1500071 (Refugee)

[2016] AATA 4854

1500071 (Refugee) [2016] AATA 4854 (26 August 2016)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1500071

COUNTRY OF REFERENCE:                  Nepal

MEMBER:David McCulloch

DATE:26 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 26 August 2016 at 12:36pm

CATCHWORDS

Refugee – Protection visa – Nepal – Political opinion – Member of the Rastriya Prajatantra Party –

Fear of Maoists – Pro-Monarchist – Brother murdered – Inconsistent evidence – Federal court remittal

LEGISLATION

Migration Act 1958, ss 36, 65, 424A, 424AA

Migration Regulations 1994, Schedule 2

CASES

Yao-Jing Li v MIMA (1997) 74 FCR 275

SZGIZ v MIAC (2013) 212 FCR 235

Randhawa v MILGEA(1994) 52 FCR 437

Prasad v MIEA (1985) 6 FCR 155

MIEA v Guo & Anor (1997) 191 CLR 559

Luu & Anor v Renevier (1989) 91 ALR 39

Abebe v Commonwealth of Australia (1999) 197 CLR 510

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 [date] May 2014 and the delegate refused to grant the visa on [date] December 2014.

3. The applicant appeared before the Tribunal on 22 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. 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 the applicant and whether, on his 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 claims that his true identity is [applicant’s name] who was born in Nepal on [date]. The applicant entered Australia on [date] December 2009 travelling on Nepali passport [under another name] born on [date]. The applicant provided a passport [under his name] to the Department in respect of the original Protection visa application made by the applicant on [date] June 2010. The decision of the delegate with respect to that application noted that the passport provided had been forensically examined and found to be a legitimate passport.

11. The delegate of the Minister refused the applicant’s original Protection visa application on [date] November 2010. The applicant sought a review by the Refugee Review Tribunal which affirmed the delegate’s decision on [date] February 2011. Judicial review by both the Federal Magistrates Court and the Full Federal Court upheld the Tribunal’s decision.

12. The current application for a Protection visa was lodged [date] May 2014.

13. 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

14. The application forms for the current Protection visa indicate that the applicant left Nepal because of threats, harassment and the loss of his brother. He left due to fear of Maoists as the applicant is a monarchist and was threatened many times. He was at risk of being killed.

15. The applicant provided a written statement as part of the application which indicated as follows. The applicant was born on [date] in [Village 1], [District 1]. He is of [a certain] ethnicity.  He is married and has [several] [children]. The applicant has two [sisters]. The applicant is Hindu. The applicant completed year [grade] in Nepal and then worked as [occupation].

16. The applicant became a member of the Rastriya Prajatantra Party (RPP) due to the influence of his friend. The applicant is a monarchist by nature. The applicant opposed the Maoists due to their political activities in his village. More than 95 per cent of the villagers were Maoists.  In April 2009, the applicant’s brother was killed by Maoists in the village as he had opposed them. He had been a strong supporter of the RPP. He was beheaded. The applicant indicates that he must take steps to seek justice for the murder of his brother in Nepal. If he returns to Nepal he will pressure the authorities to apprehend the murderers and the applicant fears that he will be targeted by the Maoists and killed. The Maoists have an effective nationwide network and will find the applicant wherever he would live in Nepal. The applicant will speak up for the monarchist cause in Nepal. The applicant has suffered depression and has been constantly worried about his life. The applicant fears that because he left Nepal on the fraudulent passport he will be detained and tortured on arrival for violation of the Nepal Passport Act. The applicant details reasons why he could not live in India.

17. The applicant found a broker who facilitated a false passport.

18. The applicant provided the following documents as part of his first Protection visa application:

    ·Statement from RPP dated [July] 2008 indicating that the applicant, [age], is a general member of the RPP;

    • Statement from RPP, District Working Committee [District 1], dated [January] 2010, indicating that the applicant is an active member of the RPP from the time that he was a student. It indicates that he worked for the party for a long time. He received general membership on [date] July 2008. He has been targeted by Maoists.  Money was demanded of the family by Maoists. On [date] April 2009 [Mr A] was kidnapped at night when he was at home and taken to a nearby forest and slain in an inhumane way;

    ·Statement of Office of Village Development Committee, [Village 1], [District 1], dated [August] 2010 indicating that [Mr A], [age], was involved in the RPP and that he and his family underwent threats and pressure from the Maoists. Maoists were demanding a donation from the family. On [date] April 2009 [Mr A] was kidnapped at night when he was at home and taken to a nearby forest and slain in an inhumane way; and

    ·Certificate of Death Registration dated [August] 2010 certifying the death of [Mr A] on [date] April 2009.

19. In the Tribunal hearing the applicant was asked whether he had himself had been physically harmed by Maoists. The applicant said on an occasion in approximately 2004 he was beaten by Maoists for not agreeing to join them. He indicated that Maoists would also take food and request donations which the applicant provided and paid.

    Independent information

    Background to monarchist parties in Nepal

20. 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.

21. 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.

22. 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

23. 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, whilst 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

24. 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 (current to April 2015).

25. 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.

26. 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

27. 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

28. 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

29. 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 his claims will be assessed against Nepal.

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

4. Firstly, the evidence has not been consistent as to when the applicant became involved in the RPP. In the Tribunal hearing with respect to the current application, the applicant indicated that he became involved in the RPP in 2008.  He indicated that he had no involvement in the RPP prior to that time. The Tribunal noted to the applicant that the supporting statements he had provided from the RPP as part of his first applicantion had indicated that the applicant had been involved with the RPP since he had been a student notwithstanding that he did not receive general membership until 2008. Initially, in response to this inconsistency the applicant said that he operated generally but not as a member. He then indicated that although he was a supporter of the RPP prior to 2008 he did not work for them.

5. Following the hearing the Tribunal wrote to the applicant pursuant to the procedural requirements of s.424A of the Act noting the information from the supporting statement of the RPP provided as part of the first Protection visa application and its inconsistency with the applicant’s evidence in the Tribunal hearing. In response, the applicant indicated that he was not officially or formally involved with the RPP. His involvement before July 2008 was nominal. The applicant indicates that he believes that there may be an interpretation error in the oral evidence.

6. Even if the applicant had indicated in the Tribunal hearing that his involvement was nominal prior to 2008, that still remains inconsistent with the supporting statement which said that he has seen an ‘active member’ since his student days.

7. The applicant also provided a letter following the hearing from the RPP, District Executive Committee, [District 1], dated [April] 2009. It indicates that the applicant has ‘served long’ in the party since his school time but that he only obtained membership in July 2008. It also indicates that Maoists killed the applicant’s brother while he was asleep in the jungle by slitting his throat and the applicant had a threat to his life.

8. The Tribunal is puzzled by the date of this letter, and wonders why it had not been provided before. In any event, the information in the letter that the applicant had been long involved with the RPP since his student days is inconsistent with the applicant’s indication in the hearing that he had no, or only nominal, involvement prior to 2008.

9. The Tribunal draws an adverse inference in relation to the applicant’s credibility as a result of this inconsistency.

10. Secondly, the applicant has not demonstrated a knowledge of royalist political parties, the core beliefs of the RPP, or other relevant political information, which might be expected of someone who had been a member of the RPP, particularly one who has been involved since student days as indicated in supporting statements.

11. The Tribunal put to the applicant in the hearing information pursuant to the procedural requirements of s.424AA of the Act. This is information contained in the first Tribunal decision which details evidence given by the applicant in the relevant hearing. The decision records that, in the hearing, the applicant appeared initially not to be aware and was then confused as to the fact that there were two monarchist parties in Nepal, namely the RPP and the Rastriya Prajatantra Party – Nepal (‘RPP-N’).

12. The decision records that the applicant was not able to provide information as to the reasons for the split between the RPP and the RPP-N, and did not appear to know that there was an RPP-N party. The applicant was not able to indicate what the differing views between the parties were. When asked what the RPP was trying to achieve, he indicated that they wanted a Hindu state led by the monarchy (contrary to independent evidence put to the applicant by the Tribunal in that hearing that the RPP, as distinct from the RPP-N, was no longer seeking Hindu state led by the monarchy and was promoting a democratic republic). The applicant stated that he may have been confused as to the party to which he belonged.

13. The decision records that the applicant was asked if he knew how many parliamentary seats the RPP had won in the last election and the applicant indicated that they had won four seats. The Tribunal noted to the applicant that the RPP had won eight seats and the RPP-N had won four seats.

14. The decision records that the applicant was asked if he could name any of the RPP or RPP-N persons elected to Parliament and the applicant said that he did not know their names.

15. The Tribunal, at the hearing with respect to the current application, noted to the applicant that this information was relevant because the applicant did not demonstrate a knowledge of monarchist politics, or political parties, or their beliefs, or basic information as to members elected, that is consistent with the applicant having been an adherent to the RPP as claimed. It indicated that the consequence of relying on this information could be to question the credibility of the applicant as to whether he was a member of the RPP and to question his credibility generally.

16. In response, the applicant indicated that he had already made a mistake regarding this. He indicated that he was just a small member and had limited knowledge. The Tribunal indicated that whether or not the RPP believed in the monarchy is a core issue. The applicant maintained that the RPP does believe in the monarchy.

17. Whilst the Tribunal acknowledges that low-level and unsophisticated members of political parties may not have intimate knowledge of party dynamics and policies, and issues such as number of seats won in an election, it finds the applicant’s mistaken belief that the RPP supported the monarchy, when it does not, as not consistent with the applicant having been involved in the party.

18. Thirdly, the applicant has not been consistent in terms of how his brother was killed. The applicant’s written claims as part of the current Protection visa application indicate that his brother was beheaded. In contrast, in the Tribunal hearing with respect to the current application, the applicant said that his brother was hanged. This inconsistency is undermining of the applicant’s credibility.

19. The letter provided, following the hearing, from [District 1], RPP indicates that the applicant’s brother had his throat slit.  Also provided following the hearing is a letter dated [August] 2010 from the Village Development Committee, [District 1].  Whilst similar to the letter provided from the Committee on the same date as part of the first application, it is different from the first letter in some respects.  Only a translated version appears on the Departmental file relating to the first application so it is not possible to determine if it is the same document, although it has the same date.  It differs from the earlier version by specifically indicating that the applicant’s brother had his throat slit. Unlike the first letter, it makes no mention of the applicant’s family being subject to donation requests.

20. However, for the purpose of this particular issue, both letters refer to the applicant’s brother having his throat slit which is not consistent with the applicant’s indication in the hearing that he was hanged.

21. Fourthly, there is an inconsistency as to the date on which the applicant’s brother was murdered. In the Tribunal hearing, the applicant indicated that his brother was murdered in the 12^th month of Nepalese calendar [year].  In contrast, the two supporting statements provided by the applicant in relation to the murder, indicate that it took place on the 15^th day of the first month of the Nepalese calendar [year].  Whilst a discrepancy in dates of this relatively short time frame is not an overly significant issue, when the inconsistency was pointed out to the applicant in the hearing, he maintained that the murder took place in the 12th month of [year].  That, at the very least, raises credibility issues in relation to the supporting statements which both refer to a specific date in the first month of [year].

22. Following the hearing, the Tribunal wrote to the applicant in accordance with the procedural requirements of s.424A of the Act concerning this inconsistency. In response, the applicant indicated that there is no inconsistency because the supporting statements indicate the correct date. The applicant indicates that his ability to recall in the hearing was affected by nervousness and depression.

23. The Tribunal notes that, in the hearing, the applicant did not equivocate when confirming for the second time that the death of his brother occurred in the 12^th month of [year]. The Tribunal is not satisfied that the applicant was affected by nervousness or depression such as to cause confusion. Had he been so, the Tribunal considers that he would not have provided the definitive answers which he did.

24. The Tribunal considers that the inconsistency on this issue, whilst relatively minor, does undermine the applicant’s credibility to some extent.

25. Fifthly, the applicant’s account, in the Tribunal hearing, as to the circumstances in which his brother was taken by Maoists form the home and murdered was not consistent with the supporting statements. Both the statements of the Village Development Committee and the RPP District Working Committee, [District 1], indicate, in identical terms that, when the applicant’s brother was kidnapped he was ‘on bed at home’. The Tribunal takes this as indicating that he was ‘in’ bed.  In the hearing, the Tribunal asked the applicant when his brother was taken, and he said that it was in the evening. The Tribunal asked the applicant if the family were up at the time and he said that they were. The Tribunal pointed out to the applicant that the supporting statements indicate that his brother was in bed. The applicant then said that the rest of the family were up, but his brother was in bed.

26. Following the hearing, the Tribunal wrote to the applicant, in accordance with the procedural requirements of s.424A of the Act, noting the inconsistency between the supporting statements provided as part of the first application, and the applicant’s evidence in the Tribunal hearing, with respect to the current application. The applicant referred to the supporting statements provided as part of the first application, indicating where his brother was when he was taken by Maoists, and indicated that he did not recall everything accurately as he was affected by nervousness and depression.

27. The Tribunal finds the applicant’s evidence on this issue unsatisfactory. The applicant initially indicated, in the hearing, that the family was up and about, and made no qualification that his brother was in bed.  The Tribunal is not satisfied that nervousness and depression account for this discrepancy. The applicant made no mention at the beginning of the hearing, when asked about any impediments to him giving evidence, that he was suffering from depression. Whilst the Tribunal accepts understandable nervousness in the context of the hearing, the Tribunal is not satisfied that this is the cause of the inconsistency. The Tribunal considers that the applicant has changed his evidence during the hearing to account for the discrepancy in a way whcin does not reflect the truth. Whilst this is a minor detail it nevertheless goes to the truth of the applicant’s account.

28. Sixthly, the applicant has not been consistent in terms of the whereabouts of his family since the applicant left for Australia. In the Tribunal hearing, the applicant said that his wife and four children had stayed living in his home village of [Village 1]. The Tribunal noted to the applicant, in accordance with the procedural requirements of s.424AA of the Act, the fact that, in the interview with the delegate of the Minister with respect to the current application, the applicant had indicated that his family had had to leave the village due to the difficulties. In response to this inconsistency, the applicant indicated that he nothing to say.

29. The Tribunal finds the inconsistency on this issue as undermining as to the general credibility of the applicant.

30. There is one final issue which was of concern to the Tribunal but which, ultimately, in relation to which, the Tribunal does not draw an adverse inference. The concern is in relation to the fact that key parts of the supporting statements provided by the Village Development Committee and the RPP District Working Committee, [District 1] are in identical terms.  This casts doubt as to whether those documents were independently written by the claimed bodies or are genuine.  Although the documents are claimed to be written almost six months apart in 2010 they both described the circumstances surrounding the murder of the applicant’s brother in identical ways, namely:  [the Maoists took him] at night time while he was on bed [sic]  at home, and took him to the nearby forest and slew him in a very inhumane way. The whole [family] is thus bereaved by this event to date’

31. The Tribunal pointed out to the applicant in the hearing these identical statements and indicated that they cast doubt upon whether the documents were independently written. The Tribunal noted the ease with which fraudulent documents are obtainable in Nepal.  The applicant maintained that the documents were independently written by the two respective organisations.

32. Following the hearing, the Tribunal wrote to the applicant, in accordance with the procedural requirements of s.424A of the Act, noting the potential for adverse inference to be drawn from the identical wording in the information contained in the supporting statements provided as part of the first Protection visa application. In response, the applicant indicated that the identical terms could be a product of the translation, not the originals. The applicant indicated that a re-translated version of the documents would be provided.

33. The applicant provided, following the hearing a somewhat different translated version of the letter from the Village Development Committee dated [August] 2010, as outlined above. It is not clear whether the same original document is being translated as no copy of the original document appears on the Departmental file relating to the first application. There are material differences in the translations. The first makes reference to donation requests which are not referred to in the second.

34. Whilst the Tribunal has concerns about the identical wording in the original translations, it does not draw an adverse inference, given uncertainty about the original documents and translations.

35. Considering the six issues of concern, the Tribunal does not consider that the applicant is a credible or truthful witness. The cumulative impact of the difficulties with the evidence is significant, a number of them going to issues at the heart of his claims. Some of the issues are more minor, but they do buttress more significant concerns.

36. The Tribunal is not satisfied as to the truth of any of the applicant’s substantive claims.

37. The Tribunal is not satisfied that the applicant was ever a member of the RPP. The Tribunal is not satisfied that the applicant’s brother was taken and murdered by Maoists. The Tribunal is not satisfied that the applicant was threatened or physically harmed by Maoists as a result of involvement in the RPP or due to threats to the applicant joined their party.  The Tribunal is not satisfied with the truth of claims by the applicant in the Tribunal hearing that Maoists have been asking after the applicant since he came to Australia.

38. It follows from these findings that the Tribunal is not satisfied that the applicant would be a member of the RPP, or involved in royalist political parties, should he return to Nepal. Given that the Tribunal has not believed that the applicant’s brother was murdered by Maoists, there is no basis on which it considers that he would be seeking the culprits of the murder. The Tribunal is not satisfied that there is evidence which establishes the applicant would be politically involved in any other way.

39. The Tribunal has considered the supporting documents in reaching its credibility conclusions. However, given the many credibility issues identified, and inconsistencies between the applicant’s claims and the supporting documents provided by the applicant, and noting the ease with which forged documents are obtainable in Nepal, the Tribunal gives the supporting documents little weight.

40. Given those findings, the Tribunal is not satisfied that there is a real risk of the applicant facing significant harm as a result of past or future involvement in the RPP or any other political involvement, or due to the applicant’s brother being murdered by Maoists and any future attempts by the applicant to find the culprits, or as a result of past threats or harm the applicant has suffered from Maoists.

41. The Tribunal is inclined to accept that there may have been requests to the applicant for donations by Maoists, and requirements to provide food during the period of the insurgency. The Tribunal is of the view that these requests would have been for relatively modest amounts. Given the independent information contained in this decision concerning the changed political situation following the end of the insurgency, and the relative lack of recent political violence or activity by Maoists, the Tribunal does not consider that there is a real risk of the applicant facing significant harm on return to Nepal today due to requests for donations or goods from Maoists.

42. The Tribunal summarised, in the hearing, the independent information in this decision concerning the changed political situation in Nepal and the fact that there is a diversity of political opinion and that the DFAT assessment is that the risk of violence as a result of political opinion is low. The Tribunal noted to the applicant that even if it was to accept his claims, it was inclined to consider that the claimed events which occurred during the period of the insurgency would not lead to a real risk of significant harm to the applicant in Nepal today. The applicant, in response, initially said he had nothing to say but, later in the hearing, said that, despite the independent information, the situation is still the same. The Tribunal finds it unnecessary to make a finding on a risk of harm based on the Tribunal accepting the truth of the applicant’s claims, because the Tribunal is of the view that key relevant claims have been untruthful.

43. The Tribunal addresses the real risk of the applicant facing significant harm due to being charged, fined, detained, jailed or tortured for leaving Nepal on a fraudulent passport.  The applicant has a legitimate passport and the Tribunal is of the view that he would return to Nepal on that passport. The applicant is suggesting that, because he will be returning on a Nepalese passport which does not have an exit stamp, he is at risk of being charged as it would be assumed that he had left on a fraudulent passport.

44. The Tribunal accepts, based on independent information, that there is an offence under the Passport Act for making a journey abroad other than on a valid passport in the person’s own name. The penalty is imprisonment for one year or a fine of up to Rs.5000, or both.[18]

    [18] Country of Origin Information Services Section, Department of Immigration and Border Protection – Nepal: CI160512173132198 – Fraudulent Passports – Irregular movement

1. However, no independent evidence has been provided by the applicant which would support the position that the person would be charged or harmed on the basis of returning to Nepal on a valid passport without an exit stamp, in the absence of the applicant being actually found travelling on a fraudulent passport.

2. The Tribunal caused research to be undertaken relating to the circumstances in which individuals would be charged for leaving Nepal on false passports. Reports were provided of individuals being charged in possession of fraudulent passports, while seeking to travel on them. No reports were obtained of individuals being charged based on returning to Nepal on valid passports, but without exit stamps.[19] This evidence was summarised to be applicant in the hearing. 

   [19] Country of Origin Information Services Section, Department of Immigration and Border Protection – Nepal: CI160512173132198 – Fraudulent Passports – Irregular movement

3. There is no evidence before the Tribunal which causes it to be satisfied that the applicant would be charged, detained or tortured for leaving Nepal on a fraudulent passport simply on the basis of returning to Nepal on a valid passport without an exit stamp. The Tribunal is therefore not satisfied there is a real risk of significant harm on this basis.

4. In summary, the Tribunal is not satisfied that 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 for any of the reasons claimed, or any other reasons.

5. 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

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

   David McCulloch
   Member