1500807 (Refugee)

[2016] AATA 4157

1500807 (Refugee) [2016] AATA 4157 (14 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500807

COUNTRY OF REFERENCE:                  India

MEMBER:Nicola Findson

DATE:14 July 2016

PLACE OF DECISION:  Perth

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

Statement made on 14 July 2016 at 1:27pm

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 India, applied for the visa [in] January 2014 and the delegate refused to grant the visa [in] December 2014.

   Background and Protection Claims

3. The Tribunal has before it the Department’s file relating to the applicant.  The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.

4. In his application for a protection visa, the applicant, who is [age] years old, indicated that he is a Sikh from Jalandhar, Punjab.  The applicant indicated that he speaks, reads and writes English, Hindi and Punjabi.

5. The applicant departed India on a valid passport and entered Australia [in] July 2008, as the holder of a student visa. 

6. As to the questions on the application asking why he left India and what he fears will happen to him if he goes back, the applicant’s states his parents wanted him to study [subject] in Australia and make a career in this field.  He states that there were no problems in his life until after he arrived in Australia:  “I was studying hard and everything was going smoothly.  I visited India 2-3 times”.  The applicant states that problems for him started when his parents arranged for him to marry a girl in 2011.  He states: “A few months after getting married in 2011, I found out my ex-wife was having an affair.  It was with the same man who is her current boyfriend.  When I found out I confronted her and told her to end her relationship.  She replied that I can’t stop her from seeing him as her parents forced her to marry me.  She told me that her boyfriend is in [Country 1] and he has … money, resources and political connections in India.  She also mentioned that he has the power to do anything he likes so she told me to just return to Australia.  Her [Relative A] visited me one day whilst in India.  He threatened me.  He threatened that were I to leave her, her has the power to place fake charges on me and jail me for life.  It was then that I decided to come back to Australia and continue my studies.  Because of these problems, I was unable to concentrate on my studies as well as receiving constant emails/[social media] messages from my ex-wife’s family and her boyfriend to return to India in order to sort out the problem.  I feel safe in Australia therefore I decided I should divorce her in order to sole the problem.  The problem keeps getting bigger as they’re starting to harass my immediate family eg my siblings.  After living in Australia I realised that this is the best country for me to spend the rest of my life and there is no political corruption here.  I am planning to study and live a safe life for a positive future.”

7. He states:  “My ex-wife’s family are rich people and have relatives involved in politics and the police force.  In the past, I filled out a police report when my ex-wife’s boyfriend was threatening me.  The cops were making fun of me.  The next day, the police arrested my father on a fake accusation and held him in the police’s office for [number] days.  We had to pay INR [amount] to the policeman who wanted a bribe in order to get him released from the cell.  I think the authorities in India are unable to protect me just as they regularly fail to protect other Indians in their country.  So much corruption exists within the police force and I feel they will not give me ultimate protection were I to return to India.  He states: “I fear returning back to India due to the fact that my in-laws and my ex-wife’s boyfriend are still trying to find me and are waiting for me to return to India.  They might kidnap me and physically assault me.  Another possibility is that they might liaise with the Indian police to unlawfully arrest me and place me in jail, because my ex-wife’s [Relative A] is a cop”.  

8. The applicant failed to attend a Departmental interview [in] December 2014.  He sent an email after the scheduled time to apologise for not attending his interview because he was suffering with cold and flu, and seeking another interview time.  The Department responded to the applicant, by email [the next day] and invited the applicant to submit a medical certificate as evidence that he was unable to attend his interview.  He was also informed that the case officer would then consider arranging an alternate interview time.  The applicant did not respond to the Department’s email or submit a medical certificate to explain his non-attendance.

9. In her decision, the delegate set out that the applicant’s claims were vague and unsubstantiated.  The fact that the applicant failed to attend his scheduled interview also lead the delegate to believe that he did not have a genuine fear of harm.  The delegate also had serious concerns about the immediacy, gravity and credibility of the applicant’s claimed persecution in India given that he had not applied for a Protection Visa until approximately 2 years after he began to fear for his life.  Having considered his visa application, migration history in Australia, lack of details in his claims and lack of documentary evidence, it was the delegate’s view that the applicant only applied for a protection visa in a bid to remain in Australia.

   Application for review

10. The applicant applied to the Refugee Review Tribunal on 22 January 2015, for a review of the delegate’s decision.  The Tribunals Amalgamation Act (Cth) 2015 took effect on 1 July 2015.  Transitional provisions of that Act had the effect that an application for review to the Refugee Review Tribunal (now abolished) is taken to be an application to the Administrative Appeals Tribunal.

    Evidence provided at Tribunal hearing

11. The applicant appeared before the Tribunal on 3 March 2016, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by his registered migration agent, [named].  However, his representative did not attend the hearing.

12. The applicant confirmed that he holds a passport issued by the Republic of India and the passport expires [in] 2017.

13. The applicant confirmed to the Tribunal that he was born and raised in Jalandhar, Punjab.  The applicant told the Tribunal that his father was at least [age] years old and a retired [occupation].  His mother was over [age] years old and has worked all of her life as [an occupation].  The applicant has [various siblings], all of whom are older than him.  All of the applicant’s [siblings] are married and living with their families in the Jalandhar district.  [One sibling] is married and lives with his parents.  [This sibling] is employed as [an occupation].

14. The applicant told the Tribunal that he maintains regular contact with his family.  They speak by telephone at least once a week.   

15. The applicant told the Tribunal that he does not have any family in Australia.

16. The applicant told the Tribunal that when he had completed his secondary school studies, he completed a diploma in [subject] at College.  This took one and a half years.  After that, the applicant worked at a company called [name], in a [occupation] role.

17. The applicant told the Tribunal that in 2008, when he arrived in Australia, it was his intention to complete his studies in [subject] and then return to India to set up his own business. 

18. The applicant told the Tribunal that when he first arrived in Australia, he commenced studying [subject] at [a named] University.  He said that it was his intention to complete these studies and return to India to set up a business.  However, after 6 months, he decided he did not want to pursue this field any longer.  Instead he decided to do [a trade] course at a College in [Town 1].  He explained to the Tribunal that he wanted to do physical work.  He qualified with his trade after 2 years.  After that, he was granted a subsequent student visa and he enrolled in a Certificate 4 in [subject].  However, he did not complete this course and his visa was ultimately cancelled, for non-attendance in 2011. The applicant told the Tribunal that he applied to his College for leave, to return to India in order to marry, but the College maintains that they did not receive his application for leave.  Further, the applicant said that from the outset, there were problems in the marriage, and these problems resulted in his study falling by the wayside.  He could no longer concentrate, and only managed to complete one term of his Certificate. 

19. The applicant claims that after his visa was cancelled in 2011, he spent his time just sitting at home.  He said he was living with his friend who helped him with all his expenses.  He said he provided his trade services to help his friend build a house during this time.  When the Tribunal asked about the cleaning work he had done in 2013, the applicant confirmed that he had done some cleaning jobs, but was unable to remember how many months he had worked.  

20. When asked what his original plans were in coming to Australia, the applicant said that his intention was after completing some studies, he would return to India to set up a business there. 

21. When asked to explain his claim to fear harm if he returns to India, the applicant told the Tribunal that in 2011, his family forced him to return to India, to enter in to an arranged marriage with a girl named [Ms A].  The applicant told the Tribunal that after he had married [Ms A], he travelled back to Australia without his new wife and that their relationship broke down soon after that, when the applicant learned that she was having an affair with another man.  The Tribunal was told that the applicant demanded that [Ms A] stop all contact with the other man.  However, she did not do this and instead her boyfriend became hostile towards the applicant for trying to prevent [Ms A] from contacting him.  The applicant and [Ms A] eventually agreed to divorce, and divorce papers were lodged with the court, by [Ms A], [in] July 2013. The applicant claims that the family of his ex-wife will harm him because they are angry that he is no longer married to [Ms A].  The applicant also claims that [Ms A’s] current boyfriend will harm him because he is still angry the applicant attempted to stop the relationship he had with [Ms A]. The applicant told the Tribunal that he doesn’t know of anyone else wanting to harm him should he return to India. 

22. The applicant told the Tribunal that [Ms A] had been married before.  However, her first husband [had a medical issue] and after two or three months as husband and wife, they divorced.  The applicant also told the Tribunal that after the divorce, [Ms A’s] first husband committed suicide.

23. The applicant married [in] June 2011, and stayed on in India for only 2 more weeks before he returned to Australia.  In that time, he said he did not have the opportunity to get to know his new wife properly.  He said that he incurred all of the expenses in relation to the wedding because as it was his wife’s second marriage, her family did not have the money to spend on another one.  He said he spent approximately AUS$10,000.  He said about 100 people attended the wedding.  

24. The applicant told the Tribunal that after they married, [Ms A] remained living in his parent’s home.  He said about 3 months after the wedding, the applicant’ family members discovered she was in constant contact with another man. 

25. The applicant told the Tribunal that he subsequently learned that the man [Ms A] was having an affair with was an Indian national, named [name], living in [Country 1].  He said he also discovered that this man had previously asked [Ms A] to marry him, but her family did not agree to the marriage, because he was involved in illegal drug activity. 

26. The applicant told the Tribunal that [Ms A] has never been to Australia and that they have not spoken to one another since they divorced.   He said he does not know where she is currently living or what she is doing with her life.  The applicant also indicated to the Tribunal that he had not spoken with any of [Ms A’s] family for a “long time”. 

27. The applicant told the Tribunal that his ex-wife’s family is from Jalandhar, which is about [distance] from the applicant’s home area.  He said her father works for [a government entity], and her mother performs home duties as well as being active in politics, in particular the [specified branch] of the current ruling party ([named]).  The applicant told the Tribunal that his ex-wife also has [various siblings], one of whom lives with his grandmother in a different state ([state name]).  He was unable to tell recall their names. 

28. The applicant provided the Tribunal with evidence of his marriage to [Ms A] as well as their subsequent divorce.

29. The applicant told the Tribunal that when he demanded his new wife cease contact with the other man, he was telephoned by him and warned: “I am angry with you and I can kill you or harm your parents”.  The applicant told the Tribunal that his ex-wife’s boyfriend has telephoned him about 3 or 4 times, with similar threats. 

30. The applicant also told the Tribunal about an untranslated Facebook (social media) message he received from [Ms A’s] boyfriend [in] November 2011, which he says contains a threat to kill him.  He said the message says: “I will kill you in India because you are stopping her from speaking to me”.  When queried about how this man had his telephone number, and why he was his ‘Facebook friend’ the applicant replied that his new wife must have divulged his telephone number as well as confirmed him as a friend on Facebook since she knew the identification details and password for his Facebook account.  The applicant told the Tribunal that he has not had any messages from [Ms A’s] boyfriend since he told him that if he wanted to be with her it was fine with him.  He said that was at the end of 2011.

31. The applicant told the Tribunal that in India, people keep grudges in their hearts for a long time.  He said even though there is no ‘fresh cause’, [Ms A’s] boyfriend may still have hatred for him on the basis of what happened years earlier.  The applicant said that [Ms A’s] boyfriend seemed to know his schedule whenever he called.  He also said that given he was involved in illegal business, it would not be difficult for him to pay someone to kill him.  

32. The applicant said his ex mother-in-law told his parents that she would kill him if he returned to India.  He said his parents were given this warning when his ex-wife left his family home in 2013.  The applicant said that [Ms A] married him in the hope that she would settle down in Australia.  But, because this did not happen, her mother became very angry.  The applicant said that members of the [specified branch] (of which his ex mother-in-law is a member) put pressure on his parents to call him back to India in 2013 and 2014.  The applicant could not provide further details about the pressure placed on his parents, just that he had been told it was happening. 

33. The applicant told the Tribunal that he would not be able to get police protection, because [Ms A’s] [Relative A], who is a police officer, will be able to influence anyone who could provide protection.    

34. When asked by the Tribunal why it was he would be targeted by [Ms A’s] family given that her actions had led to the breakdown of the marriage; that she had sought the divorce; and that a significant period of time had passed since they had had any contact.  The applicant responded that he fears harm from her family because they do not like her current boyfriend and would prefer him to still be married to [Ms A].   The applicant said that he is being blamed for ruining [Ms A’s] life.

35. The Tribunal also queried the applicant about why [Ms A’s] boyfriend would be interested in targeting him for harm when he returned to India, given that he had ended up with [Ms A] several years ago.  The applicant replied that it is about having revenge. 

36. The applicant told the Tribunal that he had been, and still was, willing to forget about what had happened and for [Ms A] to join him in Australia.  But, he said that she will not listen to him. 

37. The applicant told the Tribunal that after he and his parents had been threatened by [Ms A’s] boyfriend, his parents lodged a complaint with the police in India.  He said his ex-wife gave the police an assurance that her boyfriend would not commit any wrong, and had his complaint cancelled. The Tribunal pointed out that this was inconsistent with his written application, which stated that he had made a report to the police about being threatened by his wife’s ex-boyfriend, and when he did, the police made fun of him.  The applicant responded that the complaint was actually lodged by his parents.   

38. The applicant also told the Tribunal that [Ms A’s] parents lodged a complaint with the police about his family demanding a dowry from them after the wedding.  He said because of this complaint his father was arrested.  But the applicant said he incurred all the expenses in relation to the marriage. 

39. When asked to comment on the possibility of moving to another part of India, the applicant replied that he would be happy to settle elsewhere.  However, he said that information as to his whereabouts is being shared by his family, and it would not be difficult for him to be located by [Ms A’s] family anywhere in India. He told the Tribunal that wherever he went, he was still going to be in contact with his family.  The applicant indicated to the Tribunal that while he is in Australia, he can be threatened, but he knows no harm can come his way.

40. When asked to clarify what he meant by his family sharing information about him, the applicant replied that he suspected one of his [siblings] of sharing information to [Ms A’s] family about him.  He was unable to explain the basis on which he suspected that this was occurring, other than to say his [sibling] lived close to [Ms A’s] family and that [they] might be giving over information about him in return for money.

41. When asked to comment on the delay between the breakdown of his marriage soon after the wedding in 2011 and applying for the protection visa almost 3 years later in January 2014, the applicant said that when he initially started to receive threats, he was still married to his wife and he was trying to convince her to forget about her boyfriend and start a new life with him.  He said that he was stressed with what was happening in his life because he was not expecting these things to happen. 

42. When asked to comment on why he had not raised his fears with the Department earlier, particularly during the student visa cancellation process, the applicant said that he felt secure in Australia.  He also said that he was not aware that he could actually apply for a protection visa, until a friend from Pakistan, suggested to him that he may be able to apply for the visa.

43. When the Tribunal asked why he had not attended the Departmental interview or provided a medical certificate to the Department to explain his reason for non-attendance, the applicant responded that he was unwell, but he did not visit a Doctor because he already had medication at home and did not have money to pay for one.  He said he did not think to contact the Department to explain this situation.

1. When asked if he had any other reasons to fear harm on his return to India, the applicant replied that that he had no other threat.  He went on to say that he has no intention of staying in Australia long term.  Rather, he said he just needs some more time to sort things out with his ex-wife and her family, and then he will return to India.   

2. The Tribunal explained that it would put information to the applicant pursuant to s424AA of the Migration Act which, subject to his comments, would be the reason or a part of the reason it would affirm the decision under review. It explained the applicant had the opportunity to seek an adjournment before providing a response to the information.

3. The Tribunal put it to the applicant that his visa history, including the significant delay in lodging his protection visa application, casts doubt over the genuineness of his claimed fears about returning to India. Secondly, the applicant’s failure to attend the Departmental interview might lead it to infer that he was not serious about his review, and again, casts doubt over the genuineness of his claimed fears.  Thirdly, inconsistent evidence in relation to the lodgement of complaints to the police about the applicant’s alleged threats casts doubt over his credibility and the genuineness of his claimed fears about returning to India. 

4. There was an adjournment before the applicant provided his comments in relation to the information put to him by the Tribunal.  As to the delay in applying for a protection visa, the applicant responded that he had two reasons for the delay:  one, he was trying to sort everything out back home, and two, he did not want to live in Australia on a refugee visa which would prevent him going back to India.  As to his failure to attend the departmental interview, he reiterated that he was trying to sort things out with his wife and that he did not have any plans to stay in Australia long term.  As to the inconsistent information between his written application and his oral evidence, the applicant responded that his application had been prepared by his agent – [named] – and he had not read what had been put in the application.

5. The Tribunal put it to the applicant that based on country information available to it, he had a right to enter and safely reside in Nepal, to escape the harm he feared in India.  By way of response, the applicant said that he is aware that no visa is required for him to go to Nepal and he could live there.  But, he said that as to his safety and security, there is no difference between India and Nepal.  He said whether he is in India or Nepal, he will still be using his mobile phone, so all of this information could easily get leaked and it would not be difficult for anyone to come from India to Nepal to find and harm him. 

6. The applicant indicated to the Tribunal that he had not made any inquiries about travel to Nepal, or work, or accommodation there.  He also indicated that he does not know anyone in Nepal. 

   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.

   Refugee criterion

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. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

12. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

15. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

17. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

18. 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’).

19. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

20. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

21. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in this case is whether the applicant satisfies the criteria for a protection visa, and whether Australia is taken not to owe protection obligations to the applicant because of s.36(3) of the Act.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference

23. The applicant has provided a passport from India.  In the absence of any evidence to the contrary, the Tribunal has assessed the applicant’s claims against India as his country of nationality. 

    Credibility issues

24. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility.  In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

25. 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, Geneva, 1992 at para 196).  However, the Jandbook also satates (at para 203):

    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.

26. When assessing claims made by the applicants the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of the credibility of the applicants.  When doing so, it is important to bear in mind the difficulties often faced by asylum seekers.  The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

27. 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).

28. 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 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

29. After considering his claims and the evidence he provided at the hearing, the Tribunal concluded that some of his claims were generally credible.  The Tribunal formed the view that the applicant holds some fear of disapproval by members of his ex-wife’s family, to his broken marriage.  The Tribunal accepts as plausible the fact that the applicant’s intention to not remain married to [Ms A] may be viewed with disfavour by members of his ex-wife’s family.  The Tribunal also accepts that the applicant may feel some uncertainty about the precise nature of the reaction of his ex-wife’s family, however, based on all of the evidence, the Tribunal has significant doubt that [Ms A’s] family, her boyfriend, or anyone else, holds a serious intention to seriously harm the applicant should he return to India.  In this respect, the Tribunal found the applicant’s evidence as to the harm he fears vague, general and overall not convincing.  The Tribunal found the evidence of the significant delay in the applicant applying for protection after he claimed his relationship with his ex-wife was over; the evidence concerning his failure to attend his scheduled Departmental interview; the evidence that he had not had any contact with [Ms A] or any of her family for a ‘long time’; the evidence of the time that had lapsed since the last claimed telephone threat; and the evidence of his intention to return to India, undermines his claim that he fears serious harm from his wife’s family, or from anyone else if he returns to India.  The Tribunal also found the applicant’s evidence as to the claimed threats appeared to be vague, inconsistent and overall not convincing.

    Section 36(3) – Right to enter and reside in Nepal

30. In considering the applicant’s right to enter and reside in Nepal, the Tribunal had regard to the Department’s policy guidance as set out in its Procedures and Advice (PAM3) contained in Chapter 4 of the Refugee Law Guidelines.

31. Section 36(3) of the Act provides as follows:

    36 Protection obligations

    (3)  Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

32. In determining whether section 36(3) applies in this matter, the tribunal must consider the international bilateral agreement between India and Nepal known as the Indo-Nepal Treaty of Peace and Friendship of 1950 (the Treaty).  Article 7 of the treaty provides that Indian nationals such as the applicants can enter and reside in Nepal, on the basis that:

    [t]he two governments agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature.

33. In MIAC v SZRHU [2013] FCAFC 91 (SZRHU) the Full Court of the Federal Court held that the correct test for section 36(3) was that set out by Allsop J (as he then was) in V856/00A v MIMA (V856/00A)[1], that there is

    No reason to restrict the meaning of the word ‘right’ to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement, or to exclude from the meaning the notion of liberty or permission or privilege which does not give rise to any particular duty upon the state in question.

    [1] V856/00A v MIMA [2001] FCA 1018 at [31], 114 FCR 408 at 419.

34. In SZRHU the Court was considering the operation of section 36(3) in relation to a Nepalese national’s right to enter and reside in India under the Treaty, but the Tribunal sees no reason why the reasoning of this decision should not apply equally to the case of an Indian’s right to enter and reside in Nepal.  Buchanan J held the correct course for the Tribunal to adopt is as follows:

    [The Tribunal] should pay regard to the actual terms of the treaty and should also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test.

35. The Tribunal found no information indicating that there are any practical barriers for Indian citizens being able to travel to and enter Nepal.[2]

    Documents that are necessary to enter Nepal

    [2] Searches conducted on CISNET, think tanks, academic journals, open source search engines, human rights organisations, non-government organisations, and international news outlets.

36. To allow Indian citizens to make travel on the basis of the following document:[3]

    ·     Passport, or

    ·     Driving license with photograph, or

    ·     Identity card with photograph issued by a government body, or

    ·     Ration card with photograph, or

    ·     Voter identity card with photograph, or

    ·     Registration certificate issued by the Indian embassy to the Indian citizen staying in Nepal, or

    ·     Ad hoc/temporary identity card issued by the Indian embassy to the Indian citizen in the event of exigency, or

    ·     Document with photograph and setting out identity, issued by the sub-divisional magistrate or authority there above.

    [3] Nepal Immigration n.d., ‘Information for Indian Citizens’

37. The Nepali government’s published entry requirements from Indians make it clear that Indian nationals are free to enter Nepal upon presenting basic forms of photographic and other identification.  Country information suggests that the privilege granted is in practice, rarely denied, and enjoyed by many Indians and Nepalis on a daily basis.

    Terms of the Treaty and administrative arrangements

38. A majority of the Full Federal Court in SZRHU found that the terms of the Treaty, while reflecting a mutual right of residence, did not appear to give rights of entry and so did not of itself support a finding of a right to enter and reside in India for the Nepali applicant.[4] However, the Court indicated that the tribunal should pay regard to the actual terms of the treaty and also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens satisfy the requisite test of a liberty, permission or privilege lawfully given, to enter and reside in the country.[5]

    [4] MIMAC v SZRHU (2013) 215 FCR 35, per Buchanan J at [88], Tracey, Robertson and Griffiths JJ agreeing.

    [5] MIMAC v SZRHU (2013) 215 FCR 35, per Buchanan J at [90].

1. The Full Federal Court remitted the case for reconsideration to determine whether the applicant in that case has a right of entry within the sense described by the Federal Court in V856/00A.[6]

   [6] V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408; [2001] FCA 1018.

2. Subsequent judgments of the Federal Circuit Court have upheld decisions in which the Tribunal, following this approach, has found that the administrative arrangements for entry, when read in light of the terms of the Treaty, amount to an entitlement to enter and reside consistent with that described in SZRHU.[7]

   [7] SZTQO v MIBP [2014] FCCA 2636 (Judge Barnes, 30 October 2014); SZTPK v MIBP [2014] FCCA 2259 (Judge Driver, 31 October 2014) at [24]; SZRUT v MIBP [2015] FCCA 262 (Judge Street, 5 February 2015) at [30].

3. Having regard to the information before it, including the evidence indicating the applicant is the holder of a current passport issued in his name by the Republic of India and expiring in 2017, the Tribunal finds that the applicant has a right to enter and reside, whether temporarily or permanently, in Nepal and the right is one that presently exists as he is an Indian citizen, a fact which he is able to demonstrate by way of his current Indian passport. 

4. Having regard to all of the evidence, the Tribunal is satisfied that the Treaty and the arrangements between India and Nepal establish a liberty, permission or privilege in favour of Nepali and Indian citizens, including the applicant, and satisfy the test articulated by Allsop J in V856/00A and endorsed by the court in SZRHU.

5. Having regard to this evidence, and to the terms of the Treaty and the administrative arrangements for entry as summarised above, the Tribunal finds that the applicant does have the right to enter and reside in Nepal for the purposes of s.36(3). Further, having regard to all of the evidence, the Tribunal finds the applicant has not taken any step to avail himself of that right.

6. The Tribunal has considered the applicant’s evidence that he knows he can live in Nepal, but that he knows no one there and there is no difference between India and Nepal, so he would be found there. Notwithstanding, the Tribunal finds that the applicant has not taken all possible steps to avail himself of the right which he currently has to enter and reside in Nepal for the purposes of s.36(3) of the Act.

   Section 36(4) – Well-founded fear of persecution or real risk of significant harm in Nepal

7. Section 36(4) of the Act provides that s.36(3) does not apply where the applicant has a well-founded fear of persecution (s.36(4)(a)) or there is a real risk of significant harm (s.36(4)(b).

8. No statistical information was found on the employment prospects or level of unemployment of Indian nationals who have moved to live in Nepal.  This may be due to the lack of records of Indians moving into Nepal given the open border.[8]

   [8] Adhikary, D. 2002, ‘India, Nepal: Stuck at the border’, Asia Times, 10 February

9. The Tribunal has taken into account that the applicant does not want to go to Nepal and knows no one there.  The Tribunal also accepts general country information which suggests that Nepal is a poor country with challenging economic circumstances which may have deteriorated further since earthquakes in April and May 2015.

10. Section 36(3) does not permit a decision maker to consider whether the exercise of a right to enter and reside is reasonable, rather it requires a consideration of whether a person has taken ‘all possible steps’ to avail themselves of a right to enter and reside.  The Australian courts have confirmed that the phrase ‘all possible steps’ should not be construed as ‘all  steps reasonably practicable in the circumstances’, ‘all reasonably available steps’ or ‘all reasonably possible steps’.[9]

    [9] NBLC v MIMIA, NBLB v MIMIA (2005) 149 FCR 151 per Graham J at [64], Wilcox J and Bennett J agreeing.

11. The Tribunal considers that while the applicant may face challenges in settling in Nepal, s.36(3) does not incorporate any requirement to examine such matters[10].  Nor are Australia’s protection obligations enlivened by virtue of the possibility that a person may suffer privation or be exposed to significant difficulties in maintaining a lifestyle by exercising such a right outside Australia.[11]

    [10] SZMWQ v MIAC (2010) 187 FCR 109

    [11] SZMWQ v MIAC (2010) 187 FCR 109 per Rares J at [32]. However, in SZRTC v MIAC [2014] FCAFC 43 at [48].

12. The Tribunal considered whether the parties the applicant claimed seek to harm him might locate the applicant in Nepal. Based on the Tribunal’s assessment of all the available evidence before it, and the applicant’s claims and its assessment of the credibility of his evidence, as previously discussed, the Tribunal finds it is not satisfied there is a real chance the parties who the applicant claims would harm him if he returns to India would travel to Nepal to locate and harm the applicant there.  The Tribunal also considered whether as an Indian national in Nepal the applicant faces a real chance of serious or significant harm, and concludes based on the evidence before it, including the circumstances of the applicant and in the absence of country information including a real chance or real risk of harm, that there is not such a chance of harm to the applicant.  Further, the Tribunal considered the impact of the poor economic conditions in Nepal on the applicant.  However, it finds that the applicant is an articulate and well educated person who has the benefit of some work experience.  It does not accept that he would face serious harm such as being denied the capacity to find work and at the very least to subsist in Nepal.

13. Having regard to all the evidence, and to the findings set out in this decision record, the Tribunal finds the applicant does not have a well-founded fear of being persecuted for a Convention reason in Nepal.  Further, for similar reasons and based on the Tribunal’s assessment of the applicant’s particular circumstances and the evidence before it, the Tribunal finds there is not a real risk the applicant will be arbitrarily deprived of his life in Nepal, or that the death penalty will be carried out on him.  Having regard to his claims, the country information, and all the circumstances, the Tribunal also finds there is not a real risk the applicant will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is removed to Nepal.  The Tribunal therefore, does not find there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm in Nepal.

    Sections 36(5) and (5A) – Refoulement from Nepal

14. The Tribunal has considered the provisions in s.36(5) and s.36(5A) of the Act which excludes the operation of s.36(3) of the Act where a country will return a non-citizen to another country where the non-citizen will be persecuted or face a real risk of significant harm. The Tribunal finds no country information before it to suggest that the government of Nepal returns Indian nationals to India.

15. Further, the Tribunal finds that under the terms of the Treaty, the government of Nepal agreed to grant Indian nationals reciprocal privileges to Nepali citizens in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature. The Tribunal finds that the applicants does not have a well-founded fear that Nepal will return him to India and that s.36(5) and s.36(5A) are not enlivened.

16. For all of the above reasons, the Tribunal finds Australia does not have protection obligations in respect of the applicant by the operation of s.36(3) of the Act.

17. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations.

18. 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

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

Nicola Findson
Member