1501365 (Refugee)

[2016] AATA 4060

1501365 (Refugee) [2016] AATA 4060 (7 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501365

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Gina Towney

DATE:7 July 2016

PLACE OF DECISION:  Sydney

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

Statement made on 07 July 2016 at 4:45pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Nepal, applied for the visa [in] May 2014.   

3. On his original application the applicant claimed the following (in summary);

   ·The applicant joined the Communist Party of Nepal (Unified Marxist-Leninist) in April 2007, and was active at a village level from September 2008. The Maoists asked the applicant to disown his membership and joined them, which he refused, and as a result in January 2009 he was abducted, physically and mentally tortured and held for two days. He was released under strict agreement that he disown his membership of the Communist Party and join the Maoists, and was told he would be killed if he did not comply;

   ·Upon release the applicant did not disown his membership because he was a committed member and continue to support his party secretly; the applicant was fearful to be anywhere in Nepal, so he travelled to Kathmandu and found an agent who could send him overseas;

   ·The applicant entered Australia as a student dependent and was able to leave Nepal and avoid persecution.  The applicant fears he will be tortured and killed upon return for defending his political views, and he does not believe the authorities can protect him because there is a lot of corruption and politically motivated people working in the authorities.

4. The applicant also provided a written statement, dated 5 December 2014 and received by the department [in] January 2015. The statement recorded the following (in summary):

   ·The applicant is married with [a child], he has one [sibling], and comes from a remote area of Nepal.  After completing his education in Nepal in [year] the applicant returned to his village helped his parents with their business where he worked as [an occupation];

   ·In April 2007 the applicant joined the Communist Party of Nepal (Unified Marxist Leninist) because of his political beliefs. The applicant was introduced to the party by his [Relative 1] and has lifelong links of family tradition and political belief. The applicant was a well-known loyal and vocal member, and is from one of the areas most Maoist-affected in Nepal.  Sometime Maoists used to tell the applicant of their programs and wanted him to support them, as his home district is a Maoist stronghold and Maoists policy forced every family to provide a recruit or face a severe fate;

   ·In February 2008 the applicant’s [Relative 1] was killed by the violent Maoists after he led a number of demonstrations against them. The applicant reported the incident to the police, the village authority and then the District Police, however no investigation was conducted and the applicant was ignored. The applicant became a an active member of the Communist Party in September 2008;

   ·The applicant was very involved in local politics.  This included organising activities, removing anti-social activities and allowing people to live a good life.  The applicant implemented an initiative by going to the people in the community and solving their problems.  The applicant also filed a case against Maoist criminals who were not arrested and convicted. The applicant was able to do this because his father’s business was successful enough to support him, he was responsible for party’s activities under the direction of the local president;

   ·In January 2009 the applicant was abducted from his house around midnight by a group of 8 to 10 Maoists.  He was detained and physically and mentally tortured, including having the soles of his feet beaten, being forced to stand on one leg. The applicant believed he was going to be killed, but in the end he entered an agreement to disown his membership of the Nepalese Communist Party and support the Maoists. The applicant signed a letter and was released. The applicant was warned what would happen to him if he continued to participate in activities of the Nepal Commons Party;

   ·Upon being released the applicant was almost unable to walk, there was no medical facility in his village that he went to the district headquarter for treatment, but was unable to tell the treating doctor what had happened. The applicant was given for medicines and released;

   ·The applicant cannot tolerate injustice, illegal activities or behaviour. He was vocal in condemning the Maoists and held a rally against them. As a result he was detained by the Maoists for one day, badly beaten whilst in detention, and released on condition that he would not seek justice for his late [Relative 1];

   ·The whole country was affected by the Maoists’ win the elections in 2008, and conditions in his district and every other district changed. After the Maoists came to power they released a number of Maoist prisoners, including Maoists that the applicant had caused to be arrested. The applicant’s fear increased to such a point that he found he couldn’t remain in Nepal, and he left his village and travelled to Kathmandu to seek shelter in a relative’s house, and he stayed there while he made arrangements to leave. In Kathmandu the applicant was very careful, it was like living under house arrest, and he was very careful with his movements;

   ·The applicant was able to leave Nepal on a Student visa dependent on a false marriage, and did so to avoid persecution by the Maoists. The applicant’s father financially supported him and he came to Australia [in] May 2009;

   ·After the applicant entered Australia his mother became seriously ill that he was compelled to return to Nepal, despite the great risk. He therefore returned to Nepal [in] November 2010 and visited his mother at a relative’s house in Kathmandu. The applicant did not travel outside the house and stayed with his mother until her health improved.  Despite his situation the Maoists appeared unaware of his return, but the threat to the applicant was so great that he couldn’t remain in Nepal;

   ·The applicant believed he would be killed by the people he had arrested, and he was not safe in Nepal because the Maoists have a nationwide network and would find him whenever he resided. In addition the applicant will not be able to practice his political beliefs without violence, and fear that the four people he had arrested, as they have now been released from prison. The applicant was involved in advocating against crime, promoting policy and attending to the needs of members of the community in his home district;

   ·The applicant’s personal political profile at the local level has brought him to the adverse attention of his political enemies within the Maoists, and they are very resentful of his actions. The applicant living in Australia would confirm to the Maoists and other criminals that he has earned a lot of money and they were trying to kidnap him for financial gain;

   ·Given the lack of government control and lack of constitution and order throughout the nation, the applicant would not receive protection from the authorities, and he genuinely fears persecution from the Maoists due to their intolerance of his political activities. The Maoists violence is uncontrollable, and the applicant has suffered depression and being constantly worried about his life and future.

5. [In] January 2015 the delegate from the department refused to grant the visa. The applicant appealed to the Tribunal and provided a copy of the departmental decision.  In the decision the delegate found the following (in summary): that the applicant had the right to enter and reside in India, under the Treaty of Peace and Friendship, and that the applicant had not taken all possible steps to exercise his right to enter and reside in India, and as a result Australia did not have protection obligations.

6. The delegate did consider the applicant’s submissions that he would be discriminated against in India, India was not safe for him, he will continue to be politically active in India and as such it will attract attention, and there are Maoists in India. However the delegate found that, as the applicant is male, he is not a member of the Communist Party of Nepal – Maoists, and has no criminal history, they were satisfied that the applicant did not have a well-founded fear of persecution, or that there were substantial reasons for believing that the applicant is a real risk of suffering significant harm, in India. The delegate also referred to Country of Origin Information, and found that India does not refoule refugees to their home country where they have a well-founded fear of persecution or a real risk of suffering significant harm. The delegate also found the applicant did not have any personal characteristics that would increase the likelihood of him being deported.

7. The applicant was initially invited to attend a hearing on 14 June 2016, however on 10 June 2016 the applicant requested a postponement on the basis that his [grandfather] had died and he was unable to attend any event or social function within 13 days of the date of his death. The Tribunal then granted a postponement, and the hearing was set for 7 July 2016.

8. The applicant appeared before the Tribunal on 7 July 2016 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. Below the Tribunal has not recorded a transcript of the hearing, and it only recorded issues it found most relevant to the outcome. The hearing tape is available.

9. During the hearing the applicant gave evidence that he entered his first and genuine marriage in 2064 (using the Nepali calendar), being nine years ago (2007). The applicant said he then entered a second fraudulent marriage for the purpose of entering Australia. The applicant said he did not live with his second wife when he entered Australia, and after her subsequent Student Visa, and the applicant’s dependent visa, were refused, the applicant applied for and was granted a divorce in Australia.

10. The applicant said he is still married his first wife, and he has a [child of specified age]. The applicant said his wife has lived with his parents since their marriage, and they continue to reside in the village the applicant was raised in, which has [number] households, although they are in a different house to that in which the applicant grew up. The applicant said his wife and parents are financially supported by the [business] that is owned and run by his parents, and that it was not expensive for them to live where they were.

11. In terms of his own living conditions, the applicant said he currently works [number] hours per week as [an occupation] and earns between [wage range] per week. The applicant said he first obtained paid employment two months after entering Australia, and has financially supported himself through the duration of his time here. The applicant said he occasionally sent money to his family, but had not sent any in the last three months.

12. The Tribunal raised that the applicant’s evidence regarding his political activities in Nepal were very broad, and it asked for specific examples of what he actually did (from approximately 22 minutes on the hearing tape). The applicant said he published and advertised the party, he tried to attract people to the party and he organise protests. The applicant said the Maoists would give the youth false information and he would provide further information to them to show it was wrong and bring them back to his party. Asked if he did anything else, and invited to be more specific, the applicant said he became [a position holder] in 2065 (approximately 2008). Asked what this entailed, the applicant said he followed the instructions of the District President and did whatever he was told. The applicant said he would also go into the village and talk about the party.

13. The Tribunal asked the applicant about any political activities he had undertaken during his time in Australia. The applicant said he was involved in a sister organisation called [Organisation 1]. Asked what his involvement was, the applicant said he was a normal member. Asked what this involved, the applicant said they get people together, including high-level speakers from Nepal. Asked how he helped the party, the applicant said he organised donations.

14. Asked when he last attended an activity of the [Organisation 1] party, the applicant said approximately six months prior.  Questioned further, the applicant said he attended a small meeting at [a venue] in [Suburb 1], with other members. Asked what they did there, the applicant said they discussed planning a party. Asked when the party was, the applicant said it was planned for [a date in] August 2016. Asked where it would be held, the applicant said they had only had a general discussion and were still thinking about things.

15. The Tribunal raised that the applicant’s minimal political activity in Australia did not reflect his claimed political views, as in his statement he had claimed that he could not keep quiet when he saw someone or something was wrong, and he could not tolerate injustice, or any illegal activity or behaviour. The applicant also previously submitted that he was vocal would be unable to remain quiet. In response the applicant said that he had been quite depressed because his grandfather had recently passed away. The applicant also said people in Australia were very busy and it was difficult to get together, and they only did so ‘once in a blue moon’, but most people in Nepal were unemployed so it was easy to get everyone involved.

16. During the hearing the Tribunal raised that the applicant submitted his [Relative 1] had been killed, and it asked whether the police took any action against the perpetrators. The applicant said they did not, and although the authorities gave their word to do something they did not do anything. The Tribunal directly asked the applicant whether anyone had been prosecuted in relation to his [Relative 1]’s death, and the applicant said no they had not, and the Maoists had killed his [Relative 1] (approximately 37 mins on hearing tape).

17. The applicant affirmed his written evidence, stating that he had been detained on two separate occasions by the Maoists. On the first occasion, being 2065, the applicant was taken from his house by [number] people, he was blindfolded, and kept overnight. The applicant was told not to engage in any further activities with his party or he would be tortured. The applicant said on the second occasion he was again detained.  The applicant said he reported this to the police, and then returned his own village to seek justice for his [Relative 1].

18. During the hearing the Tribunal asked the applicant about his return to Nepal in 2010/2011. The applicant said he returned to Nepal, despite the risk, because his mother was gravely ill. The applicant said he and his family stayed in Kathmandu, and no one outside the family knew that he was visiting.  The applicant confirmed that he used his genuine passport and entered and exited Nepal using legal channels.

19. The Tribunal raised that the delay between the applicant entering Australia and applying for his Protection visa, being a period of approximately five years, reflected poorly on the genuineness of the applicant’s claims. The applicant responded by saying he didn’t have anybody or any idea (of how to pursue a protection visa). Questioned further, the applicant said he did see a consultant/agent regarding his Student Visa and the subsequent appeal. The Tribunal raised that this indicated the applicant did have access to advice. The Tribunal also raised that the fact the applicant obtained employment soon after entering Australia indicated that this was his motivation, rather than pursuing protection. The applicant reiterated that he did not have anyone to help him.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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.

21. 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).

22. 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.

23. 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’).

24. 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.

25. The issue in this case is whether the applicant is owed protection by the Australian authorities. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

26. The applicant made claims that his [Relative 1] was killed by members of the Maoist party in 2008, and that this led to the applicant increasing his activities and pursuing justice for his [Relative 1]. The Tribunal has serious concerns regarding the credibility of this evidence, and these are outlined below.

1. Firstly, the applicant omitted to mention his [Relative 1] in his original Protection visa application lodged with the department [in] May 2014, including in outlining his claims.  In making this finding the Tribunal has considered the applicant’s submissions that he would be able to provide a Death Certificate, however the issue it is concerned about is the omission by the applicant to mention his [Relative 1] during his initial application.

2. Secondly, in both written and oral evidence the applicant initially said that although he had reported his [Relative 1]’s death to the authorities, being both the local and District police, no action was taken against the perpetrators. This included during the hearing when the Tribunal directly after the applicant if anyone had been prosecuted in relation to his [Relative 1]’s death, and the applicant said they had not.

3. Contradictory to this the applicant later gave evidence that people that he had caused to be arrested due to his [Relative 1]’s death were released once the Maoist party took power.  When the Tribunal raised the apparent contradiction with the applicant, he then changed his evidence and said that he may not have understood the question, and people were not initially arrested but where later held for five or six months. The Tribunal finds this evidence lacked credibility in light of the applicant’s written and earlier oral claims.

4. The applicant also submitted that he was politically active within the Communist Party, Unified Marxist-Leninists, however the Tribunal finds these claims have not been established.

5. One reason for this includes the broad nature in which the applicant described his activities, including recording that ‘he sought advice from the President of the District Committee and organised activities’, ‘removed antisocial activities to allow people a good life’, ‘chose social development activities’, ‘served the people and the party’, and ‘implemented an initiative by going to the people in the community to solve their problems’.

6. During the hearing the Tribunal raised that the applicant’s evidence regarding his involvement with the political party was very broad, and she asked for him to give more specific evidence regarding what he actually did.  In response the applicant reiterated evidence from his written submission, and added only claims that were again very broad and lacked any specifics. This included saying that he published and advertised party material, he organised protests, and he spoke to local youth.

7. A second reason is the lack of credible evidence regarding the applicant’s political involvement while in Australia, juxtaposed to the applicant’s submissions that he was someone who could not keep quiet when he sees something is wrong, and could not tolerate injustice, or any illegal activities or behaviour. That is, when asked about his activities in Australia, the applicant said he was involved with a sister organisation called [Organisation 1], but when asked for further information he gave only broad and vague answers. That is, when asked what he did with the group, the applicant said they organised get-togethers and sometimes speakers from Nepal, and they organised donations in dinner parties. Asked when he was last involved with an activity in the group, the applicant said six months prior. Questioned further, the applicant said he met other members at [a venue] in [Suburb 1] and they discussed planning a party. Asked when the party was planned for, the applicant said it was more of a broad plan and the party would be on [a date in] August 2016. Asked where the party would be held, the applicant said they had only had a general discussion was still thinking about it. The Tribunal finds this evidence lacks credibility, and was so vague and lacked detail that could reasonably be expected of someone who was politically active.

8. The applicant also claimed that he was of interest to the Maoists, and that his life would be at risk if he re-entered Nepal. After considering the evidence overall, the Tribunal again finds that the applicant has not established this claim, and his evidence lacks credibility. The reasons for this are outlined below.

9. Firstly, despite claiming that his [Relative 1] was killed by Maoists and that he himself had been detained and had his life threatened on two separate occasions by Maoists, the applicant re-entered Nepal for a period of two months from [November] 2010 until [January] 2011. During the hearing the applicant confirmed that he used his genuine passport and entered and exited via legal channels. The Tribunal has taken into account the applicant’s evidence that his mother was gravely ill and he needed to return to see her, and that he spent all of his time in Kathmandu and did not tell anyone apart from his family that he had returned. However after considering the submissions the Tribunal does not find the evidence credible in light of the applicant’s overall claims regarding the death of his [Relative 1] and the threats made against his own life.

10. Secondly, according to the applicant’s own evidence, his parents, his genuine spouse, and his [age]-year-old [child] continue to live in the same village that the applicant was raised in, and also operate a [business] there. The Tribunal does not accept that the applicant’s spouse, child and parents would continue to live in a village, and to operate a [business], where the applicant was under threat, and where the [Relative 1] had been killed by Maoists.

11. In making this finding the Tribunal has taken into account the applicant’s evidence that his parents did not have money to move, and although he was working at the present time earning [wage range] per week, this had only been for a limited period. However, the Tribunal also took account of the applicant’s evidence given earlier in the hearing, being that it was not expensive to live in Nepal, and his wife and child were fully supported by the applicant’s parents and their work at the [business]. Considering the evidence overall the Tribunal finds that the applicant was not and is not of interest to the local Maoists or anyone else.

12. Another issue of relevance to the Tribunal is that the applicant entered Australia on the basis of a false marriage, despite already being married, and that he remained in Australia on this basis until his spouse’s Student Visa was refused. Only then did the applicant attempt to pursue his own visa. The Tribunal finds this demonstrates that the applicant is willing to provide false and misleading information to the Australian authorities if it will lead to the desired outcome. In making this finding the Tribunal has taken into account the applicant’s evidence that he was fleeing for his life and that he had been threatened by Maoists, but finds his evidence lacks credibility for the reasons outlined above.

13. The Tribunal has also considered the delay in the applicant applying for the Protection Visa, as the applicant initially entered Australia [in] May 2009 and did not apply for the visa until [in] May 2014, almost 5 years later. The Tribunal finds this reflects poorly on the genuineness of the applicant’s claims.  Overall, the Tribunal rejects the applicant’s claims in their entirety.   That is, the Tribunal does not accept that the applicant was politically active in Nepal and/or what was of interest to the Maoists or anyone else; and the Tribunal does not accept that the applicant has a [Relative 1] who was killed by the Maoists. 

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

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

16. 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

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

    Gina Towney
    Member