1500070 (Refugee)

[2016] AATA 4049

1500070 (Refugee) [2016] AATA 4049 (6 July 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500070

COUNTRY OF REFERENCE:                  Nepal

MEMBER:David McCulloch

DATE:6 July 2016

PLACE OF DECISION:  Sydney

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

Statement made on 06 July 2016 at 1:10pm

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 applied for the visa [in] May 2014 and the delegate refused to grant the visa [in] December 2014.

3. The applicant appeared before the Tribunal on 20 June 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

5. Section 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).

6. 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.

7. 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’).

8. 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. The Tribunal has before it DFAT Country Report – Nepal, 21 April 2016.  A copy of this report was provided to the applicant in the hearing.

9. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background and complementary protection criterion only

10. The applicant arrived in Australia [in] August 2009 on a [temporary] visa. The applicant’s visa was on the basis that she was the partner of the primary visa holder. She has indicated that the marriage was a sham. The visa was valid until [December] 2010. The original Protection visa application was lodged [in] January 2011. This was refused by a delegate of the Minister [in] February 2011. A review by the Refugee Review Tribunal affirmed the delegate’s decision on 8 June 2011 (‘first Tribunal decision’). The current application for a Protection visa was lodged [in] May 2014.

11. The current application is allowed as a result of the Federal Court decision of SZGIZ v MIAC (2013) 212 FCR 235, dated 3 July 2013. This allows a further protection visa application to be made before 28 May 2014 under the complementary protection criterion in a situation whereby the person’s prior protection visa application was made and refused prior to the commencement of the complementary protection criterion on 24 March 2012. This means that the Refugee Convention aspect of the applicant’s claims has been determined and the matter before the Tribunal relates only to complementary protection criterion (section 36(2)(aa) of the Act).

    Claims

12. The application forms for the latest Protection visa indicate that the applicant was a member of the Rastriya Prajatantra Party (RPP) and she is a monarchist. They indicate that the applicant has been threatened and targeted by the Maoists due to her political involvement.  This is why she fled Nepal. The applicant fears being raped, tortured or murdered if she returns to Nepal. The applicant indicates that the risk is greater because she is a woman. The applicant indicates that she would not be protected by authorities because they are incapable and corrupt.

13. It is indicated that a further statement would be provided. No such statement was provided. The applicant did not attend the interview scheduled with the delegate of the Minister to answer questions in relation to her claims.

14. The first Tribunal decision records the following claims made by the applicant in the relevant Tribunal hearing. The applicant was a member of the RPP and became involved in approximately 2007. The applicant’s father, husband and siblings were also members of the RPP.

15. The applicant had attended about two RPP events. She and a friend were kidnapped by Maoists at a celebration that was taking place for the King’s birthday on 7 June 2008. She indicated that this was about a month before the 2008 election. Her friend’s name was [Ms A].  They were taken into the forest where they spent two or three days. The applicant managed to escape [in] July, but leaving [Ms A] with the kidnappers. The applicant spent a night at her [relative]’s home which was nearer to where they escaped than her own home. The applicant then travelled to Kathmandu where she stayed until coming to Australia.

16. Prior to travelling to Kathmandu, the applicant complained to police in a regional centre of Myagdi, but they would not go into the village to take action because of the heavy presence of Maoists. 

17. The applicant did not have any difficulties in Kathmandu because she was there with her relatives and there are a lot of police and soldiers and it is a big city. She felt safe during this period. The applicant left for Australia because of the kidnapping incident.

18. In the Tribunal hearing with respect to current application, the applicant made additional claims. She indicated that in 2060 (Nepalese Calender), (approximately 2003 in the Gregorian Calender), the applicant, and other girls, were taken by Maoists for several days to assist with wounded combatants.  The applicant indicated that she was not taken for any political association or reason. She said that she was not harmed during this period but that she was threatened with being raped. She indicated that others were raped.

19. The applicant also indicated in the hearing that she fears harm from her husband. The applicant indicated that her husband beat her after they were married. She indicated that one of the reasons she came to Australia was to escape her husband.

20. The applicant provided a statement to the Tribunal at hearing from [an official of a village] Committee dated  [February] 2015. It indicates that after the applicant’s marriage in December 2008, drugs and alcohol became an issue for her husband and he used to physically and mentally mistreat the applicant.  It indicates that the applicant came to Australia to avoid the problem. Now that the applicant wants to return to Nepal, her husband has many objections and is making threats. It indicates that due to his behaviour it is difficult for her to return.  In the hearing, the applicant said that in about May 2015 her husband began to threaten her over the phone.  She indicates that her in-laws have also been abusive.  The applicant indicated that her husband now lives in Kathmandu. She indicated that during the marriage she lived with her husband in her in-laws home in the village.

21. The applicant indicated in the hearing she has no support from her relatives.

    Independent information

    Background to monarchist parties in Nepal

22. The Rastriaya Prajatantra Party (RPP), also known as the National Democratic Party, is a historically monarchist party that was formed in 1992 by a ‘merger of two groups that both called themselves the National Democratic Party, one led by S.B. Thapa and the other led by L.B. Chand’.[1]

    [1] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1036.

23. Factionalism along Thapa versus Chand lines eventually led to splits in the RPP. The first of these ruptures occurred in early 1998, when the RPP ousted Chand and nine of his supporters for lack of loyalty to Thapa in his then-position as Prime Minister. Chand went on to form a ‘new RPP’, ‘RPP (Chand)’, but in January 2000 – following the party’s dismal showing in the 1999 elections – RPP (Chand) merged back into the RPP.[2] Further rifts between the Thapa and Chand factions resulted in another split in 2005: this time, it was Thapa and his supporters who left and formed their own party – the Rashtriya Janshakti Party (RJP).[3] Unlike Chand, S.B. Thapa did not return to the RPP, but his absence did not end the divisions within the party.[4] The RPP-N was born out of the RPP’s third split, in 2006.[5]

    [2] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1036.

    [3] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1036.

    [4] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1037.

    [5] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1037.

24. Throughout the mid-2000s, the RPP was, by its own report, taking an ‘increasingly pro-democratic stance’,[6] but there were elements within the party that ‘approved participating in King Gyanendra’s government’ after he seized absolute power in 2005.[7] In essence, these individuals were out of step with an RPP that was beginning to question the king’s actions and distance itself from the monarchy.[8] In January 2006, RPP President Rana expelled ten of these ‘royalist dissidents’, who went on to form the RPP‑Nepal (RPP-N) under the leadership of Kamal Thapa.[9]

    [6] “About us: Rastriya Prajatantra Party (RPP)” n.d., Website of the RPP, - Accessed 30 July 2010.

    [7] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1038.

    [8] “The RRP: Radicalism or Ruse?” 2007, Nepalinetbook (blog), 3 December, - Accessed 30 July 2010 – Attachment 1; “RPP doesn’t favour monarchy: Rana” 2007, Nepal News, 19 August, - Accessed 2 August 2010 – Attachment 2; Chapagain, K 2010, “Nepal: Third Failure in Parliament to Elect a Premier”, New York Times, 2 August, - Accessed 3 August 2010; “About us: Rastriya Prajatantra Party (RPP)” n.d., Website of the RPP, - Accessed 30 July 2010.

    [9] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp  1030-1040, – Accessed 4 August 2010, p 1037. Please note, Kamal Thapa is not to be confused with S.B. Thapa

25. The position on the monarchy remains a key difference between the RPP and RPP-N. Sources suggest that the RPP has retreated from a pro-royalist stance, while the RPP-N continues to advocate a return to a Hindu monarchist state.  The International Crisis Group report also notes that the RPP and RJP both ‘accept that Nepal should remain a republic, but ‘are unclear about what they stand for.’[10]

    More recent violence against members or supporters of monarchist parties

    [10] International Crisis Group 2012, Nepal’s Constitution (II): The Expanding Political Matrix, Asia Report N°234, 27 August, p. 22

26. The Tribunal made a request of the Country of Origin Information Section of the Department of Immigration and Border Protection to research information about political attacks by Maoists or others on members or supporters of royalist political parties in Nepal since 2011. The following information was obtained (with the report being produced in April 2015).

27. Two reports of Maoist violence against pro-monarchy supporters in 2011 were located. No further reports of violence perpetrated by Maoists or others against conservative pro-monarchy supporters were located from 2011 to date.

28. Maoist violence periodically continued following the signing of the Comprehensive Peace Agreement in 2006. Much of this violence was perpetrated by underground and splinter faction Maoists groups and the Unified Communist Party of Nepal (Maoist) (UCPN-M) until 2012. Intra-party violence was noted in 2011 amongst Maoists.[11] In 2012, the UCPN-M was removed from the United States list of world-wide terrorist organisations. ^[12]

    [11] South Asia Terrorism Portal 2012, Nepal Assessment 2012, 9 January, para.10-13 < Accessed 10 January 201

    [12] South Asia Terrorism Portal 2013, Nepal Assessment 2013, 20 January, para.7 < Accessed 29 January 2013

29. Two incidents of Maoists violence against pro-monarchists in 2011 were located. On 26 April 2011, ‘[a]t least 14 RPP activists were injured in a clash with the UCPN-M cadres at Madi in Chitwan District. According to eye witnesses, the clash ensued after the Maoist cadres suddenly attacked the RPP activists while they were attending a party workers’ meeting at Madi.’[13] On 1 November 2011, ‘[a] cadre of Rastriya Prajatantra Party (RPP), Pemba Lama of Bhotang VDC-1, was injured when two local UCPN-M cadres – Raju Tamang and Mangale Tamang – attacked Lama with Khukuris on the charge of having different political belief.’[14]

    [13] South Asia Terrorism Portal 2011, Incidents involving Communist Party of Nepal-Maoist 2011, 30 December < Accessed 12 January 2012

    [14] South Asia Terrorism Portal 2011, Incidents involving Communist Party of Nepal-Maoist 2011, 30 December < Accessed 12 January 2012

30. According to the South Asia Terrorism Portal’s Nepal Assessment 2015, no Maoist insurgency related civilian deaths were record during 2014:

    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. Significantly, since March 2000, when the South Asia Terrorism Portal (SATP) database commenced compiling data on insurgency-related fatalities in Nepal, it 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. At its peak in 2002, the insurgency saw 4,896 persons, including 3,992 Maoists, 666 Security Force (SF) personnel and 238 civilians, killed in a single year.[15]

    Latest DFAT information

    [15] South Asia Terrorism Portal 2015, Nepal Assessment 2015, para.1 < Accessed 23 March 2015

31. The recent DFAT Country Report – Nepal, 21 April 2016 provides as follows:

    The overall security situation throughout Nepal has dramatically improved since the end of the conflict. However, poverty, unemployment, weak rule of law and a culture of impunity are causes of insecurity in Nepal. Political party interference in security processes and criminal investigations further undermining effective security and justice. Political protests and demonstrations occur regularly and can turn violent without warning. Political parties the have been known to enforce strikes (bandhs) which can close down transport and business operations for extended periods, although these have occurred less frequently in recent years. There are credible allegations that groups associated with political parties have committed acts of violence, extortion, and intimidation. Violent protests and strikes over the constitution occurred in the far west, mid-west and east in August 2015.[16]

    […]

    Political actors (from all major political parties and smaller identity-based groups) are key elements of Nepali society. Political affiliation, both at an organisational and individual level, is an important aspect of identity. This was a cause of instability during the conflict and in the years immediately following. Political youth wings, bandhs (strikes), demands for donations from local authorities and the private sector, and the obstruction of tender-bidding processes in line with political interests all contributed to this instability.

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

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

    DFAT assesses that while violence has occurred in the aftermath of the release of the new Constitution and Maoist/and disillusioned splinter groups continue to threaten a return to bandhs and or violence, the overall risk [based on political opinion, actual or imputed] is low.[17]

    [16] DFAT Country Report – Nepal, 21 April 2016, para 2.34

    [17] DFAT Country Report – Nepal, 21 April 2016, para 2.36-3.29

    Hearing, credibility, findings and assessment

1. In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA  (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

2. The Tribunal is satisfied that the applicant is a citizen of Nepal, and accordingly her claims will be assessed against Nepal.

3. The Tribunal has a number of credibility concerns with the applicant’s claims. 

4. Where adverse information fell within the provision of s.424AA of the Act, it was put to the applicant in accordance with the procedural requirements in that section.

5. The concerns with the applicant’s evidence follow.

6. Firstly, the applicant has been inconsistent as to the period of time she was held by after being kidnapped by the Maoists (in relation to the second claimed incident that occurred in either 2008 or 2009).

7. The first Tribunal decision indicates that, in the relevant interview with the delegate, the applicant said that she was detained for seven days. In contrast, the decision records that in the relevant Tribunal hearing the applicant indicated that she was with the kidnappers for two to three days. In contrast again, in the Tribunal hearing in relation to the current application, the applicant indicated that she was detained for one month.

8. In response to this inconsistent evidence in the Tribunal hearing with respect to the current application, the applicant indicated that she is having difficulty recalling the exact dates and made reference to the suffering she is under due to the difficulties faced by her husband.

9. The Tribunal has difficulty accepting that the passage of time or anxiety relating to the applicant’s husband could explain these very significant differences in the time frame of what would be an extremely impactful event.  

10. Secondly, the applicant has not been consistent in terms of claims of other family members being involved in the RPP. In the Tribunal hearing with respect to her current application, the applicant said that neither her siblings nor her husband were involved in the RPP. In contrast, the first Tribunal decision indicates that, in the relevant Tribunal hearing, the applicant said that her husband and siblings were members of the RPP.

11. In response to this inconsistency, the applicant said that maybe she forgot about the involvement and that her main problem was the difficulty with her husband. The Tribunal does not think it plausible that the applicant would forget a simple and key detail such as this. The inconsistency is undermining of the applicant’s credibility concerning RPP involvement and her credibility generally.

12. Thirdly, the applicant has not been consistent as to the year in which the kidnapping by Maoists took place. In the Tribunal hearing with respect to the first application, as recorded in the Tribunal decision, the applicant said that the kidnapping occurred about a month before the 2008 elections on 7 June 2008, the King’s birthday. In contrast, in the interview with the delegate with respect to that application, and in the Tribunal hearing with respect to the current application, the applicant indicated that it occurred on the King’s birthday celebrations on 7 July 2009.

13. In response to this inconsistency, the applicant referred to the stress she was under due to difficulties in relation to her husband and that it was a long time ago. The applicant maintained at the kidnapping occurred on 7 July 2009.

14. The Tribunal acknowledges that there is a consistency in the evidence on this issue as between the interview with the delegate of the Minister with respect to the first Protection visa application and the Tribunal hearing with respect to the current application. However, the divergent evidence in the Tribunal hearing with respect to the first application that the kidnapping occurred in proximity to the 2008 election causes the Tribunal credibility concerns. The Tribunal notes that in the hearing with respect to the current application, the applicant indicated that she had not even become involved in activities of the RPP at the time of the 2008 election.

15. The Tribunal does note that there is a problem between the claim in the Tribunal hearing with respect to the first application that the kidnapping occurred in June 2008 given that the King’s birthday was not until 7 July 2008. Also, the 2008 election was held in April which is not consistent with a claim that the kidnapping occurred a month before the election.

16. As noted, the applicant, in the Tribunal hearing with respect to the current application, maintained that the kidnapping occurred on 7 July 2009. That timeframe is consistent with evidence given by the applicant on a number of occasions that, following her release by the kidnappers, that she spent about a month in Kathmandu before travelling to Australia. The 7 July 2009 timeframe for the kidnapping presents additional credibility concerns canvassed in the next two issues.

17. Fourthly, Departmental records, as referred to in the Tribunal decision with respect to the first Protection visa application, indicate that the applicant signed a health undertaking for her [temporary] visa on 8 July 2009, which is a date on which she claimed she was being detained by Maoists.

18. In response, the applicant said that she was definitely detained and referred to the problems with her husband.

19. The Tribunal does not accept this explanation as explaining the clear fact, given the date of the health undertaking, that the applicant was not in the midst of a kidnapping by Maoists on 8 July 2009, as she claims.

20. Fifthly, the timing of the application for the applicant’s [temporary] visa is not consistent with her claim that it was the kidnapping by the Maoists (which she now maintains occurred on 7 July 2009) was the reason that she decided to make arrangements to travel to Australia. This is not consistent with the fact that, as recorded in the first Tribunal decision, the applicant signed the [temporary] visa application form [in] November 2008. That suggests the applicant was making arrangements to come to Australia at a point prior to the event that she claims was the reason for her deciding to leave Nepal.

21. The Tribunal also notes that the applicant was not married until December 2008 which would also suggest that her travel to Australia was for reasons other than to escape from her husband. As indicated, in the Tribunal hearing with respect to the current application, the applicant indicated that this was a key reason she decided to leave Nepal.

22. In response, the applicant said that she had forgotten the date and asked for forgiveness.

23. The date of the [temporary] visa application is a matter of record and it is inconsistent with the applicant’s claims that it was the kidnapping in July 2009 or what happened after her marriage in December 2008 that were the catalyst for her deciding to flee to Australia and hermaking arrangements to do so.

24. Sixthly, the failure by the applicant to make claims prior to the Tribunal hearing with respect to the current application that she feared harm based on the treatment by her husband and that she left Nepal partly for that reason, is undermining the truth of those claims. The applicant has claimed, as attested also in the written statement by the local Village Development Committee, that she was mentally and physically abused by her husband whilst she was in Nepal and that she left Nepal in part due to escape the harm from him.  However, this was not a claim made by the applicant as part of the first Protection visa application nor was it mentioned as part of the current application until the day of the Tribunal hearing.

25. In response to this concern in the hearing, the applicant said that it was not until a year ago that her husband started to threaten her over the phone which is why it has not been mentioned before. The Tribunal does not think that this is consistent with claims that the applicant suffered harm from her husband whilst in Nepal and that this was part of the reason for her leaving Nepal.

26. The Tribunal pointed out to the applicant that fraudulent documents are readily obtainable in Nepal[18] and it would need to consider the supporting statement she had provided in relation to harm by her husband in this context, and also considering other credibility issues with the applicant’s evidence. The applicant maintained that threats had been made by the husband and her in-laws.

    [18] Immigration and Refugee Board of Canada 2009, NPL103010.E - Nepal: Prevalence of forged, fake or falsely acquired documents, including identity documents, professional certifications, membership cards and employment records, 26 January –

27. Seventhly, the delay by the applicant of 17 months after arriving in Australia to make the application for the Protection visa is undermining of the applicant leaving Nepal for the reasons claimed, and holding a fear of returning. In response, the applicant said that it was not until the [temporary] visa expired that she got advice from a friend about the option for a Protection visa. The Tribunal considers that if the applicant had fled Nepal either due to harm from Maoists and/or from her husband, and feared returning on those grounds, that it is likely she would have researched and made an application for a Protection visa at an earlier point in time.

28. These seven inconsistencies and problems with the claims and evidence are numerous, and a number go to issues at the heart of the applicant’s claims. The cumulative effect of these difficulties and evidence are such that the Tribunal is not satisfied as to key aspects of the applicant’s claims. The Tribunal is not satisfied that the applicant has been a truthful witness.

29. The Tribunal is not satisfied that the applicant or her family were involved in the RPP. The Tribunal is not satisfied that the applicant was kidnapped by Maoists in 2009 (or 2008).  The Tribunal is not satisfied that the applicant was mentally or physically abused by her husband whilst in Nepal. The Tribunal is not satisfied that the applicant left Nepal as a result of wanting to remove herself from harm from Maoists and/or her husband.  The Tribunal is not satisfied that the applicant’s husband has been threatening the applicant since the applicant has arrived in Australia. The Tribunal is not satisfied that the applicant has faced any significant difficulties from her in-laws.

30. Given the many credibility concerns identified, the failure by the applicant to make prior claims as to mistreatment by her husband in Nepal, and the ready ability to obtain forged documents in Nepal, the Tribunal gives the supporting statement from the applicant’s local Village Development Committee no weight in support of her claims. 

31. Given its findings, the Tribunal is not satisfied that there is a real risk of significant harm to the applicant on return to Nepal as a result of being a member of the RPP, her family being members of the RPP, being kidnapped by Maoists in 2008 or 2009, due to mistreatment by her husband in Nepal or due to more recent threats by her husband.

32. After considering the way the evidence was given in the Tribunal hearing, the one issue that the Tribunal is prepared to accept occurred is that the applicant was taken by Maoists in 2003 together with other women from her area, to assist with wounded soldiers, and that the applicant felt threatened during this period with being raped, even though she was not harmed. The applicant gave this evidence with a degree of realism and emotional intensity that caused the Tribunal to consider that she was telling the truth. As indicated by the applicant, she was not taken for any political reason.

33. The Tribunal is not satisfied, however, that this incident, occurring many years ago, provides a basis for a real risk of significant harm to the applicant today. Whilst what happened to the applicant is consistent with what Maoists may well have done during the period of the insurgency, that insurgency has now ended and the political situation has stabilised significantly. The Tribunal does not consider, in light of the current situation in Nepal, that this event which happened 13 years ago provides a basis for a real risk of significant harm to the applicant in Nepal today.

34. The independent evidence contained in this decision was summarised to the applicant in the hearing.

35. Even if the Tribunal were to accept the applicant’s claims as to involvement in the RPP and the kidnapping by Maoists in 2008 or 2009, and that the applicant intended to be involved in the RPP on return to Nepal (which it does not accept) it does not consider that there is a real risk of significant harm to the applicant should she return to Nepal given the changed political circumstances outlined in the independent evidence.  There is no evidence over the last several years of harm suffered by members of royalist political parties at the hands of Maoists.  Political violence generally has decreased in recent times. DFAT assesses the risk of harm based on political opinion as low. The Tribunal is not persuaded that events, which happened seven years ago and longer, provide a basis on which the applicant would face a real risk of significant harm today, given changed circumstances.

36. The Tribunal notes the information set out in this decision from DFAT concerning the treatment of women in Nepal. The Tribunal accepts that women in Nepal can suffer discrimination and mistreatment.  However, the Tribunal is not satisfied with the truth of the applicant’s claims that she has been mistreated or threatened by her husband or her in-laws. The Tribunal is inclined to think that the applicant would return to her husband if she returns to Nepal. If the applicant and her husband would not continue in their relationship on the basis of their significant time apart, the Tribunal is of the view that this would be a mutual decision.

37. The Tribunal is also not satisfied with claims by the applicant that she is not supported by her relatives. The applicant gave evidence in the Tribunal hearing that she has her mother[and siblings] who live in her home village. She gave evidence that she has [a relative] in Kathmandu who provided support for her in the period prior to her coming to Australia. The applicant has provided no cogent evidence that her immediate and extended family would not provide support to her, and there is nothing in her circumstances as found by the Tribunal that would suggest this.

38. Although women in Nepal can suffer difficulties, the Tribunal is of the view that the applicant has the support of her family, and most probably her husband, such that she would not be at a real risk of significant harm in Nepal based on being a woman.

39. In summary, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant been removed from Australia to Nepal, that there is a real risk that she will suffer significant harm for any of the reasons claimed, or for any other reasons.

40. 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 complementary protection criterion. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

41. 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

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

    David McCulloch
    Member