that the Tribunal is satisfied the applicant was not a credible witness.

31. The Tribunal accepts that the applicant was abducted by Maoists and it accepts he lived in India between 1998 and 2006. But the Tribunal rejects he escaped in the way he has claimed. It rejects that he was accused of stealing money and it rejects the Maoists came looking for him at his home village, his [relative’s] home or anywhere when he escaped. It follows that the Tribunal rejects too that the Maoists have threatened his wife or his parents. It rejects that he is of any interest to the Maoists. It rejects he went to India because he feared the Maoists and it rejects that Maoists looked for him while he was in India and it rejects after he returned to Nepal the Maoists threatened him to repay any money. Weighing heavily in favour of that finding is that the applicant resided in Nepal for 8 years between his return from India and his coming to Australia during which time, he was never targeted for harm by Maoists.

32. The Tribunal has considered that as Maoists abducted the applicant in the past, whether the applicant faces a real chance of being abducted again. The Tribunal considers there to be only a remote or speculative chance and therefore not a real chance of that occurring. The Tribunal reaches that conclusion due to the changed political circumstances in Nepal. At the time the applicant was abducted as a young man, the Maoists were actively engaged in armed struggle against the Nepalese authorities. The Tribunal put to the applicant during the hearing country information from the delegate’s decision the Maoists are now the ruling party in Nepal. The applicant agreed with that, but noted there is a split in the Maoists. While mindful of the applicant’s claims regarding the split in the Maoists, the evidence before the Tribunal does not indicate any Maoist group are currently actively abducting people in Nepal.

33. The Tribunal has considered the claims of the applicant individually and cumulatively. The Tribunal has found above that the applicant is not a person of interest to the Maoists. It follows that the Tribunal finds there is only a remote or speculative chance and therefore not a real chance the applicant will face serious harm from Maoists or any other persecutor for reasons of the applicant’s imputed anti-Maoist political opinion or any other Convention reason now or in the reasonably foreseeable future if the applicant returns to Nepal.

1. He therefore does not meet the requirements of s.36(2)(a).

   Real risk of significant harm

2. The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances.  

3. On the evidence before it, the Tribunal considered there to be only a remote or speculative risk and therefore not a real risk that applicant will suffer any significant harm from Maoists, if he is removed to Nepal. Given the real chance test for well-founded fear of persecution imposes the same standard as the real risk test of significant harm, for the same reasons set out above, the Tribunal is not satisfied the applicant faces a real risk of significant harm.

4. The Tribunal therefore considers there are no 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 the applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.

5. Therefore the applicant does not meet the requirements of s.36(2)(aa).

   CONCLUSIONS

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

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

8. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

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

   Fraser Syme
   Member