1501741 (Refugee)

[2016] AATA 3807

1501741 (Refugee) [2016] AATA 3807 (4 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501741

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Suhad Kamand

DATE:4 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 04 May 2016 at 3:25pm

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. The applicant, a female national of Nepal, first arrived in Australia as the holder of a [temporary] visa as her husband’s dependant [in] January 2009. That visa was valid until [May] 2013. [In] April 2013 she commenced an application for [another temporary] visa as the main applicant. That visa was granted [in] May 2013 and was valid until [May] 2014. [In] May 2014 she lodged the Protection visa application the subject of this review.  The delegate refused to grant the visa [in] January 2015 and the applicant sought this Tribunal’s review of that decision. On the basis of all the evidence before it, and for the cumulative reasons given below, the Tribunal has concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirms the delegate’s decision.

2. Relevant law has been included at Appendix 1.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The applicant was born in [year]. She is a national of Nepal[1] and of no other country.

   [1] A copy of the applicant’s Nepali passport was sighted during her Tribunal appearance.

4. Her express claims and those arising on the evidence are that she fears harm in Nepal for reason of the following, including cumulatively: she is of [Caste 1] but married a [Caste 2 person]; she and her husband separated in Australia; as a party to an inter-caste marriage and a women who has been “discarded” by her husband she has been and will continue to be rejected by her family and Nepali society more generally, and she will be “totally discarded” in Nepal[2].

   [2] Folios 24-27, CLF[number deleted].

   Delegate’s decision

5. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention or under complementary protection. A copy of the delegate’s decision record was provided to the Tribunal by the applicant.

   Issues before the Tribunal

6. The Tribunal must generally assess whether: it is satisfied of the credibility and truth of relevant aspects of the applicant’s claims and evidence; on the evidence before it, it is satisfied that the applicant faces a well-founded fear, based on a real chance, of persecution involving serious harm for a Convention reason, if she returns to Nepal. If the Tribunal is not satisfied that she is owed Australia’s protection under the Refugees Convention, it must then consider whether she is owed complementary protection. That involves an assessment of whether there are substantial grounds for believing that she faces a real risk of significant harm in Nepal for any of the reasons claimed or arising on the evidence.

7. The Tribunal’s assessment is informed by a range of sources including: the Department’s file relating to the applicant which includes her Protection visa application form and documents provided in support, including a statutory declaration sworn [in] May 2014 (2014 Declaration); the audio recording of her Department interview held [in] January 2015, conducted through a Nepali interpreter, which the Tribunal has listened to. The Tribunal’s assessment is also informed by its detailed exploration of the applicant’s claims when she appeared in person before it on 28 April 2016. During that appearance she communicated with the assistance of an interpreter in the Nepali and English languages. When asked at the commencement of her Tribunal appearance whether the applicant has any concerns relating to her capacity to communicate her claims and evidence to the Tribunal, she responded in the negative. An audio recording of the applicant’s Tribunal hearings is available. The Tribunal has had regard to the above as well as to other material available to it from a range of sources, referred to, where relevant, in its considerations below.

   Assessment of the applicant’s claimed circumstances – credibility

8. Having had the opportunity to discuss: the applicant’s claims and evidence with her during her Tribunal appearance; and reflect on that evidence in the context of all the evidence before it, the Tribunal has significant concerns regarding the truth of central aspects of the applicant’s claims and evidence. While the concerns detailed below are not singularly determinative of the credibility of the applicant’s claims overall, cumulatively, they cast such doubt on her reliability as a truthful witness that the Tribunal cannot be and is not satisfied: that central aspects of the applicant’s circumstances in Nepal are as she has claimed; and/or that the applicant is a person in respect of whom Australia has protection obligations.

9. It is not in dispute that the applicant, as detailed in her Protection visa application form: was born in [suburb], Kathmandu, in [year], and has resided at the same address in [suburb] from birth until January 2009; is a national of Nepal; separated from her husband in January 2009; has returned to Nepal on four separate occasions since first entering Australia, including “to visit family”[3] comprising her mother and [siblings], all residing in Nepal (her father is identified as deceased).

   [3] Ibid, folio 22

10. In her 2014 Declaration the applicant states that she entered Australia [in] January 2009 holding a [temporary] visa as a dependent of her then [husband] who she met at [a venue]. She married her husband [in] 2008. This was an inter-caste marriage between herself, a member of [Caste 1], and her husband, who was of [Caste 2]. Being rejected by society for their inter-caste marriage, the applicant and her husband decided to leave Nepal. However, as soon as they arrived in Australia [in] January 2009 her husband told her he wanted to stay with friends and persuaded her to stay with other friends. The applicant told the Tribunal that she did not live with her husband at all in Australia and that when they were collected by a friend from the airport on their arrival in Australia, they were each taken to live in separate locations and they never cohabited again.  Her 2014 Declaration continues that, during this time her husband continually asked her for money as she was working in Australia. She told the Tribunal that she met with her husband on around 3 occasions in their first year in Australia during which times he asked her for money, which she gave him. She said she paid him around $[amount] altogether, however whenever she asked him to do something social like have a meal with her he would refuse. She said he would only meet her near [a venue] and ask her for money.  Her 2014 Declaration continues that, when she was not able to support her husband financially he started to avoid and ignore her, did not contact her, changed his email, phone and residential address details and “discarded” her. The applicant told the Tribunal that by the end of her first year in Australia she no longer had any contact with her husband. She said that, by the time she first returned to Nepal in February 2010, she had already lost contact with her husband and has not had any contact with him since.

11. Her 2014 Declaration continues that she returned to Nepal [in] December 2013 hoping her family would accept her but she found that she was not accepted by her own parents or her in-laws. She tried to contact her husband through his family but his parents “were not keen on providing his contact details to me”.  Because of this rejection it was “almost impossible for me to stay back in Nepal” as she was unsupported by her own family and her in-laws. Accordingly, she returned to Australia [in] February 2014.

12. Her 2014 Declaration states that she cannot return to Nepal due to social rejection for reason of her inter-caste marriage and her subsequent separation from her husband, as “a woman discarded by her husband is treated as a second class citizen and it is almost impossible to settle in the society”.

13. Despite this, the applicant told the Tribunal that she voluntarily returned again to Nepal for a fourth time after that visit, staying around one month during September/October 2015. She told the Tribunal that during that visit she stayed in the same home as her mother and [a number] of her siblings. She said that the purpose of her visit was to see her mother who had suffered a [medical condition] following the 2015 earthquake which destroyed her family’s home in Kathmandu. She said that, at the time of her most recent visit, her mother was living with [her] siblings in a rented home in Kathmandu, which is where the applicant also lived for the four weeks she remained in Nepal.

14. In addition to the above visit, as detailed in the delegate’s decision record, the applicant informed the Department during her interview [in] January 2015 that she returned to Nepal on three prior occasions following her arrival in Australia [in] January 2009 and stayed at her family home with her mother and siblings during those visits which comprised four weeks  in February/March 2010; two months from October to December 2012; and six weeks from December 2013 to February 2014. She is also recorded in that decision record as telling the Department that she visited Nepal because she missed her family and that she had not been harmed or threatened in Nepal during these visits. She gave the same oral evidence during her Tribunal appearance and added that she was also not harmed in any way during her most recent visit to Nepal in 2015, or in the months that she said she lived with her husband after their marriage in August 2008 and before they came to Australia in January 2009, even though, on her oral evidence to the Tribunal, the home they lived in was only [a number] houses away from her parents’ home in Kathmandu.

15. The applicant told the Tribunal that when she lived with her husband in Nepal it was at a the home of a friend. The applicant also said she attended this friend’s wedding during one of      her visits to Nepal.

16. The Tribunal discussed with the applicant the delegate’s concern that she has not produced any evidence to support her claim that her husband was a different caste. The applicant told the Tribunal that she has not been able to find any evidence but that their respective family names reflect their different castes. The Tribunal accepts that the applicant is of [Caste 1] and her former husband was of [Caste 2].

17. The Tribunal noted her evidence that she and her husband did not cohabit together at all in Australia, and asked her about the dynamics of their marriage prior to that point, including whether she considered it a happy marriage. She responded that her husband always looked worried but the marriage was “alright”. When asked how they spent their time together in Nepal she said that he would [do certain work] for payment and she worked in a [shop]. When asked what they did together as a couple she said that sometimes they went to the temple together. When asked how it was for them to go to a temple together as an inter-caste couple she said that she and her husband did not mind but others did. When asked how she knows this she said that people who previously talked to them stopped talking to them.  When asked if she and her husband experienced any other problems in Nepal for their inter-caste marriage she said that there were many parties that her husband was invited to but she was not asked and that people walk by and ignore them. She said she experienced no other problems. When asked what she loved about her husband she responded initially that he was educated. When the Tribunal put to her that there are many educated men in Nepal and asked what set him apart in her eyes that she would break social norms and marry outside her caste she added that she liked his appearance and conversation. She did not elaborate further.

18. Noting the circumstances in which the applicant and her husband met, that they did not cohabit in Australia and the lack of detailed evidence the applicant provided regarding how she and her husband spent their time as a couple, the Tribunal asked whether the marriage was genuine or whether it was arranged for the purpose of the applicant coming to Australia. She responded that it was genuine. When asked why they never lived together in Australia if that was the case she said that she asked her husband many times but he never wanted to. These responses do not overcome the Tribunal’s concerns regarding the genuineness of the marriage.

19. The Tribunal discussed with the applicant that her willingness to return to Nepal on so many occasions since coming to Australia with her husband and since their separation from him does not appear consistent with her claimed fear of mistreatment or rejection by Nepali society and/or her family for reason of both her inter-caste marriage and her separation. The Tribunal explained that this concern is compounded by her evidence that, despite having been a party to an inter-caste marriage and despite being separated from her husband, her family appears to have welcomed her into their home where she has stayed for protracted periods on four occasions between 2010 and 2015. The Tribunal explained that, both her willingness to return to Nepal and remain there for fairly protracted periods, together with her evidence that she lived entirely with her mother and siblings at their family home during those visits, suggests that she remains an integrated member of her family unit with ongoing support from them. Compounding this further, her evidence was that, despite living with her husband only [a number] houses from her family home for some five months om 2008/9, she was never harmed in any way by any member of society or by any member of her family. In response the applicant told the Tribunal that, while she saw all of her [siblings] in Nepal during her last visit as they were also visiting her mother, she had not seen [a few] of them during her prior visits as they did not want to see her because of her inter-caste marriage. She said that, every time she visits her family in Nepal they will not let her cook and they will not eat the food she cooks because they see it as dirty because she married outside her caste. They also do not like her going to the kitchen or being in their house. She said that, when she visited them in 2013 they told her it is better if she does not come back to Nepal and that if she does they would rather die. The Tribunal asked why they allowed her to stay in their home for such long periods and why she retuned again in 2015 if that was the case. She responded that her family would just allow her to stay with them for the duration of her visit and tell her that she can’t stay if she wants to stay for a “long time”. However, as put to the applicant, this is difficult to reconcile with the applicant’s demonstrated willingness to return to Nepal on four occasions, and to live in her family home with her mother and some of her siblings each time for periods of up to two months. In response the applicant asked where else she could stay, adding that she did not have money to pay for a hotel. However, the Tribunal’s concern is not only that the applicant stayed with her family, but also that she remained in that home for extended periods which does not impress the Tribunal as consistent with her claims that her family did not want her there, saw her as dirty and/or has rejected/discarded her.  

20. While the Tribunal is mindful of the applicant’s evidence that she did not have the money to pay for a hotel in Nepal, for the following reasons the Tribunal does not accept that to be true. The Tribunal explored with the applicant what she has been doing in Australia since her arrival in January 2009. She responded that she has been working in [an occupation]. She said that she began working around three months after she arrived in Australia in 2009. She worked at a [workplace] which gave her training in [the occupation]. She then moved to work in [that occupation] in another [workplace] where she has remained since 2014, working four to six days a week.  When asked if she has managed to save any money from her work she said she has saved around $[amount] and she used some of her earnings to cover her costs when she visited Nepal. When asked why she couldn’t use some of her earnings to pay for a hotel in Kathmandu, even for part of her stay if her family was making her feel unwelcome in their home, she offered only that she wants to save her money for the future and does not want to waste it on hotels. While this is understandable, it does not support the applicant’s claims that she was not welcome in her family home.

21. Also difficult to reconcile with her claimed fear of social rejection is her evidence that she was invited to attend, and did attend during one of her visits to Nepal, the wedding of a friend who she said was from the same caste as herself, and married into the same caste. When asked if she was harmed in any way on that occasion she said that the mother of the bride asked her why she came back to Nepal and mentioned that she married outside her caste. However, this does not impress the Tribunal as consistent with the applicant’s evidence that the same friend allowed the applicant and her husband to live at her home for five months after their marriage, nor does it impress the Tribunal as involving or giving rise to a real chance of serious or significant harm as contemplated by the relevant law.

22. The applicant told the Tribunal that she was born in and has always lived in Kathmandu, where her family continues to reside. She said that she worked in a [shop] in Kathmandu for five years before coming to Australia in 2009, and that in Australia, in addition to working in [occupation] for around seven years and receiving [training], she has also studied an English course for six months. When asked to describe her English language skills she said that it is not perfect but she knows enough to be able to work here.  

23. The Tribunal put to the applicant that, if she returns to Nepal it appears that she would live in Kathmandu, where she has always lived and worked and where she has family. The applicant told the Tribunal that she completed grade [level] of school. Her evidence also reveals that her Nepalese education and work experience has been enhanced by formal English language studies in Australia as well as around seven years of work experience in Australia. As explained to the applicant, it appears that, should she return to Nepal and live in Kathmandu she would be able to secure work and support herself in much the same way as she has done in Australia. The applicant agreed that she would live in Kathmandu as there would be nowhere else to live, but said that she does not want to return to Nepal to live. She also said that she agrees that she will be able to find work in Nepal.  When asked to explain what she fears would happen to her if she returns she said that her main worry is that some members of her family and the community won’t talk to her, will talk about her and not include her. She said that this would be mental torture for her which might make her feel like killing herself.

24. The Tribunal explained to the applicant that, while it understands that there is some stigma, ostracism and other difficulties reported for divorced women and parties to inter-caste relationships, such reports including the recent report of the Australian Department of Foreign Affairs and Trade (excerpted in Annexure 2), that information must be considered in the context of what the Tribunal understands of the applicant’s personal and family circumstances, as well as in the context of other reliable country information. As explained to the applicant, other reliable sources indicate that women in different parts of Nepal have different experiences, with rural areas holding more conservative views to both divorce and inter-caste marriage than in urban areas such as Kathmandu.

1. Specifically, the Tribunal put to the applicant that independent sources report that: ill-treatment of inter-caste couples has been illegal in Nepal following the passage of The Caste-based Discrimination and Untouchability Crime Elimination and Punishment Act in May 2011. According to the Asian Human Rights Commission the law “criminalizes opposition to inter-caste marriages, expulsions of people on the basis of their caste and social boycotting”[4]. Other sources report that: violence and/or social ostracism directed at inter-caste couples in Nepal is almost exclusively confined to inter-caste marriage involving a Dalit bride or groom[5]. This does not apply to the applicant as it is not claimed that either she or her ex-husband is Dalit; a 2008 report notes that by then Nepali society “especially in urban areas” was far more tolerant of inter-caste marriage than was previously the case[6]; and another article refers to divorced women in Nepal facing difficulties in remarrying in conservative rural communities,[7] again highlighting the difference in attitudes between rural and urban areas of the country. This is particularly relevant as the applicant’s evidence is that she would reside in Kathmandu should she have to live in Nepal, where the Tribunal accepts attitudes to inter-caste relationships and separation/divorce are less conservative than in rural areas.

   [4] Asian Human Rights Commission 2011, The State of Human Rights in Nepal in 2011, 6 December, p.55

   [5] Adhikari, K. 2012, ‘Families clash over inter-caste marriage’, The Himalayan Times, 7 June accessed 3 August 2012; The Advocacy Project 2009, Inter-caste marriages in Nepal face violence and intimidation, 12 February accessed 20 July 2010; ‘Locals evict inter-caste couple’ 2010, The Himalayan Times, 7 June accessed 15 July 2010; ‘Inter-caste marriage spells trouble’ 2009, Naya News, 15 December accessed 20 July 2010; Office of the High Commissioner for Human Rights 2011, Opening the Door to Equality: Access to Justice for Dalits in Nepal, December, p.4 accessed 14 June 2012; Asian Human Rights Commission 2011, The State of Human Rights in Nepal in 2011, p.52; Center for Human Rights and Global Justice 2005, The Missing Piece of the Puzzle: Caste Discrimination and the Conflict in Nepal, pp.7-8 accessed 17 January 2008

   [6] Kansakar, K. & Ghimire, S. 2008, Intricacies of Inter-Caste Marriage Between Dalits and Non-Dalits in Nepal Couples' Perspectives, September, p.15  

   [7] Laligurans Women Skill Development Centre 2006, Women in Nepal Accessed 16 October 2007

2. While carefully considering the comments of DFAT in its recent Country Information Report on Nepal, other reliable sources report positive changes in Nepal for divorced women, including an increasing number of Nepali women opting for divorce. A 2011 article reported that filing for divorce by women is “no longer confined to urban centres” and cited the example of a District Court which in recent years has seen the number of divorce applications from women “increase precipitously”, with most of these women aged between 15 and 25 years. It reported also that:

   ... the enactment of Nepal’s Family Law, 2006, which ensured equal distribution of assets between men and women following divorce, allowed women more financial room to lead an independent life. Besides these, growing female literacy and entry of more women into the workforce has also had a visible effect on the divorce rate.[8]

   [8] ‘No men, no cry’ 2011, The Kathmandu Post [sic], 10 September, FACTIVA – Accessed 15 May 2012 

3. In 2011 it was reported that the average age for divorce in cases filed with the Kathmandu District Court was between 20 and 35 years. Women had become able to put aside social stigmas relating to the breakdown of marriages, and urbanisation, modernisation and female empowerment have “strengthened women to take bold and radical steps which were once considered taboo in Nepali society”. It noted that greater financial security and job opportunities also contributed to women being able to initiate divorce.[9] An editorial in 2010 reported that the reasons for the rising divorce rate included the 2006 legislative changes that had “allowed women the legal option and the means to leave their spouse”, but additionally stated that “along with the growing acceptance of ‘love marriages’, the social stigma attached to getting divorced is slowly loosening”.[10]

   [9] ‘On divorce’ 2011, Republica, 13 May, FACTIVA – Accessed 15 May 2012 

   [10] ‘It’s complicated’ 2010, The Kathmandu Post, 28 October Accessed 15 May 2012 

4. In 2010 the Asian Development Bank reported that a number of discriminatory provisions in Nepal’s laws had been repealed, entitling women to significant rights. Women were granted the right to their husband’s property after divorce, and the provision of receiving monthly or yearly support in lieu of property. According to the report:

   The Ministry of Women, Children and Social Welfare (MWCSW) is the key ministry for the promotion of gender equality and women’s empowerment... The Department of Women Development under the MWCSW looks after women’s and children’s programs and implements them through its Women Development Offices, which are the key gender focal points in the districts. At all levels – ministry, department, and district – effectiveness is constrained by inadequate resources and weak capacity. The main issue is that the key agencies are not adequately equipped to operate in three different areas (gender equality, children, and social welfare).[11]

   [11] Asian Development Bank 2010, Overview of Gender Equality and Social Inclusion in Nepal, pp.6, 10, 16 accessed 11 February 2011 

5. In 2012 a lawyer for a nongovernmental human rights organisation in Nepal wrote that “Nepal’s law guarantees women who file for divorce the right to compensation from her husband”. However such legally guaranteed compensation is not always sought, and some women support themselves by working.[12]

   [12] Bhusal, K. 2012, Rising awareness of legal rights doubles divorce rates in Nepal’s capital, Trust Law, source: Global Press Institute, 4 May accessed 9 May 2012

6. Based on all the evidence before it, while the Tribunal has doubts about the genuineness of the applicant’s marriage, the Tribunal accepts that she is of [Caste 1] and that she was married to a man of [Caste 2]. The Tribunal also accepts that they have been separated since around [January] 2009 with no evidence that they will reconcile. The Tribunal accepts that the applicant has had no contact with her former husband since late 2009 and that should she return to Nepal she would do so as a woman who married outside her caste and who has separated from her husband. However, based on all the evidence before it, the Tribunal does not accept that the applicant has been rejected by her family. On the contrary, the applicant’s evidence indicates that she remains close to her family, maintains close contact with them and has returned to Nepal to see them on four occasions since she married and separated from her husband, staying for protracted durations in their home and amongst the community she grew up in. without harm, on each occasion, including as recently as September/October 2015. The Tribunal finds that, should the applicant return to Nepal she would continue to receive her family’s support and would continue to be viewed, socially, as a woman who has a strong family network. The Tribunal considers that this perception would minimize any actual or perceived vulnerability the applicant may have as a separated woman who was a party to an inter-caste marriage in Nepal.

7. The Tribunal also finds that the applicant has had many years of work experience both in Australia, an English speaking country, and Nepal, and that her work experience is enhanced by having had formal [occupation] training and completing an English language course in Australia. The Tribunal finds that she will reside in Kathmandu on her return to Nepal, an area she has lived, worked and studied in previously, where she has some familiarity and where she has accessible family networks. The Tribunal finds that, in the context of all these factors and the applicant’s many years of experience living independently in Australia, she will be able to access sound and reputable employment and accommodation in Nepal which would also minimize any actual or perceived vulnerability she may otherwise have as a single, separated woman.

8. While the Tribunal accepts that the applicant faces a real chance of being the subject of gossip and some ostracism, the Tribunal also finds that she has friends and family who support her, and on the basis of all the evidence and considerations above, and in the context of what the Tribunal accepts of the applicant’s circumstances, in particular regarding her family support, education, employment history, travel and general background which demonstrates her to be resourceful and independent, the Tribunal is not satisfied that she faces, from anyone, a real chance of harm rising to the level of serious harm as contemplated by sections 91R(1)(b) and 91R(2) of the Act, or significant harm as contemplated by section 36(2A) of the Act in Nepal in the reasonably foreseeable future for any of the reasons claimed or arising on the evidence.

9. The Tribunal notes that, during her Tribunal appearance on 28 April 2016 the applicant submitted photographs which she said depicted her and her husband at their wedding. She also submitted documents relating to her husband’s application for his first Australian [temporary] visa. While the Tribunal has considered that evidence and accepts that the photos depict the applicant and her husband during their wedding, those documents do not impact on any aspect of the Tribunal’s reasoning or findings.

   Concluding paragraphs

10. 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).

11. 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).

12. 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

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

    Suhad Kamand
    Member

    
    

    ANNEXURE 1

    RELEVANT LAW

14. 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

15. 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).

16. 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.

17. 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.

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

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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

25. 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’).

26. ‘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.

27. 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

28. 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.

    Annexure 2

    DFAT’s Country Information Report, Nepal, 21 April 2016 reports the following regarding divorced women and single mothers in Nepal

    “3.53 According to the Women’s Foundation Nepal (a non-profit NGO that assists women and children victims of domestic violence, abuse and poverty), it is difficult to obtain a divorce in Nepal. Legal changes have made it possible for a woman to divorce her husband and still keep some of the property, and even to gain child custody rights. However, such court cases can be lengthy and expensive and it can take many months to obtain a divorce if the woman makes any kind of property or custody claims. Social stigma against divorced women, who can be seen to have contravened family honour, is high. Social services such as refuges are inadequate and can be difficult to access. In the past, there were barriers to children of divorced women and single mothers obtaining Nepali citizenship given the legal requirement that citizenship be attested to by fathers. Under Part 2 of the 2015 Constitution, these issues have been resolved and any child born to a Nepali citizen mother, and whose father is unidentified, shall be provided citizenship. If the father is a foreign citizen, then citizenship of the child must follow the naturalisation process.”

    Regarding inter-caste marriage DFAT reports:

    “3.35 There are no legal barriers to inter-caste marriage in Nepal and the government has provided monetary incentives of 100,000 NRs (approximately AUD1, 300) to each inter-caste couple married since 2009. According to one study that examined 123 inter-caste marriages from Banke, Parbat and Shanusha districts between December 2011 and March 2012, 80 marriages were between a Dalit male marrying a non-Dalit female and 43 were between a non-Dalit male marrying a Dalit female. The former type of union was generally more successful. However, overall, success of an inter-caste marriage depends on a range of factors including economic, educational, social and political status. The practice of downgrading one's caste as a result of inter-caste marriage still exists in remote and rural areas. Dalit families involved in such arrangements can risk even further social exclusion and non-Dalit families risk losing their status in society.

    3.36 DFAT assesses that inter-caste couples can face disapproval by their families or society. Accusations of criminal activity such as theft, kidnapping, child marriage and rape can be used by the (relatively) higher-caste family to pressure the break-up of inter-caste marriages. Physical attacks and social exclusion by the families can also be imposed on couples in order to force a break-up of the relationship. Women (regardless of their Dalit or non-Dalit status) generally suffer more than men from such attacks, particularly social and familial humiliation (see section on ‘Women’ below). “