1501367 (Refugee)

[2016] AATA 4009

1501367 (Refugee) [2016] AATA 4009 (16 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501367

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Andrew Mullin

DATE:16 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 16 June 2016 at 12:10pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. Information in the delegate’s decision record (provided to the Tribunal by the Applicant) indicates that the Applicant, who claims to be a citizen of Nepal, arrived in Australia [in] June 2010 travelling on the passport of her [Relative A] who had been granted a [temporary] dependent visa [in]  March 2009.  The passport was falsified by the substitution of her own photograph.  [In] August 2010 she lodged an application for a protection visa, presenting a different passport in her own name.  [In] April 2011 a delegate of the Minister refused to grant the visa and on 30 September 2011 the decision was affirmed by the Refugee Review Tribunal.  [In] May 2014 the Applicant lodged a second application for a protection visa, an application which was accepted by the delegate as valid as a result of the Federal Magistrates Court’s decision in SZGIZ v Minister for Immigration and Citizenship [2013] FMCA 215. The delegate refused to grant the visa [in] January 2015 and on 30 January 2015 the Applicant applied to the Tribunal for review of the delegate’s decision.

   RELEVANT LAW

   Validity of the application and the Tribunal’s jurisdiction

3. Section 48A imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused.  However, in SZGIZ v MIAC (2013) 212 FCR 235, the Full Federal Court held that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a Protection visa which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a Protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a).

4. In light of these authorities, the Tribunal has considered the Applicant’s claims only in relation to s.36(2)(aa).

   Complementary protection criterion

5. 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’).

6. ‘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.

7. 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.

8. Given the above, the issue in this case is whether 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 she will suffer significant harm.

   Section 499 Ministerial Direction

9. 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.

   CLAIMS AND EVIDENCE

10. The Tribunal has before it the Departmental and Tribunal files relating to the Applicant and the material referred to in the delegate’s decision together with other material from a range of sources.

11. In her first protection visa application the Applicant claimed to fear harm in Nepal at the hands of Maoists, who threatened her life and liberty because she and her family strongly supported the Rastriya Prajatantra Party (RPP)  They demanded money from her and, when she was finally unable to pay, threatened to kill her.  She and her husband fled to Kathmandu in May 2010 but she was advised within a month that the Maoists were planning to kill her and she fled to Australia.

12. In support of these claims the Applicant submitted documents said to be a receipt and a letter of demand issued by the Communist Party of Nepal, together with a membership card and supporting letter said to have been issued by the Rastriya Prajatantra Party.

13. The Applicant attended a hearing before the Refugee Review Tribunal, differently constituted, on 17 August 2011.  In its decision record of 30 September 2011 the Tribunal found her not to be a witness of truth.  It accepted that she is a married woman from Nepal and that she operated a [business] in Myagdi District.  It did not accept there was any other credible evidence regarding her life in Nepal or, in particular, the reasons she left Nepal and did not want to return there.  It did not accept there was any credible evidence that Maoists or anyone else in Nepal, including the authorities, had any adverse interest in her.  Nor was it satisfied she faced a real chance of persecution for a Convention reason if she returned to Nepal.

14. In her current protection visa application of [May] 2014 the Applicant claims:

    ·She was born in Myagdi, Nepal, in [year].  She gives her ethnicity as [deleted] and her religion as Buddhism.  She received a total of [number] years of formal education in Nepal, ending in [year], and was self-employed from 1996 to April 2010.  She was married in 1996 and lists [her] children as living in Nepal.

    ·She could not remain in Nepal safely due to Maoist threats against her life and freedom.  She could not pay their extortion demands and was targeted for harm.  She hates the Maoists and fears harm from them on return to Nepal, for reason of her political opinion.

15. The Applicant added to these claims in a statement dated [in] November 2014 which she submitted to the Department at the time of her protection visa interview [in] December 2014, as follows:

    ·She was mentally disturbed when told by relatives that her husband had become an alcoholic and gambler since she left Nepal.  He began asking her for money almost every week but she refused to comply.  As a result, he threatened to harm their children.  She asked him to drink responsibly and give up gambling but he would not do so and threatened her instead. 

    ·She is afraid that if she returns to Nepal she will be tortured and killed by her husband or other criminals. 

    ·She is also afraid that she will be persecuted because of her membership of the particular social group consisting of single Nepalese women.  Having stayed in Australia without a family member she will be considered to be a woman of bad character, both by her family members and the community.  She will be discriminated against and expelled from the family.  Returning to Nepal, where women are treated very unfairly, means destroying her life and liberty.

    ·She cannot escape by going to India because she is not safe there as a woman.  Women and children are trafficked and sold across the Nepal-India border.  She would never think of going there.

16. In her protection visa interview the Applicant said, in summary:

    ·She had owned a [business] in rented premises [in] [Town 1], Myagdi District.  She lived at the rear of the shop.

    ·Her parents sold their house in the village and moved to Kathmandu in about 2010.  They have a house and run a small business there.  Her [Relative A and family] currently live in the house together with her children.  She confirmed the claim in her original protection visa application that she, her husband and children moved to Kathmandu because of problems with Maoists, who were extorting money from her.  She had paid them at first but later refused when they demanded a huge amount.  She stayed in Kathmandu with her parents for about a month before leaving for Australia and was supported by her parents and [siblings].

    ·Asked why the Maoists were asking her for money she said she and her parents were involved with the Rastriya Prajatantra Party (RPP) and the Maoists were demanding money from everyone.  She did not know if the Maoists were demanding money from other shopkeepers.  She had held no position with the RPP but supported it because her parents were supporters.  Asked if she had participated in any party activities she said if they had a local program she would attend but she would not go to more distant events.  Asked to name any local leaders of the party in her area she identified [one person].  Asked what had happened to this person she said he was a candidate for the election but did not win.  She had not kept in contact with him.  She no longer knew him well.

    ·Asked why she would not have gone to India with her husband and children had she feared harm from the Maoists in Nepal she said India is not safe for women.  She would have been at risk when she went out to work.

    ·Her relationship with her husband had come under strain because she was unable to send him sufficient amounts of money.  He began drinking and was abusive and threatening to her over the telephone.  They had not communicated for six months and she did not know where he was.  Her children are still staying with her parents but they are not seeing their father.  She feared her husband because he could do anything to her.  He blamed her and had threatened to kill her five or six months previously. 

    ·Asked about her parents she said she is in contact with them.  They are doing well.

    ·She did not believe the authorities or her family would protect her.  In Nepal the police cannot offer protection full-time.  They are corrupt and unable to provide security for the whole population.  Her family knew of her husband’s threats.  They counselled her to remain in Australia and not to return to Nepal.

    ·People would talk about her if she returned to Nepal.  She would be regarded as a bad woman because she had left her children behind, was living in Australia and had a husband who was an alcoholic.  She could not go back to Nepal because this talk would make her sad.

    Second Tribunal hearing

17. In her hearing before me on 28 April 2016, conducted with the assistance of an interpreter in the Nepali and English languages, the Applicant’s evidence was, in summary:

    ·She was aware of the contents of her original protection visa application form and the accompanying statement, together with her statement of 27 November 2014.  Everything stated in these documents was true, as was her evidence at the protection visa interview [in] December 2014.

    ·Asked what she had feared at the time she left Nepal she said she feared the Maoists, because of the political situation.  In addition, her husband had begun to torture her, two months before 27 November 2014, because she had ceased sending him money.  Asked what she had feared the Maoists would do to her she said their cadres would come to her home and ask for food and money.  They also threatened her.  In addition, the army used to come to her home.  Asked if the Maoists came to the houses of other people she said they normally did so, working to a roster.  They would torture her as well because of her RPP membership. 

    ·Asked what she meant by ‘torture’ she said the Maoists wanted her to join them.  They did not physically torture her but asked for money.  She gave them NPR [amount] but they asked for more and threatened her with harm if she did not pay.  Asked why the Maoists had not threatened her husband as well she said they tortured all her family, including him.  This was why they moved to Kathmandu. 

    ·Asked what she feared would happen to her if she returned to Nepal now she said she came to Australia originally because of political reasons.  However her husband later started to torture her.  Asked again she said she had no contact with her husband and she was like a single mother.  For two or three years she had not been sending him money and he telephoned her continually on this point.  He also asked why she was not contacting him and accused her of having a partner here.  He threatened to kill her and their children if she returned to Nepal.

    ·Asked if she feared harm in Nepal for any other reason she said she had previously feared harm for political reasons but now this was alright.  It was only her husband that she feared now.

    ·Asked about her employment in Nepal she said that after her marriage in 1996 she and her husband owned a [business] in rented premises in the small town of [Town 1].  Her husband had no other occupation.

    ·She confirmed that her parents and siblings moved to Kathmandu.  This was, she thought, before 2010.  They subsequently purchased a small house in [Town 2], Kathmandu.  Her parents and children are currently living in this house, together with her brother and his family.  Their source of income derived from her brother’s employment.  Her father is unemployed.  Asked about her own departure from [Town 1] she confirmed that in May 2010 she, her husband and children moved in with her parents in their house in [Town 2].

    ·She said she did not know her husband’s present whereabouts.  She had last spoken to him in about September or October 2014 when they chatted.  Asked if anyone else in her family had had any contact with him she said that when she spoke to her parents they told her he had come to the house to threaten her children and warn he would kill her if she returned to Nepal.  Asked when her parents told her this she said it was in about September or October 2014.

    ·She agreed with a summary I made of the claims advanced in her first protection visa application relating to a fear of harm from Maoists as a member and supporter of the RPP.  I outlined discrepancies which the Tribunal, with a different Member, had previously identified in her claims and in documents she had submitted which were said to have come from Nepal –over the timing of the Maoists’ extortion demand for NPR [amount]; her denial that she was ever detained and kidnapped by Maoists; her denial that she had donated money to them in 2005; her failure to mention previous demand letters from the Maoists, despite having submitted a letter said to be from them in June 2010 which mentioned letters in March and April 2010; and in her responses to questions about her [Relative B]’s political activities.  I put to her that I had considered these matters and it appeared that they could cast doubt on the truth of her claims to have been a supporter or member of the RPP or to have been subjected to demands for money by Maoists because of an RPP connection.  Invited to comment she said everything she had mentioned was the truth – what could she do if I did not believe her?

    ·I put to her it seemed difficult to understand why, having heard that Maoists had located her in Kathmandu and were planning to kill her, she would flee by herself to Australia while leaving her husband and [children] at their mercy.  She said it was a kind of compulsion – she had no job or occupation and she was presented with an opportunity to come to Australia by using her [Relative A]’s passport.  There was no other opportunity available.  I asked again if she meant she had left her husband and children behind in the belief that the Maoists could kill them.  She repeated that she had no job opportunity in Nepal and had lived unlawfully in Australia for a few years in order to support her husband and children.  I put to her that her conduct in leaving her husband and children behind could cast doubt on the truth of her claim that she feared Maoists would harm them.  She said the family could have gone to India but they would not have been able to survive there without a job.  I suggested that if she and her family had genuinely feared being killed the question of their employment status in India would have been a secondary matter and would not have prevented them leaving.  She said India is not safe and there is trafficking of women in border areas.  I put to her that she would not have been a single woman but, instead, a member of a family unit.  She repeated that it was not safe in India.

    ·I put to her that these inconsistencies could indicate that no weight should be placed on the documents she had submitted in support of her claims to fear harm from Maoists.  I noted in this regard that information before the Tribunal indicates false documents are readily available in Nepal.  She said high-level people can make false documents but this did not apply to her.  Whatever she had claimed was true and the documents she had provided were genuine.

    ·I noted that in her second protection visa application, lodged [in] May 2014, she had reiterated her claim to fear harm from Maoists if she returned to Nepal.  It was not until her statement of 27 November 2014 that she advanced the further claim that her husband was an alcoholic and gambler who had threatened to kill her and their children because she was not sending him enough money.  I put to her that the timing of emergence of these new claims, just days before she was to attend her protection visa interview, could suggest that after being unsuccessful when her claims to fear harm from Maoists were disbelieved she had invented additional claims based on a fear of harm from her husband.  She said that her fear of harm from Maoists set out in her first protection visa application was real and she had simply maintained these claims in her second protection visa application.  She had believed at first that she could resolve the problem with her husband and it was not until later that she realised she could claim protection on the basis of the threats he was making to her.  He had threatened in the past, after she stopped sending him money, but this was no more than a simple dispute between husband and wife and did not see it as menacing.  In September or October 2014 he began to threaten her at an increasing rate and she became fearful of him. 

    ·Asked what steps she had taken when her husband threatened to kill her and her children she said she lodged her protection visa application.  Asked if she had told her parents about the threats she said she did not mention it – they already knew her husband would do these things to her.  Asked if her parents went to the police she said they did not – what could the police do?  Even if he was arrested today he would be released tomorrow.  Asked why the police would release him she said Nepalese law is deficient and the police can be bribed.  Asked if she meant she had done nothing in the face of telephone threats from her husband to kill her and her [children] she agreed this was the case.  I put to her I found it difficult to believe she would simply ignore a threat against the lives her children.  She asked what she could do – she was overseas and the police would not act.  I suggested that an obvious precaution would be to warn her parents and tell them to guard her children, including by preventing them from going out alone.  She said this was simple and she did this kind of thing all the time – there was no need to mention it.  It was obvious that her parents were looking after her children.  I put to her that if she had received a specific death threat from her husband she would have made a special point of telephoning her parents immediately to warn of the danger to her children.  She said she had mentioned all these things in her conversation with her parents and always told them to protect and guard her children and not let them out alone, for fear of her husband.

    ·Asked in what other way her parents protected her children from her husband she said it was almost impossible to employ a guard but they escorted the children to and from school and did not allow them to go outside without an escort.  Asked what else they did she said they kept an eye on them in case her husband tried to harm them.  Asked if her parents talked to anyone else about the problem she said they did not have many friends and the only authorities they could approach were the police.  They had already gone to the police but they did nothing.  Asked to confirm that her parents had, in fact, complained to the police she said they did not make a report but had a ‘chat’ with them, mentioning that her husband might chase and kill the children.  They took the advice offered by the police.

    ·I suggested that if she had received a threat from her husband to kill her children she would have asked her parents to warn the school that the children were in danger of death.  She said her parents may have done this but she had not asked them about it – she had her own tensions to deal with.  To the observation that she appeared to have been changing her evidence during the course of the hearing when I brought to her attention issues such as this she said she had not realised she should mention all these matters at the beginning of the hearing.

    ·I asked how she knew her husband kept threatening her and wanted to harm her if she had not spoken to him for two years and he had last threatened her family two years ago.  She said that even though she did not have contact with him she spoke to her parents and they explained everything he was going to do to her if she returned.  She added that maybe he visited their home and told them this.  She agreed this would have been in September 2014 and said she spoke to her family and her children.

    ·Noting her claim to be at fear of risk from criminals and members of a society generally because she was a single woman and would be regarded as someone who was morally bad, I put to her that if I were to conclude her claims regarding her husband were not true this could lead me to doubt her claim that if she were to return to Nepal it would be as a divorced or single woman.  This would lead me to disbelieve her claim to be at risk of significant harm for this reason.  She said her husband is continually threatening her and he could do anything to her if she returned.  Asked about her claim of harm from other people she said they could spread rumours and accuse her of being of bad character.  I noted that if there were such rumours they would be unfortunate and unwelcome but this did not necessarily mean they would rise to the level of significant harm which would oblige Australia to grant her protection.  She said she was sure Nepal was not safe for her and she would die there - rumours were one thing but she feared her husband would kill her.  Asked if she could live with her family if she returned to Kathmandu she asked how she could do so – it was not safe there. 

    ·I put to her that the information which was before the Tribunal could indicate that she was not at any risk of harm from Maoists, that her claims about fearing harm from her husband were not true and that she would not be at risk as a single or divorced woman if she returned to Nepal.  Invited to comment she said she relied completely on the Tribunal to give her justice.

    ·Noting the claim in her most recent statement that she was mentally disturbed as a result of receiving threats from her husband I asked if she had consulted specialists such as psychologists or psychologists for this problem.  She said she had not done so, but she was suffering tension which sometimes made her forget things.  Asked if she was working in Australia she said she was [employed].

    ·Asked if there was anything she wished to add she said the main thing was that she needed justice.  She was certain that she could not return to Nepal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

1. On the basis of the photocopied pages of her passport which she submitted at the hearing I accept that the Applicant is a citizen of Nepal and that her identity is as she claims it to be.

2. The Applicant claims to fear harm in Nepal from her husband, an alcoholic and gambler who has threatened to kill her and their children, and from criminals and others who would regard her as a single woman and a person of bad character.

3. In the present case I have concerns about the credibility of the Applicant’s claims to fear harm in Nepal, for the following reasons:

   Harm from Maoists

4. First, having reviewed the audio recording of the Applicant’s previous hearing before the Tribunal, on 17 August 2011, I consider there are inconsistencies in her account which raise doubts about the credibility of her claims to fear harm from Maoists. 

   ·She provided inconsistent evidence as to when it was that Maoists had come to her house and demanded NPR [amount].  She said this event occurred in 2008, following the elections in that year.  When it was pointed out that this was inconsistent with her evidence that she and her family fled to Kathmandu a week later after failing to raise the amount demanded, and that she fled Nepal for Australia after a further month, in July 2010, she maintained that the claim was correct.  She only agreed that the incident had in fact occurred in 2010 when it was pointed out that this was the date mentioned in her protection visa application statement.

   ·At the first Tribunal hearing she denied that she had ever been kidnapped and detained by Maoists.  When she was asked why this claim was inconsistent with the terms of a letter she had submitted from [the] RPP district work committee in Myagdi her only explanation was that it was an error in the document.

   ·She denied at the first Tribunal hearing that she had donated money to Maoists in 2005, a claims which was inconsistent with a receipt she had submitted which was said to have been issued by the Maoists for the amount of NPR [amount] in May of that year  Her explanation for the discrepancy was that the Maoists may have made a mistake in preparing the receipt in English and Nepali.

   ·She was asked at the first Tribunal hearing why she had stated she was given only one letter of demand by the Maoists when they came to her home [in] May 2010 when this was inconsistent with a letter of demand dated [June] 2010 she had submitted which mentioned previous letters having been given to her in March and April 2010.  She suggested only that when the Maoists came to the house they left a letter and a receipt showing the amount she and her husband had to pay.

   ·At the first Tribunal hearing it was put to her that her responses to questions about her [Relative B]’s political activities had been quite vague, suggesting only that he had some leadership-like position to do with [details deleted] and that it was not a big position.  This account was inconsistent with the account of her [Relative B] offered in her protection visa application statement in which she described him as having exercised leadership over [number]% of Myagdi, having been personally selected by the King for these [responsibilities].  She suggested her ability to remember or clearly articulate her claims was not as good at the hearing as it had been when she prepared her application.

5. Second, I have difficulty in accepting that if she genuinely feared Maoists had located her in Kathmandu and intended to kill her and her family, she would abandon her husband and children to this clear danger and leave for Australia.  When this was put to her at the hearing before me she explained that she had acted under a ‘compulsion’ as she had no economic prospects in Kathmandu and an opportunity for travel arose because her [Relative A] had a passport (with, presumably, a still-valid Australian visa)  As to why she and her husband and children would not have sought safety in India she said only that they had no job prospects there, that there was trafficking in women in the border areas and that India was not safe.

6. I note that at the hearing before me the Applicant appeared to abandon her claim to be at risk of harm from Maoists if she were now to return to Nepal.  I have nevertheless considered all the claims she has made on this issue - in her first protection visa application, the hearing of the Tribunal in August 2011, her second protection visa application, her statement of 27 November 2014 and the hearing before me.  Having done so I am unable to be satisfied as to the credibility of her account of her experiences in this area.  In particular, I am not satisfied that she was a member or supporter of the RPP.  I am not satisfied that she was threatened by Maoists for such a reason or that they extorted money from her.  While I am prepared to accept that she and her family may have moved to Kathmandu I am not satisfied that their reason for doing so was fear of harm from Maoists.  Nor am I satisfied that the Applicant was motivated to leave Nepal for Australia by news that Maoists had located her in Kathmandu and were planning to kill her.  Given these conclusions about a set of claims which were, originally, central to the Applicant’s case for protection in Australia I am unable to be satisfied as to her overall reliability as a witness.

   Harm from husband

7. I have additional doubts as to the credibility of the explanation the Applicant has offered for the shift in her claims about the harm she fears in Nepal.  In her first and second protection visa applications the source of this harm is said to be Maoists, who threatened and extorted money from her because of her political activities as a member of the RPP and who intended to kill her.  These claims were maintained up to a point only a few days before she was to attend a Departmental interview, [in] December 2014, when she advanced a quite new set of claims, to the effect that she feared harm in Nepal from her husband, an alcoholic and gambler who had threatened to kill her and her children because she had ceased sending him money.  When it was put to her at the hearing before me that the timing of her new claims could appear suspicious she suggested that she had experienced a long period of verbal abuse and threats from her husband as a result of her ceasing to send him money but that it was only in the last couple of months that these threats had intensified to the point where she was in fear of him. 

8. Having considered this explanation I find it generally unconvincing.  The Applicant has not identified any particular aspects of her husband’s alleged threatening behaviour which might suddenly have convinced her that he meant to harm her or their children.  Her evidence as to how these threats were conveyed to her family was vague and lacking in any circumstantial detail, despite the dramatic and memorable impact which such threats might reasonably be expected to have had on them and her.

9. These doubts are reinforced by the Applicant’s responses at the hearing when she was asked about her actions on allegedly receiving news of death threats from her husband.  She gave no impression that she had thought about even the most basic steps which might reasonably be expected of a parent in the claimed circumstances – that she would ask her own parents to safeguard her children and not let them go outside alone, warn their school and notify the police - and it was only after considerable prompting that she agreed she had done these things.  I note in this context that her evidence as to whether or not her parents had, in fact, sought police protection on this presumably vital matter changed.  She said at first that they had not gone to the police, who are corrupt and would be unable to detain her husband longer than a day, but she later implied they had done so.  When she was asked to clarify her responses she then suggested her parents had not lodged a formal complaint with the police but instead had had an informal ‘chat’ with them on the subject.

10. Taking these considerations together with my overall concerns about the reliability of the Applicant’s evidence I am not satisfied as to the credibility of her claims concerning her husband.  I am not satisfied that she received threats from him to kill her and their children, that she fears harm of any kind from him or that their marriage has, in fact, broken down.  I consider it likely that these claims were advanced by her, at the last moment before her protection visa interview, when she realized that her previous claim to fear harm from Maoists was likely to be rejected once more and that she would need an alternative basis on which to seek protection.

11. In this context I have also considered the claim advanced in the Applicant’s statement of 27 November 2014 that she was mentally disturbed as a result of the demands and threats she received from her husband.  As I do not accept that she did, in fact, receive demands or threats from him I am not satisfied that any mental difficulties she might suffer could be ascribed to such a cause.  Asked about this claim at the hearing before me she said she had not consulted any specialist, such as a psychologist or a psychiatrist.  There is nothing in the information before the Tribunal to indicate that she has received any other form of treatment and, having had the opportunity to observe her at some length during the hearing, she gave no appearance that her ability to respond to questions or articulate her claims was hindered by any mental or cognitive difficulties.  I am not satisfied that she does, in fact, suffer mental disturbance as she has claimed in her statement.

    Harm as a single woman

12. The Applicant claims to fear harm in Nepal as a single or divorced woman and as a person who would be seen to be of bad character because she lived by herself in Australia.  She suggests she would be discriminated against for these reasons and that her life and liberty would be destroyed.  As noted, however, I am not satisfied that her marriage has broken down and I do not accept that she would be a divorced or single woman if she returned to Nepal.  Nor am I satisfied there is anything in the information before the Tribunal to indicate that she would be seen to be of bad character simply because she had been living in Australia for an extended period while leaving her husband and children in Nepal. 

13. Having considered this area of the Applicant’s claims I am not satisfied she would be at any risk of harm from other members of society because she would be regarded as a single or divorced woman or a person of bad character.

    Summary – complementary protection claims

14. Having considered the Applicant’s claims individually and cumulatively I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of her being removed from Australia to Nepal, there is a real risk she would suffer significant harm in terms of s.36(2)(aa) of the Act, from Maoists, her husband or from other members of society.  Specifically, I am not satisfied  there is a real risk she would be arbitrarily deprived of her life, the death penalty would be imposed on her, she would be subjected to torture, or she would be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment.  She has not raised any other matters which would be relevant to an assessment of Australia’s complementary protection obligations in her case.

15. 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

16. The Tribunal affirms the decision not to grant the Applicant a Protection (Class XA) visa.

    Andrew Mullin

    
    

    Member