1502222 (Refugee)

[2016] AATA 4876

1502222 (Refugee) [2016] AATA 4876 (26 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502222

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Jane Marquard

DATE:26 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 26 September 2016 at 3:39pm

CATCHWORDS
Refugee – Protection visa – Nepal – Imputed political opinion – Not an active Maoist – Ceased to be a Member – Social group – Successful businessman – Pressured to provide political donations – Concerned about criminals – No well-founded fear – extortion and donations consistent with country information

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 91S, 424AA, 499
Migration Regulations 1994 Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
Chan v MIEA (1989) 169 CLR 379

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 claims to be a citizen of Nepal and is [age] years old. He was born in Nepal and first came to Australia on a Subclass 600 Tourist visa in February 2014. He applied for a protection visa on [date] April 2014.On [date] January 2015 the delegate of the Minister for Immigration and Protection refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

2.  This is an application for review of that decision.

3.  The applicant appeared before the Tribunal on 6 September 2016 to give evidence and present arguments.

4.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CLAIMS AND EVIDENCE

Evidence before the Department

5.  Information provided by the applicant in his application forms, indicates that he was born in Myagdi, western Nepal. He has a wife [and children] in Nepal, as well as his parents, [sisters] and [brothers]. He speaks both Nepali and English and was educated until year 12 level.

6.  The applicant provided the following information relating to his claims for protection. He claimed that he left Nepal due to death threats from political opponents, the Nepali Congress Party. He claims that he was a member of the United Communist Party of Nepal-Maoist (UCPN-M) ( the Maoists). He stated that, in June 2001, he befriended Maoist members in his village. He became interested in Maoist ideas and read books to learn more. He believed Maoists were helping people. In April 2002 he decided to become a member of the Nepal Communist Party. He said that even though he joined, he was not fully aware of politics. He said that, at first, the Maoists were doing good things, but after the police began to chase them, things changed. He claimed that he worked as a campaigner and activist within the village, spreading awareness. He said that he was harassed by the police and supporters of Nepali opposition parties, mainly the Nepalese Congress Party and National Democratic Party. He said that, in September 2004, he was captured and tortured by police, and threatened that if he did not give up supporting Maoists, they would kill him. In November 2013 a group of Nepali Congress Party members came to him, and threatened that they would kill him if he continued supporting the Maoists. He said that he feared being kidnapped and killed.

7.  The applicant provided the Department with the following documents:

·    a Certificate of Incorporation and registration certificate for his business, [Company 1];

·     a land ownership registration certificate for a house in Myagdi;

·     a fixed deposit receipt;

·     a property valuation report for a property owned by the applicant and his wife in [Kathmandu];

·     a certificate of marriage;

·     a citizenship certificate; and

·     a detailed statement in September 2014 in which he claimed that he decided to support the Maoists in order to avoid harm from them. He said that he was not involved in armed insurgency. He said that he worked as a messenger for active members in the party when they wanted to arrange meetings. He said that when he was threatened by the Nepali Congress Party members, he received no help from the Maoists and was in grave fear of being killed. He left Myagdi and went to Kathmandu, where he established a business, which did well. Because he was a successful businessman, from 2012 to 2014 he was forced to pay criminals many times in donations, amounting to Rs [amount]. He paid the money under fear for his life, in secret locations. He found that he could no longer pay, and these criminals refused him permission to continue his business unless he paid. He lived in constant fear of being extorted or harmed by the criminals. He claimed that on [date] January 2014, a group of Nepali Congress Party members entered his apartment in Kathmandu and demanded Rs. [amount] or they would kill him at any time anywhere in Nepal. He could not pay the money but agreed to pay them Rs.[amount], and the rest in three months. He made reports to the police. He also requested the Maoists Party Nepal, National Human Rights Commission and Nepal Bar Association to protect him from being extorted or harmed, but he received no help. As he was unable to pay the money he decided to leave Nepal and came to Australia.

8.  The applicant was interviewed by a delegate of the Department of Immigration and Border Protection. The Tribunal has listened to the audio recording of this interview. Details of the evidence given is included in the delegate’s decision statement, a copy of which was provided with the review application. He said that he is from the Chhantyal caste and is Hindu, but not very committed. He said that in Nepal he had [a] company and owned [property] in Kathmandu, which he has leased out. He said that he joined the Maoist party in Myagdi in 2002 because he was scared, and wanted to protect himself. It was called Nepali Communist Party Maoist. Asked if he was still a Member, he said that he was not because he became too busy with his business. He ceased being a Member in about 2005. As a party member, he helped them assemble papers and talk to villagers about the party in Myagdi. The police arrested him in 2004 and he said that he was not heavily involved with Maoists and he was released. He said that he feared criminal gangs as he is wealthy. There are many groups targeting him; underground parties and the sister organisation of Nepali Congress Party, the Nepal Taran Dal, who do not like Maoists and have sent him threatening letters. He cannot pay the money demanded, and knows someone who was killed for this reason. He fears Maoists for revenge for giving up the party and disclosing secrets and because he is a businessman – if he doesn’t provide he will be killed. He also fears the Nepali Congress Party. He said that he could not relocate because Nepal is tiny and he could be found anywhere.

Evidence before the Tribunal

9.  The applicant appeared before the Tribunal on 6 September 2016 to give evidence and present arguments. A summary of relevant evidence follows.

10.  The applicant provided the following documents to the Tribunal:

• a copy of his United Communist Party of Nepal identity card 2006 to 2009;

• a Donation Receipt dated  [June] 2011 for help to Nepal Tarun Dal (Nepal Youth Organisation);

• A Document from [Police Post 1], dated [January] 2014, stating that the applicant had filed an application in the office dated  [November] 2013, asking for protection of his life and property since he frequently received the threat to his life and property from the UCPN(Maoists) party after he left the party

11.  The applicant said that he is [age] years old now. He was born in Myagdi, Western Nepal, a district made up of 40 villages. His parents were farmers and are now retired. He has [sisters] and [brothers]. He moved to Kathmandu in 2004. He has a wife [and children]. After the earthquake they had to move outside for 2 weeks and his daughter was very upset and did not want to move back to Kathmandu.

12.  He had 12 years of education in Myagdi. When he finished school, he [worked] in his village, then moved into farming and in real estate. He had an office in Kathmandu for his company, [Company 1]. He had a few partners in this company, and [Company 2] another company which he ran.

13.  He said that [Company 1] is still being operated in Kathmandu. He said that the company was satisfactory for two to three years. He said that it is still doing well now. He ran it until he came to Australia and was on the Board of Directors.

14.  He went on to say that [Company 2] is still being run by his partners. Each village has a member. That business is regarded as one of the top businesses in Nepal. He is not a member but has a share.He said that on the land he owns there are two [businesses], but after he came to Australia his private home on the same land was sold. He still owns one property in Pokhara and one in Kathmandu.

15.  He was asked how he first became involved in politics. He said that after finishing year 10 he was a [occupation]. During that time there was an insurgency and the Maoists were forcefully recruiting people into the party. Maoists made it mandatory to join. He did not join at first because he was in business. In 2004 he joined the party but was not involved. During the insurgency the Maoists came to the village and took young strong people to join. Many people were forced to join. It was mandatory for him to join. Asked to describe the day he joined he said that he was [working] and the Maoists came to the [workplace] and the whole of Myagdi was captured by Maoists.

16.  The applicant then commented to the Tribunal that he had left the Maoists, and his main problem was not about Maoists. He said that the Tribunal was asking him about Maoists, but he fears something else. The Tribunal indicated that it was questioning him about fears as expressed in the Department application. He said that he had left the Maoists but had moved to Kathmandu so did not want to mention Myagdi and the past. His real fear is related to Kathmandu and his business. He was asked if he fears returning to Nepal because of his involvement with Maoists in the past. He said that, in the past, he was a member of the Maoists but has no contact or connection with them anymore. His main concern is that the criminals are asking him for money and he has reported it to the police but gets no help.

17.  He said that he was not an active Maoist but, after the peace treaty, that period of violence has gone. The country is peaceful and there is no conflict. The Maoist army has divided and some have joined the Nepalese army and others have taken voluntary retirement. He joined the Maoists because was forced to join, the situation was crucial otherwise they would have killed him. In his district no-one was killed because everyone joined or fled the area.

18.  The Tribunal asked the applicant to confirm whether he is concerned about harm from parties which oppose the Maoists, and he responded that he is concerned about the criminals as the police are not doing anything. He said that he fears the sister organisation of the Nepali Congress Party, Tarun Dal, and sister organisations of the Maoists, who have asked him for donations. He cannot get records of these donations every time. He has submitted a police application of complaint. He was asked if he was referring to Tarun Dal and the sister organisation of the Maoists as the criminal organisations who ask him for donations, or was he referring to other criminal organisations as well. He confirmed that he was referring to Tarun Dal and criminal groups associated with the Maoist political party in his area.

19.  He said that he thinks that Tarun Dal were targeting him because he had a successful business. He said that he did provide them with some money but he escaped from them by coming to Australia. He said that he had not given them any money the last time. He was asked what would happen if he did not pay the money at all given he could not do so. He said that he had two options – give money or be killed. He was asked why he thought that he would be killed. He said that lots of people are after him. The first people after him are the people from Tarun Dal who are after him because he was a Maoist and they want his money, and also the criminals who always approach him.

20.  He was asked what happened at his first political meeting with the Maoists, and he responded that he did not go to an official meeting. He was involved in engaging with Maoists and providing information to villagers. He said that he does not have any involvement in politics – in fact he was compelled to get involved. Nepalese politics is very dirty. He had to provide information to them. His job was to advertise the Maoists and distribute information about Maoists; they were helping the poor people. Later they started killing people and he left. He wrote messages on the walls for Maoists. He was asked if he could remember what some of the policies were. He said that they wrote messages against the government, during night time.

21.  He was asked when he left the party, and he said that it was in around 2004/5. He said that during the night-time he was involved with the Maoists, but was working in business during the day.

22.  He said that, in 2013, he was successful in his businesses, and received income from his rent. Gangs were aware of his income. He got calls for donations. In Kathmandu there are many bad people. His income was targeted, so he had to flee. If he has to live there he would have to face this.

23.  He was asked when Tarun Dal first approached him for a donation. He said that it was on numerous occasions, the first time it was in 2013. Since then, they asked him twice. He was asked by other groups three to four times, but was not able to provide them with the money. He was asked who they were and he said that there were no names as they were groups of criminals. He gave them money three to four times but not the amount they demanded. He had not been asked for money by the Maoist group. He was only involved with Maoists for a short period so they may have not heard of the success of his business. Asked if he had any trouble with them since he left the Maoists, he said that he went to Kathmandu, and he thinks that the criminal group may be linked with the Maoist youth. Criminals are always associated with political parties.

24.  He said that when he was in the Maoists, Tarun Dal in Myagdi knew about it, so that Tarun Dal asked him for a donation. He was asked if he had any other problems with Nepali Congress Party besides his contacts with Tarun Dal where they asked him for donations. He said that he had no problems with them or other parties. He was asked if he had any problems with Nepali Congress Party when he was involved with the Maoists. He said that he was only associated with Maoists and was just a normal member, so had no problem with them.

25.  He was asked if he approached the police about the incident when Tarun Dal approached him and asked him for 22 lakh. He said that he did. The police took it lightly.  He said that he submitted the police report about this incident to the Tribunal. He was asked why he also approached the Maoist party about this incident. He said that it was because he was affiliated with the Maoists in the past so he sought help. He was asked why he would seek help from them if he had left them because he felt that they were killing people. He said that he was seeking consultation from an ex Member of Parliament from Myagdi. He was asked if he approached the police on any of the other occasions when he was asked for money.  He said that he only reported to police in relation to the 22 lakhs.

26.  He said that he is scared of Tarun Dal and the criminal groups. His life was comfortable and he could feed his family without hassles. He does not like being separated. He was asked what he fears would happen if he returns. He said that if he goes back they would know he has come back from Australia and they will think he has extra income and will threaten him and ask for donations.  

27.  He was asked why he came to Australia. He said that he came here on a visitor visa thinking this was a country supporting human rights and he came here for his security. He said that he came here with the intention of staying in Australia because it was not favourable to stay in Nepal. He was asked why he did not bring his wife and children with him. He said that he was being targeted not his family, and he thought that he would settle here and then get his family to Australia.

28.  He was asked if his partners in Nepal have been asked for donations. He said that he is not aware of this. He was asked whether these groups would not have approached his partners if they were trying to extort money. He said that his partners are in the category of people who could not provide donations. He was asked how successful business people are able to keep their businesses going without being killed. He said that there are various businesses, and everyone provides some sort of donations. Some businessmen are killed or abducted. They often seek business men running real estate.

29.  The Tribunal discussed with the applicant the Department of Foreign Affairs and Trade Report on Nepal 2015, and other independent sources, which suggest extortion and donations are a part of the way of doing business in Nepal, but suggest that there are few incidents of violence associated with it. The applicant agreed that there are only a few incidents of violence but submitted that he would be one of the few. He agreed Nepal is peaceful, although there is some conflict.

30.  The Tribunal also discussed with the applicant independent country information including the Carter Centre Report which suggests that Tarun Dal is pretty inactive, with only a very small number of reports of negative activities. He claimed that the message from the media is different from reality.

31.  The Tribunal asked whether there was anything further he wished to submit and he said that there was not.

FINDINGS AND REASONS

Relevant law

32.  A summary of the relevant law is set out at Attachment A.

Issue and finding

33.  The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection.

34.  When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

35.  For the reasons given below, the Tribunal affirms the decision not to grant the applicant a protection visa.

Nationality

36.  The applicant provided a copy of his passport and gave evidence that he was a citizen of, and born in Nepal. It was clear he was familiar with the culture, history and geography of Nepal, and the Tribunal accepts on the evidence before it that he is a citizen of Nepal, and that Nepal is the receiving country for the purposes of the complementary protection criteria.

Well-founded fear of persecution

37.  In order to meet the refugee criterion the applicant must have a well-founded fear of persecution for one of the five reasons set out in the Convention.

38.  In this case, the applicant claimed in his application forms to the Department that he fears harm from the Nepali Congress Party because he was a member of the United Communist Party of Nepal-Maoist (UCPN-M) (a Maoist). He also claimed that he fears harm from Maoists themselves. At the Tribunal hearing, he said that his real fear related to criminals who may extort him to pay money which he will be unable to pay, and therefore they will kill or otherwise harm him. However he also feared Tarun Dal, the youth group of the Nepali Congress party as they had tried to extort money from him as well.

Was the applicant a Maoist?

39.  In his application to the Department, the applicant stated that in June 2001 he befriended Maoists in his village. He said that he became interested in Maoist ideas and read books to learn more. He said that he believed Maoists were helping people and in April 2002 he decided to become a member. He said that at first Maoists were doing good things, but later things changed and they started to kill people.

40.  In a more detailed statement which he provided to the Department in September 2014, and also in his interviews with the Department and Tribunal, he claimed that he decided to support the Maoists in order to avoid harm from them. He told the Tribunal that Maoists forcefully recruited and made it mandatory to join. He said that the day he joined he was [working], and Maoists came to the school, and the whole of his hometown, Myagdi, was captured by the Maoists.

41. The Tribunal put these inconsistencies to him at the hearing pursuant to section 424AA of the Act. He responded immediately that he liked the ideas of the Maoists, as well as being pressured. The Tribunal does not accept this explanation. The two accounts are significantly different, with one account suggesting he made the effort to join himself freely because he was genuinely interested in the ideology, and the other suggesting he was forced into it during mandatory recruiting and he had no choice but to join. The Tribunal is of the view that, if the applicant had genuinely joined the Maoists, he would be able to specify whether he freely joined or was forced to join.

42. There were other inconsistencies between his various accounts of what took place in Nepal. The applicant stated in his Departmental application forms that he joined the Maoists in April 2002. He told the Department and Tribunal, at interview, that he ceased being a member in about 2004/5. He provided the Tribunal with a copy of his United Communist Party of Nepal identity card, which was dated 2006 to 2009. When asked why the card was dated 2006 to 2009, he stated that it was a renewal card and he remained affiliated. This does not accord with his evidence to the Tribunal that he left the Maoists and had nothing to do with them after he left. When asked to respond to or comment on this inconsistency pursuant to s.424AA of the Act, he said that he remained affiliated. This evidence is contrary to that which he had told the Tribunal earlier. This evidence leads the Tribunal to conclude that the card was not a genuine card and he was not a member when claimed.

43.  Furthermore, the applicant stated in his application forms to the Department that in November 2013, a group of Nepali Congress Party members came to him and threatened to kill him if he continued supporting the Maoists. In his detailed statement of September 2014 he said that, in January 2014, a group of Nepali Congress Party members entered his apartment in Kathmandu demanding money or they would kill him. He said that he asked the Maoists for help. He provided the Tribunal with a copy of a document from [Police Post 1] dated [January] 2014 which stated that the applicant had filed an application in their office, dated [November] 2013, asking for protection of his life and property, since he frequently received threats to his life and property from the UCPN (Maoists) after he left the party. At the Tribunal hearing he said that Tarun Dal had approached him for a donation in 2013 and, since then, they asked him twice. He thought that they may have targeted him for money, as the Tarun Dal in Myagdi knew he was in the Maoists. He said that he had provided the police report about this to the Tribunal. He said that he sought help from the Maoists. He said that he had no other problem from the Nepali Congress Party besides Tarun Dal asking for a donation, either when he was in the Maoists or afterwards.

44. At the Tribunal hearing the Tribunal put these inconsistencies to the applicant pursuant to section 424AA of the Act. The applicant responded that he feared Tarun Dal, the sister organisation of the Nepali Congress Party. He said that he had told the Tribunal about the key incident, which was the one involving Tarun Dal. He said that he was threatened to be killed for both reasons, because he was in the Maoists and because he could not pay the money.

45.  The Tribunal does not accept this explanation. In his application form, and at the Tribunal hearing, he did not mention a visit from Nepali Congress Party in January 2014 where he was threatened with death unless he left the Maoists, but this was clearly referred to in the statement of September 2014. However, at the Tribunal hearing, he said that he was under threat if he did not pay the money claimed to Tarun Dal. He also told the Tribunal that he was not threatened by Nepali Congress Party in any other way besides them extorting money, which did not accord with his earlier evidence to the Department that they threatened to kill him if he did not leave the Maoists.  He also said that the information about the threat from Tarun Dal if he did not pay the donation, was contained in the police report which he provided to the Tribunal. However that police report stated that he complained of threats from the Maoists because of his former involvement. As these inconsistencies relate to key matters, this leads to a conclusion that the evidence about Maoist involvement and threats from the Nepali Congress Party in relation to his involvement, is fabricated.

46.  The Tribunal also questioned the applicant about his Maoist involvement and he was unable to provide much information. For example, the applicant was unable to give evidence of a meeting which he attended, saying that he did not attend official meetings, or of specific policies, other than that Maoists were opposing the government and helping people.The Tribunal has considered cumulatively all of these inconsistencies as well as the applicant’s lack of knowledge about policies or meetings. The Tribunal is of the view that a person who had been a Maoist would recall clearly their reasons for joining the Maoists, be able to discuss ideology, as well as be able to report accurately on incidents when they were targeted by other political groups. However the applicant’s evidence has been inconsistent in a number of key ways. When considered cumulatively, the Tribunal does not accept that the applicant was active in the Maoists or that he has been threatened by the Nepali Congress Party, Tarun Dal, the Maoists or any other political group for political reasons. The Tribunal notes that the applicant himself has stated that the country is peaceful and that there is no violence between the political parties. The Tribunal does not accept, therefore, that there is a real chance of serious harm from any political group if the applicant were to return to Nepal in the reasonably foreseeable future, for reason of being a Maoist in the past

Well-founded fear from criminal groups

47.  The Tribunal accepts that the applicant was a successful businessman. He completed 12 years of education and then started property and investment businesses in Kathmandu, which, according to his evidence to the Tribunal, are still doing well. He claimed that [Company 2], in which he has shares, is one of the top businesses in Nepal. The Tribunal accepts that he owned two [businesses] on his land. He still has one property in Pokhara and one in Kathmandu. He provided documents evidencing his ownership of property. The Tribunal accepts that the applicant may have been asked for donations from criminal groups and that these groups may have had some connection to political parties. The Tribunal accepts that these criminal groups may ask him for donations in the future.

48.  The Tribunal does not accept that the applicant was targeted for political reasons as the Tribunal has not accepted that he was involved with the Maoists.

49.  The Tribunal has considered whether there is a real chance of serious harm from these criminal groups by asking him for money, or through violence, kidnapping or killing or other physical or psychological ill-treatment or any other form of serious harm.

50.  The Tribunal does not consider that the asking of money for donations constitutes serious harm. The Department of Foreign Affairs and Trade Report on Nepal 2015 states that extortion and donations are a part of doing business in Nepal. The Report states that:

“credible sources have told DFAT that the most common occurrence – forced donation – was generally seen as part of “doing business in Nepal. The practice reflects the intensely political nature of Nepali society and is confronted regularly by business persons. It also reflects the inability of Nepali political parties to formally and directly raise funds to support their activities. On this basis DFAT assesses that while businesses themselves may be targeted, individual members of the private sector are ordinarily free from harassment and intimidation.”[1]

[1] Department of Foreign Affairs and Trade Report on  Nepal, 2015

51. Section 91R(2) of the Act provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. The Tribunal does not accept that being asked for the money, or having to pay it, reaches the level of harm set out in this provision or any other similar type of serious harm. The applicant has confirmed that his businesses continue to do well, despite claims that he has been asked to pay donations and has done so in the past, and his partners continue to operate his businesses successfully. In light of this evidence the Tribunal does not accept that the harm which may arise in the reasonably foreseeable future through being asked to pay or the payment itself, would be such that it would cause significant economic hardship threatening his capacity to subsist, or denial of any capacity to earn a livelihood or any similar kind of serious harm.

52.  The Tribunal has also considered whether there is a real chance of serious harm in the reasonably foreseeable future through violence, kidnapping, killing or other physical or psychological ill-treatment or any other kind of serious harm. The Tribunal does not accept that there is a real chance of serious harm of this kind in the reasonably foreseeable future, given that the applicant’s partners are living and working safely in Nepal, and operating the businesses successfully, as are many other businesses. When asked about this, the applicant stated that they were not the kind of people to be asked for donations, however the Tribunal does not accept this explanation as he himself was asked for donations because he was a businessman. Furthermore the Tribunal also does not accept that there is a real chance of serious harm of this kind in the reasonably foreseeable future when considering country information about the security situation in Nepal. For example the Department of Foreign Affairs and Trade has stated:

Nepal’s lively political environment provides an opportunity for diverse political parties and views and an individual’s membership of a political party, along with their ability to be identified as a member and be politically active, is generally respected. DFAT assesses that while violence has occurred in the aftermath of the release of the new Constitution and Maoist and disillusioned splinter groups continue to threatened a return to bandhs and or violence, the overall risk is low.[2]

[2] Ibid

53.  Sources consulted include the South East Asia Terrorism Portal Assessment for Nepal, 2016, which states there were no fatalities from political insurgency in 2014/15 and the conflict now is focused on constitutional issues in the Terai:

Nepal, which had seen 4,896 fatalities, including 3,992 Maoists, 666 Security Force (SF) personnel and 238 civilians, in a single year at the peak of insurgency in 2002, sustained the environment of peace that had been established in 2013, through 2014 and 2015, with not a single insurgency-related fatality on record.[3]

[3] South Asia Terrorism Portal 2015, Nepal Assessment 2015, n.d., para.2

54.  The Maoists themselves have become a mainstream political party:

Reports indicate that the UCPN-M is no longer a revolutionary party that sees violence as the primary means of obtaining social and political transformation. Rather, the party has joined the political mainstream, endorsing the path of liberal democracy to achieve its goals.[4]

[4] ‘Of Revolutionaries and “Revisionists” in Nepal’ 2013, Economic & Political Weekly, vol. XLVIII, no. 02, 12 January < Accessed 8 March 2013; ‘UCPN (M) GC: Meet marks turning point for once-violent party’ 2013, eKantipur, 2 February < Accessed 24 May 2013

55.  The Immigration and Refugee Board of Canada in a report in 2015 could not find evidence of kidnapping due to extortion. The same report pointed to evidence of diminution of violence across Nepal with few reports of violence. One researcher stated that:

Networks of patronage and links to criminal networks have always supported Nepali politics..payments to politicians in Nepal of all parties either from delivery of corrupt services or as protection..is relatively routine.[5]

[5] Immigration and Refugee Board Canada, 26 November 2015, \\sydnetapp2\REFER\Research\2015\IRBC\NPL105360.E .pdf> accessed 24 September 2016

56.  The February 2011 Carter Centre Report refers to Tarun Dal as smaller and significantly less publicly active than either the YCL or the YFN.[6] Carter Center observers heard “a very small number of reports of negative Tarun Dal activities,” far less than the YCL or YF. The Carter Center report indicates that while there were continuing activities focused on financial gain, since June 2010, the overall public activities of political party youth wings had been limited and youth wing violence appeared to have decreased.

[6] The Carter Center 2011, Political party youth wings in Nepal, 28 February, pp. 8 & 26 < Accessed 17 March 2011

57.  As discussed earlier, the Department of Foreign Affairs and Trade Report 2015 has concluded that the overall risk of violence is low and that donation generally does not lead to intimidation or harassment of individuals in the private sector. The Report has also concluded that Nepalis returning from Australia are not targeted on the basis of wealth, and that this is due to the regular influx of business people in Nepal.

58.  The Tribunal discussed this independent country information with the applicant. He agreed that Nepal is relatively peaceful, and that risk of violence is low, but said he would be one of the few who would be harmed.

59.  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. A real chance in the context of refugee assessment has been described by the High Court as a substantial chance, as distinct from a remote or far-fetched possibility, however it may be well below a 50 per chance: Chan v MIEA (1989) 169 CLR 379.

60.  In this case, given the independent sources above, the Tribunal is not satisfied that there is a real chance of serious harm from any criminal groups, whether they are associated with political parties or not, or from Tarun Dal in particular, on the basis of the applicant’s inability to pay donations or for any other reason associated with the donations. For the same reasons, the Tribunal does not believe that he would suffer serious harm because he is in the real estate business. The Tribunal is also not satisfied that there would be a real chance of serious harm due to the fact that the applicant would be returning from Australia and would therefore be regarded as wealthy. Reports indicate a low risk of violence across Nepal, with little evidence of violence associated with forced donation and few “negative” activities from Tarun Dal. Reports also indicate that there is no increased chance of harm as returnees from Australia. The Tribunal is satisfied that a chance of harm is remote or a far-fetched possibility only, rather than a substantial and distinct chance. The Tribunal is also persuaded, in coming to this decision, by the fact that the businesses in which the applicant has been involved, continue to be successful and that his partners have continued to operate there. There is no evidence that they have been harmed in any way, nor has his family. Furthermore, the applicant himself did not give money when asked, on some occasions and has not been harmed in the past.

Does the applicant have a genuine fear of serious harm from Maoists?

61.  The Tribunal does not accept that the applicant has a genuine fear of serious harm from Maoists. At the Tribunal hearing he said that he had left the Maoists, and his main problem was not about Maoists. He said that he had no contact or connection with them any more and that his real fear was about Kathmandu and his business. He also stated that he approached them to get help with his problems from Tarun Dal. In light of this evidence the Tribunal does not accept that he has a genuine fear of serious harm from Maoists.

Findings on refugee criteria

62. 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).

Complementary protection criteria

63. 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) for the reasons set out below.

64.  As set out above, the Tribunal is not satisfied that the applicant was involved with the Maoists while he lived in Nepal, or that he suffered any harm for this reason. The reasons for this finding are set out above in the paragraphs relating to the refugee criterion.

65.  The Tribunal is also not satisfied, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm from any group as a result of having been a Maoist in the past.

66.  As set out above, the Tribunal accepts that the applicant was a successful businessman. He completed 12 years of education and then started a [businesses] in Kathmandu, which, according to his evidence to the Tribunal, are still doing well now. He claimed that [Company 2], in which he has shares, is one of the top businesses in Nepal. The Tribunal accepts that he owned two [businesses]on his land. He still has one property in Pokhara and one in Kathmandu. He provided documents evidencing his ownership of property. The Tribunal accepts that the applicant may have been asked for donations from criminal groups and that these groups may have had some connection to political parties. The Tribunal accepts that these criminal groups may ask him for donations in the future.

67. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. ‘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.

68.   The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33, which is discussed above. A real chance in the context of refugee assessment has been described by the High Court as a substantial chance, as distinct from a remote or far-fetched possibility, however it may be well below a 50 per chance: Chan v MIEA (1989) 169 CLR 379.

69. For the same reasons set out above in relation to the discussion about whether there was a real chance of serious harm, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that the applicant will suffer significant harm, as defined in section 36(2A):s.5(1).

70. The Tribunal does not consider that the asking of money for donations amounts to significant harm as defined in s 36(2A):s.5(1). The Department of Foreign Affairs and Trade Report on Nepal 2015 states that extortion and donations are a part of doing business in Nepal. The Report states that:

“credible sources have told DFAT that the most common occurrence – forced donation – was generally seen as part of “doing business in Nepal. The practice reflects the intensely political nature of Nepali society and is confronted regularly by business persons. It also reflects the inability of Nepali political parties to formally and directly raise funds to support their activities. On this basis DFAT assesses that while businesses themselves may be targeted, individual members of the private sector are ordinarily free from harassment and intimidation.”[7]

[7] Department of Foreign Affairs and Trade Report on  Nepal, 2015

71. “Cruel or inhuman treatment or punishment” is defined exhaustively in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental is inflicted on a person, or pain or suffering, whether physical or mental, is inflicted on a person, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The Tribunal does not accept that being asked for the money, or having to pay it, reaches the level of harm set out in this provision. While unpleasant, being asked for money does not reach the level of severe pain or suffering, or of being cruel or inhuman in nature.

72. The Tribunal is also not satisfied that forced donations amount to degrading treatment or punishment. This is defined in s.5(1) of the Act to mean an act of omission which causes, and is intended to cause, extreme humiliation which is unreasonable. Although unpleasant, the reports indicate that forced donations have been routine in Nepal, and therefore would not cause extreme humiliation.

73.   The Tribunal is also not satisfied that there is a real risk of the applicant suffering significant harm in the form of violence, death, kidnapping or other physical ill-treatment. Independent reports discussed above indicate a low risk of violence across Nepal, with little evidence of violence associated with forced donation or with Tarun Dal. Furthermore, the businesses in which the applicant has been involved continue to be successful and his partners have continued to operate there. There is no evidence that they have been harmed in any way and nor has his family. The applicant himself did not give money when asked on some occasions, and has not been harmed in the past. For all of these reasons, the Tribunal does not accept that the risk of significant harm from criminal gangs, whether or not they are involved with political parties, or Tarun Dal, is anything more than remote or far-fetched. This includes arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

74.  For the same reasons, set out above in relation to real chance of serious harm, the Tribunal also does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that the applicant will suffer significant harm because he is a returnee who will be perceived as wealthy. The independent reports indicate that there is not a real risk of significant harm for returnees on this basis.

75.  The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal there is a real risk that he will suffer significant harm.

76. 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

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

Jane Marquard
Member

ATTACHMENT A

RELEVANT LAW

78. 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

79. 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).

80.  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.

81. 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.

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

83. 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.

84.  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.

85.  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.

86.  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.

87.  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.

88.  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

89. 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’).

90. ‘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.

91. 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

92. 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.