1502512 (Refugee)

[2016] AATA 4367

1502512 (Refugee) [2016] AATA 4367 (15 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502512

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Andrew Mullin

DATE:15 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 15 August 2016 at 2:43pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The Applicant, who claims to be a citizen of Nepal, applied for a Protection (Class XA) visa [in] May 2011.  A delegate of the Minister refused to grant the visa [in] December 2011 and on 12 June 2012 the Refugee Review Tribunal affirmed the delegate’s decision.  The Applicant was unsuccessful in appeals to the Federal Circuit Court and the Full Federal Court.  An application for the Minister to intervene in his case was also unsuccessful.  [In] May 2014 the Applicant lodged a second protection visa application, which was deemed valid in the light of the Court’s decisions in SZGIZ and SZRNJ.  [In] January 2015 a delegate of the Minister refused the second visa application and on 20 February 2015 the Applicant applied to the Refugee Review Tribunal for review of the delegate’s decision.

   RELEVANT LAW

3. 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 that is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s.36(2)(a)) or on other ‘complementary protection’ grounds (s36(2)(aa)), or is a member of the same family unit as such a person and that person holds a protection visa of the same class (s36(2)(c)).

4. The Tribunal has considered the Applicant’s claims for protection only in relation to s.36(2)(aa) that is, the complementary protection criterion.  The reasons are as follows.

   ·The application under review was lodged [in] May 2014 and is a second application for a protection visa.   Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused.

   ·The Applicant first applied for a protection visa [in] May 2011.  The application was lodged in respect to the refugee criterion only.  [In] December 2011 a delegate of the Minister for Immigration refused to grant the Applicant a protection visa, on the basis that he did not meet the refugee criterion.  The delegate’s decision was affirmed on review by the Refugee Review Tribunal on 12 June 2012.  In affirming the delegate’s decision the Tribunal considered the Applicant’s claims under both the refugee criterion and the criteria under the complementary protection legislation, which came into effect on 24 March 2012 in respect to all matters not finally determined by that date. 

   ·The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. A protection visa application determined prior to the introduction of the complementary protection criteria did not prevent the making of a further protection visa application on the basis of complementary protection claims.

   ·In SZRNJ v MIAC [2014] the FMCA extended the principle established in SZGIZ v MIAC [2013] finding that even where the Tribunal (post 24 March 2012) has considered the complementary criteria in refusing an application, a second application will not be prevented if the original application was not based on complementary protection.  This is the case of the current application.

   ·The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a).

   Complementary protection criterion

5. A person will meet the refugee criterion in s.36(2)(a) if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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

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

8. Given the above, the issue in this case is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm.

   Section 499 Ministerial Direction

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

10. The Tribunal has before it the Departmental and Tribunal files relating to the Applicant together with other information available to it from a range of sources.

11. In his protection visa application [in] May 2014 the Applicant claimed, in summary:

    ·He was born in [his home town in], Myagdi, Nepal in [year].  He lived in [his home town] from [specified year] to May 2008 and in [a town in] Kathmandu, from May to October 2008.  He received a total of [number] years of formal education in Nepal, ending in 2006, and from 2006 to 2008 he helped his parents and participated in social work and political activities.  He arrived in Australia [in] October 2008 as the holder of a [temporary] visa.  He is unmarried and his parents [and specified relatives] live in Nepal.

    ·He became interested in politics after completing his [schooling].  He liked the ideology of the Communist Party of Nepal (United Marxist Leninist) – CPN-UML – and he joined the party, with the aim of remaining politically active for the rest of his life.  He was involved in political activities and social work. 

    ·He was targeted by Maoists for his political opinion and because he criticised them for their unlawful activities.  He received a death threat from them and so was forced to leave Nepal for his safety.

12. The Applicant added to these claims in a written statement supplied to the Department at a protection visa interview [in] December 2011, as follows:

    ·Maoists abducted him from his school in [year], threatening to kill him if he resisted.  He was forced to attend Maoist education classes and participate in military training, including in placing mines and doing sentry duty.

    ·He was not interested in politics during his school days and first became involved with the CPN-UML in July 2006.  He officially became a member of the party in December 2006.  He was motivated to seek a political career.

    ·He was intimidated by the Maoists due to his political opinion.  They threatened to kill him if he defied them and, having no option, he pretended to disown his CPN-UML membership and join them.  In reality, however, he continued to support the CPN-UML in secret, despite the Maoists’ threats.

    ·He engaged in social and political activities in his village and became the [Position 1] of the CPN-UML, following directions from party leaders.  He attended a number of meetings and rallies arranged by the party, distributed many leaflets and encouraged villagers to join the party. 

    ·In May 2008 he gathered local villagers and beat up some Maoist cadres who tried to abduct a local businessman.  They injured four of the Maoist cadres.  He reported the matter to the district police but they were very reluctant to intervene and arrest the cadres.  They ignored his safety and simply asked him a few questions.

    ·Following this incident he knew he would be at risk of harm.  He was targeted because of his active criticism of the Maoists over their unlawful activities and his defiance of them in continuing to support the CPN-UML.  He left the village in fear and went to Kathmandu.  He heard from his father that, in his absence, a group of [Maoists] of the Young Communist League had come to the house looking for him. 

    ·In Kathmandu he stayed with a relative.  He did not travel much outside the house until he fled the country for Australia in May 2008 as the holder of a [temporary] visa, obtained with the help of an agent on the basis of a false marriage certificate.

    ·The Maoists will kill him if he returns to Nepal.  The authorities will not protect him because they are weak and corrupt.

13. The delegate refused to grant a protection visa as he found the Applicant’s claims were not credible and had been fabricated to provide a basis for his protection visa application in order to extend his stay in Australia, for reasons unrelated to the Refugees Convention. 

14. In its decision of 12 June 2012 the Tribunal, previously constituted, found that the Applicant was not a witness of truth and that his account of events on which his protection claims were based was false.  The Tribunal found there was no credible evidence he would suffer persecution on a Convention ground or significant harm in terms of the complementary protection criterion if he were returned to Nepal.

15. In his second protection visa application, lodged [in] May 2014, the Applicant claims that he is gay and is in a sexual and emotional relationship with [Mr A], his defacto partner.  His family will not accept his sexual orientation and he fears they and his relatives may harm him if he returns.  He also fears he may be forced to undergo medical treatment to change his sexual orientation.  He may be killed.  The authorities will not protect him as they still consider homosexuality to be against Hindu values.  He would face harm wherever he went in Nepal.

16. [In] January 2015 the representative forwarded to the Department a statutory declaration signed by the Applicant that day.  The Applicant states, in summary:

    ·He applied for a protection visa previously on the basis of his political opinion in support of the CPN-UML.  He still holds a fear that he will be targeted and harmed for this reason.

    ·He is homosexual in his sexual orientation and from a conservative Nepalese society.  Before coming to Australia he had some sexual experiences with other males.  He would kiss and hug one of his classmates, [Mr B], and they engaged in mutual masturbation.  On one occasion they were observed kissing by [Mr B’s] sister and were both beaten by their parents.  [Mr B’s] parents then forced him to marry a girl and his intimacy with the Applicant ended.  The Applicant met another male person in Kathmandu prior to coming to Australia [with] whom he engaged in hugging and kissing.

    ·In Australia he hid his sexual orientation.  His lack of English language skills prevented him mixing with the non-Nepalese community so he lived with Nepalese people.  He was scared to ask his Nepalese friends about the gay lifestyle in Australia. 

    ·In December 2013 he met his current partner, [Mr A], in a club in [Suburb 1].  They chatted and exchanged telephone numbers.  They texted and called each other and became very good friends.  In the same month [Mr A] told him he was gay.  He felt happy to meet a person of his own sexual orientation and he disclosed to [Mr A] that he, too, was gay.  After that they began going to dinner and clubs and gradually became closer.  He moved into [Mr A’s] accommodation in February 2014 and began a continuing sexual relationship.  The two consider themselves as a gay couple.

    ·He fears he will face serious harm if he returns to Nepal because of his sexual orientation.  He is a gay male in a homosexual relationship with his partner, who is also a Nepalese refugee.  He cannot live together with [Mr A] and enjoy life in Nepal because Nepalese society is still conservative, even though [Mr A] is now an Australian citizen.

    ·He fears that if he returned to Nepal his family would force him to marry a girl, and that if he failed to obey them he would face serious harm.

    ·He fears he cannot get state protection because the Nepalese authorities still consider homosexuality to be against Nepali culture and Hindu religion and values.

17. The representative also forwarded a statutory declaration signed by [Mr A] on the same day.  [Mr A] declares that:

    ·He is gay and was granted a protection visa in Australia on the basis of his sexual orientation. 

    ·He has been residing with the Applicant in a same-sex partner relationship since February 2014.  They are emotionally and physically attached to each other.  ‘From our sexual conduct together l have no doubt that he is gay like me.’

    ·He fears the Applicant will face serious harm from his family and society if he returns to Nepal.

    ·Even though he himself is an Australian citizen he still fears for his safety in Nepal.  This is why he has not returned since his arrival in Australia as a [temporary entrant].  It would not be possible for him to live together with the Applicant as a couple in Nepal.

18. In a further submission to the Department, dated [in] January 2015, the representative canvasses legal issues, cites a range of reports dealing with human rights conditions in Nepal and the treatment of homosexuals and submits that:

    ·The Applicant would face torture, either physical or mental, from the authorities or from society as a gay man who belongs to a vulnerable group in Nepal.

    ·The Applicant’s family would exert pressure on him and force him to marry, which would amount to mental torture and would prevent him from continuing to live with his partner of choice, [Mr A].

    ·He cannot escape this harm by relocating to some other part of Nepal.

    ·The authorities will not protect him from the harm he fears.

    Tribunal hearing

19. The Applicant appeared before the Tribunal on 21 June 2016 to give evidence and present arguments.  The Tribunal also received oral evidence from [Mr A].  The hearing was conducted with the assistance of an interpreter in the Nepali and English languages.  The Applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

20. The Applicant’s evidence was, in summary:

    ·He left Nepal and came to Australia, in October 2008, because he was a member of the Communist Party of Nepal and was under threat from Maoists to kill him.  These threats began two or three years before he left.  Asked if he knew any of the Maoists individually he said he knew the names of only two [who] were local village people and leaders of the Young Communist League and who were ‘in charge of everything’.  Asked why they had singled him out he said he was a person who had acted against them.

    ·Asked if he feared harm in Nepal for any other reason he referred to an incident in which he had tried to save the daughter of a lady and was bashed by the YCL in a shop.

    ·Asked what he feared would happen to him if he returned to Nepal he said he was presently in a relationship with [Mr A].  If he returned he would be forced by his family and neighbours to marry a girl, according to traditional social custom.  This would be against his wishes.  He would also be at risk of harm from the Maoists because of his past political activities.

    ·Regarding his background circumstances in Nepal he said he was raised in his family home in [his home town in] Myagdi, a village of some [number] or [number] hundred households.  The house is presently occupied by his parents and [sibling], together with [other relatives].  His father is [occupation].  The Applicant had lived in the house all the time he was in Nepal, with the exception of a period of six to seven months, before his departure for Australia, when he was living in Kathmandu.  He is in communication with his parents and [sibling] only infrequently – ‘once in a blue moon’ - as a result of his relationship with [Mr A].  Asked about his employment between the time he finished his education in Nepal in 2006 and his departure for Australia in 2008 he said he did not do much.  He worked as [occupation] and was also involved as a member of the CPN in the party’s activities. 

    ·He confirmed his claim that in Nepal he had realized his sexual orientation was toward other men but that he had not revealed this to anyone.  His parents had not been aware of his sexual orientation at first but later learned of it in about 2007, as a result of an incident in which he was observed kissing a male friend by the friend’s sister.  They tried to force him to marry a girl, telling him that relations between men were wrong, but he resisted this pressure.  Asked to explain how they pressured him he said his having kissed another male was regarded as very new – the first time such a thing had ever happened.  He was, additionally, an only son.  I asked him again if he could describe what had actually happened and whether there had been, for example, a family meeting where the subject was discussed.  He agreed that there was such a meeting.  He told his family that he only wanted to have relationships with men and they were not able to force him to marry.  Asked if he had met the girl who was selected for him he said he had not done so and  had he met her family although their two families had met.  Asked if his family had tried to pressure him in any other way he said they did not do so.

    ·He confirmed he made the decision to come to Australia, as a [temporary entrant] in 2008.  Asked if, in order to obtain the [temporary] visa, he had had to obtain a marriage certificate he said all the documents were fake.  Asked when he had met the person who was falsely claimed to be his bride he said the arrangement was made by his [relatives] by paying an agent.  Two or three months later they came to Australia.  Asked why it had been [these relatives], rather than his parents, who had paid for these arrangement he said his parents did not have much money.  Asked about [these relatives’] source of income he said they did not have much money either, but they were able to borrow from other people. 

    ·I put to him it seemed unlikely that, after an incident in 2007 which revealed that his sexual orientation was towards other men, his highly conservative parents would engage in presumably complex negotiations aimed at selecting a suitable girl for him to marry, only to abandon the whole effort after just one family meeting when he rejected the proposal; I suggested it seemed much more likely that he would be subjected to repeated lectures from the family over many months, designed to make him change his mind and abandon his homosexuality.  He agreed that such responses are normal in a family.  I put to him I found it difficult to believe that if there had been continuing efforts to change his sexuality and his rejection of heterosexual marriage, his family would then abandon this approach towards the end of 2008 and decide to pay the very large amounts required to allow him to go to live in Australia, a western society where the rules governing sexual behaviour are far more liberal.  He said his parents had tried hard to change him but there was no way in which this was possible. 

    ·Noting his claim to have separated from his pretended wife quite quickly after arriving in Australia I asked the Applicant how he had been able to support himself here.  He said he [worked] and had managed to survive.  Recalling that the documents he had submitted regarding his marriage were faked I asked if he had gone through any kind of divorce procedure, even if this itself was fraudulent.  He said his wife had sent him a divorce letter, from a Court, three or three and a half years previously.

    ·Asked when he had begun his relationship with [Mr A] he said it was two years previously, in about December 2013.  Asked where they had met he said it was in [Suburb 1].  Asked where in [Suburb 1] this was he said it was in ‘[club name]’.  Asked if he had been involved in a relationship with any other men in Australia during the preceding five-year period he said it had not been possible for him to do so as he had been living with Nepalese flatmates.  He had not been able to engage in any kind of homosexual sexual activity during this period for this reason and also because of the language barrier.  Nor had he had sexual contact of any other kind in this period.

    ·Asked where he and [Mr A] were living he said they share a two-bedroom unit at an address in [Suburb 2].  Asked if they shared this with anyone else he said there is a third person living there, named [Mr C].  Asked this person’s surname he said he did not know it.  He thought he came from [another country].  Asked if [Mr C] was already in residence in the apartment at the time he moved in he said he was.  Asked about the nature of [Mr C’s] relationship with [Mr A] he said he did not really know.  So far as he was aware they were good friends.  [Mr C] occupied one of the bedrooms while he and [Mr A] occupied the other.  He confirmed his claim that his relationship with [Mr A] is a sexual one.  Asked if [Mr A] had never told him about his relationship with [Mr C] he said he had not.  He agreed he had asked him about it but said he was always told by [Mr A] that he and [Mr C] were good friends.

    ·Asked what activities he and [Mr A] shared in public he said they sometimes went out together for a drink and sometimes attended Nepalese cultural and sporting events.   Asked where they drank he said they sometimes went to [a city location] and sometimes nearby in [Suburb 2].  Asked about the venues they visited he said they went sometimes to [a city venue] and sometimes to a club in [suburb].  Asked if they did anything else he said [Mr A] was normally busy during the week as [an occupation] in [a workplace], and their public activities were restricted to weekends.

    ·Asked when it was that he and [Mr A] had last been out in public together he said it was the preceding Saturday.  They went to a nightclub in [a suburb], not too far away.  They drank beer and watched soccer on the screen.  Later they travelled home by taxi, arriving at nine or ten pm. 

    ·In his witness evidence [Mr A] confirmed the Applicant’s claim that they first met in a club in December 2013.  A friendship developed, the Applicant moved into his room and their relationship became a sexual one.  Asked about his accommodation he confirmed that he and the Applicant are living in a two-bedroom apartment in [Suburb 2] with another person.  Asked the name of this person he gave it as [Mr C], with whom he had previously had a ‘little bit of a relationship.’  He then agreed with my observation, based on information on the Applicant’s Departmental file, that it had been more than this and that he had, in fact, sponsored [Mr C’s] application for a partner visa and permanent residence on the basis of a spousal relationship.  Asked if he had explained this information to the Applicant he confirmed that he had done so.  He added that the situation was made easier because they were all homosexual and were ‘all on the same page.’

    ·I suggested to [Mr A] that the nature of this household seemed unlikely given that he had previously sponsored [Mr C] on the basis of a relationship which was so close as to be spousal but was now living in a sexual relationship with the Applicant in one room while his former partner lived in the other room.  He agreed that the arrangement was somewhat unusual and said his relationship with [Mr C] had changed because [Mr C] himself had changed, becoming ‘a little bit’ involved with girls.  They always had a mutual understanding that they could live together without a physical relationship, like friends.  This was made easier because [Mr C] had previously been homosexual but was now changed, and he displayed no interest whatsoever in the current relationship between him and the Applicant.  [Mr C] was simply a flatmate. This was the reason that everything had worked out.  Asked if he meant [Mr C] had changed his orientation from homosexual to heterosexual he said this was the reason his relationship with him had ended.

    ·[Mr A] confirmed that he and the Applicant go out in public together.  Asked where they went he said it was to [a city location] and other pubs.  Asked what else they did he said they sometimes went together to movies, shopping and for drives.  Asked if he had a car he said the Applicant had one.  Asked about the last occasion on which they went out together he said it was the previous Saturday.  Asked where they went he said they went for a drive to [Suburb 3] but did not get out of the car.  They got coffee and then the Applicant dropped him near a pub in [Suburb 4] because he had to do something else.  This was about 1 or 2 pm.  Asked if they had done anything else together in public that day he said he could not remember.  I summarised his description of the events of that day and asked if he and the Applicant had not gone together to a club.  He asked if I meant on the Saturday.  Informed that I did mean that day he hesitated for some time.  I put to him that he should be able to remember whether or not he had done so.  After a further and longer silence I observed that this event was said to have occurred only two or three days previously, and that if they had gone together to a club he would be able to remember it.  He said he did not have a memory of what exactly happened on the weekend and was confused about what they did and what happened.  He had been on medication and had also consumed alcohol, and he thought this had caused a reaction.  Asked what medication he had taken he said he it was [specified medication].

    ·[Mr A] confirmed that he had previously provided evidence to the Refugee Review Tribunal in other cases, either in person or in the form of statutory declarations, stating that he was in a homosexual relationship with applicants or that he knew they were homosexual.  He confirmed he had done so in the case of [Mr C].  I suggested that the fact that [Mr C] was not homosexual could cast doubt on the truth of his statement about him.  He said he was not claiming that [Mr C] was not homosexual – just that he was ‘a little bit heterosexual.’

    ·Following a brief adjournment I put to the Applicant that, having heard his evidence and that of the witness it seemed clear that there were some major inconsistencies between the things each had said about their relationship.

    ·I put to the Applicant that [Mr A’s] evidence was that he had explained to him the nature of his relationship with [Mr C], including the fact that it had been a sexual relationship, in the nature of a spousal relationship which was the basis for [Mr A] sponsoring [Mr C] for a partner visa.  His own evidence was, by contrast, that [Mr A] had never told him anything about the relationship.  Invited to comment he said [Mr A] had not mentioned this in detail.  He had asked whether or not [Mr C] was his friend but had not wanted to ask any details about their previous relationship.  I noted the point was [Mr A’s] evidence that he had told him about it.  He said [Mr A] may have mentioned it when they were drunk.

    ·I put to him I found it somewhat difficult to accept that he lived in a sexual relationship with [Mr A] in a household which also included a man, living in the other bedroom of their apartment, who had previously been [Mr A’s] lover in a relationship which was so close as to be of a spousal nature and which led [Mr A] to sponsor him for a partner visa.  I put to him that I listened to [Mr A’s] explanation that [Mr C] had changed his sexual orientation so that this was no longer a problem but that I had concerns about the plausibility of a person in the alleged situation of [Mr C] continuing to live in a small apartment with them.  While this might not be impossible it seemed unusual, and I did not find [Mr A’s] explanation very convincing.  Invited to comment he said he really did not know what happened between [Mr A] and [Mr C] before he entered the house and what kind of relationship they had.  He only knew that over the last two or two and a half years since he moved in there was only a relationship with [Mr A].  Their relations with [Mr C] were normal and he knew the situation very well. 

    ·I observed that he and [Mr A] had given quite different accounts of their most recent public activity together, on the preceding Saturday.  He had said that they went to a club together, had some beers, watched soccer on television and then caught a taxi home, returning at about 9 pm.  [Mr A] stated that they went together to [Suburb 3] in the Applicant’s car, bought some coffee and then he dropped [Mr A] off in a pub in [Suburb 4].  They had not done anything else in public.  I put to him that these were major inconsistencies and could cast doubt on the truth of his claims.  He said both of them have poor memories and [Mr A] is under medication.

    ·I put to the Applicant that if I were to accept that his sexual orientation was purely homosexual I would have to consider whether this would expose him to harm on return to Nepal. I noted that the country information submitted to the Department by his advisor together with other information available to the Tribunal, including from DFAT, indicates there is still some degree of discrimination against gays and lesbians in Nepal and some residual level of discrimination in the law. Nevertheless, the information indicates there has been considerable progress over the past ten years since the Supreme Court’s 2007 decision requiring the government to remove all discriminatory legislation. Even if this process is still incomplete, the 2015 Constitution expressly requires equality of treatment and forbids discrimination based on sexual orientation. There are a large number of organizations, including Blue Diamond, which support gay rights, gay pride marches and transgender beauty contests. While some discriminatory attitudes remain this does not appear to have prevented people living in openly gay relationships. In recent years there have not been reports of any widespread arrests of people for homosexual activities, or of any significant violence against homosexuals. I suggested this information did not seem indicate he would suffer any particular harm on return to Nepal if he wished to form a relationship with another man.

    ·The Applicant said he accepted this information but if he returned to Nepal he was not sure if he would be harmed.  He had been in a relationship with [Mr A] for two years and it was a very deep relationship.  They did not wish to separate or lose each other.  However, [Mr A] could not go back to Nepal.  Asked why [Mr A] could not return he said it was because his base was in Australia.  He had become a refugee, on the basis of his homosexuality.  He had not returned to Nepal and did not wish to do so.  To the suggestion that the situation had moved on since [Mr A] was last in Nepal and that his wish not to be separated from [Mr A] did not appear to engage Australia’s protection obligations he repeated that they did not want to separate.

    ·Regarding his claim that if he returned to Nepal his parents would be able to make him marry I put to him this did not seem very likely; he had been able to resist this pressure when he was a boy, living in the family home, and if he returned to Nepal it would be as an adult who had lived in Australia for eight years.  He said they would definitely do it.  The culture in his village is still the same as it was in the past.  I put to him again that if he had been able to resist them in the past it was hard to see why he could not do so again.  He said that at the moment he could not.

    ·Asked what he had done as a member of the CPN he said he had been just a simple member who would make villagers aware of things.  He was not a high-level worker.  Asked how he would make villagers aware of things he said he used to discuss the CPN with them.  Asked how he actually did this he said he did not have much knowledge of the party as he was new to it.  He knew it was a big party and that it did things in favour of the people, for human-kind.  Asked how he would meet these people he said everyone lived in the village or nearby.  Sometimes they would gather in the evenings, including at the football field.  Recalling that he was a schoolboy at the time I suggested that he would not have had much influence over people in his village.  He agreed it was hard for people to trust a person of his age.  However, he used to obtain knowledge from seniors in the party which he would then pass on to junior people.  He was unable to gather large numbers of people but only small groups and would talk to only small gatherings. 

    ·I put to him that this description of his role in the CPN-UML seemed to be at variance with the claims in his written statement that he had become the [Position 1] of the party.  He said this was only for a small area.  He said the designation as [Position 1] was ‘not very effective.’

    ·I put to him that in his original protection visa application of May 2007 he claimed to have been a member of the CPN-UML and to have been intimidated and targeted by Maoists, in particular because he had criticised them for their unlawful activities.  In a statement [in] December 2007, six months later, at the time of his protection visa interview, he claimed that he had been abducted from his school by Maoists and that on another occasion he was protecting a local businessman from abduction by Maoists and became involved in a fight with them, in the course of which several people were injured.  I suggested that these would have been important and memorable incidents and it was hard to understand why they were not mentioned in his original application.  He responded that he had mentioned them in the application but, challenged, agreed he did not do so until the subsequent statement.  He said he had simply failed to mention them when he was preparing his application.

    ·I noted that in his statement of [December] 2011 he said he had not been interested in politics during his school days and first became involved with the CPN-UML in July 2006, after leaving school.  In his first Tribunal hearing on 17 April 2012, however, he claimed to have become involved in working for the party while he was still at school, in the middle of Year [grade].  He said that whatever he mentioned in his written statement was true. 

    ·I put to him that if he had genuinely feared harm in Nepal it seemed difficult to understand why he had delayed seeking protection until May 2011, two and a half years after he arrived in Australia.  He said he had no idea of this possibility and there was nobody to advise him.  Noting his claim to have been living within the Nepalese community here I put to him it seemed difficult to believe he would not have heard of the possibility of seeking protection.  He said he had not asked and nobody had told him.  I put to him that as he had come to Australia with a [temporary] visa obtained with falsified documents and his pretended wife was living somewhere else it would have been obvious to him that he could not remain in Australia indefinitely.  He repeated that he had received no suggestions about this possibility.

    Invitation to comment on adverse information

    Harm from Maoists

1. The Applicant confirmed that he understood the information I had discussed with him, including information obtained from his first and second protection visa applications, the statements accompanying them and his oral evidence in his protection visa interview and the previous Tribunal hearing.  I explained the information was important for his case because it could cast doubt on the truth of his claim that he was ever involved with the CPN-UML, that he was ever targeted by Maoists for this reason and he came to Australia because he feared harm.  It could also suggest that he would be in no danger from Maoists if he were to return to Nepal.  Such conclusions would lead me to affirm the decision to refuse to grant him a protection visa.  He confirmed he understood why the information was important. 

   Harm as a homosexual

2. I also put to the Applicant that, as mentioned during the course of the hearing, the Tribunal has information (at f.66 of the Departmental file [number]) indicating that his witness [Mr A] had previously sponsored [Mr C] for a partner visa.  He confirmed he understood this information as well as the country information I had mentioned regarding conditions in Nepal for homosexuals.  I explained that the information was important because it could lead to a conclusion that he was not homosexual in his sexual orientation and that he had simply advanced this claim because he believed that his previously-claimed fear of harm from Maoists was an insufficient basis to achieve the grant of a protection visa.  It could also lead to a conclusion that he would not be at risk of harm as a homosexual in Nepal and would not require Australia to give him protection.  I explained that the country information was also important because if I were to accept that he was, in fact, homosexual, I might conclude that this would not expose him to significant harm on return, including through pressure from his family for him to marry a girl against his will, meaning that Australia would not have an obligation to protect him.  He confirmed he understood why the information was important.

3. Pursuant to s.424AA I invited the Applicant to comment on all this information or respond to it, explaining that he could do so at once, at a resumed session of the hearing or in writing, and that he could have further time for these purposes if required.  In consultation with his representative he indicated that he wished to respond in writing and he was given until 10 July to do so.

4. Asked if there was anything else he wished to talk about the Applicant responded that he had nothing to add.  He said his relationship with [Mr A] was very deep and they did not want to leave each other.

5. On 19 July 2016, after an extension of time was agreed to allow a response, the Tribunal received a submission from the representative covering a brief statement signed by the Applicant on that day, in the following terms:

   I confirm that I am not sure of what he said to me about his relationship with [Mr C] but I think he might have told me about this when I got drunk so I cannot recall it.

   I confirm that I told everything according to my recollection and I believe [Mr A] provided different evidence compared to me due to his poor memory.

   It is true that I have a sexual and partner relationship with [Mr A] and it may be that [Mr A] had casual sexual or other forms of relationship, but my relationship with [Mr A] is a genuine and permanent relationship. 

   I said I was a member of the Party and I said I did not hold any position officially.  I said in the statement that I was the [Position 1] of the Party in the village and it was not official.

   In my original PV application form, I did not mention the incidents regarding abduction and the fight with the Maoist because I thought that I could put these in the statement or elaborate at the interview, so I told it at the interview and I also put it in the statement.

   I said at the first Tribunal hearing, I was as supporter of the Party when I was studying in year [grade].  After Year [grade] I became involved in politics.

   I did not know that I could apply for a protection visa and I did not have a [temporary] visa and I thought that I was allowed to stay in Australia until my [temporary] visa would expire.

   FINDINGS AND REASONS

6. On the basis of his passport, which he submitted at the hearing, I accept that the Applicant is a citizen of Nepal and that his identity is as he claims it to be. 

7. The Applicant claims to fear harm at the hands of Maoists in Nepal, as a result of his previous membership and support for the Communist Party of Nepal- United Marxist Leninist.  He also claims to fear that he will be killed or physically harmed because of his homosexual sexual orientation, that he will be forced by his family to marry a girl and that he will be unable to live with his current partner.

8. Having considered the Applicant’s testimony at the hearing before me together with the other information before the Tribunal I have strong doubts as to the credibility of his claims to fear harm in Nepal, for the following reasons.

   Maoist threat

9. In his original protection visa application and statement the Applicant claims, in summary, that he became attracted to the ideology of the CPN-UML in mid-2006, after leaving school.  He joined the party in December 2006, shortly after he turned [age], and was involved in a range of supporting activities in his district, including by attending meetings and rallies, distributing leaflets and encouraging villagers to join.  He became [Position 1] of the party in his village.  He would speak up about the illegal activities of the Maoists and on one occasion in May 2008 led a group of villagers who beat up some of their cadres when they tried to abduct a local businessman.  These activities earned him the enmity of the Maoists and in May 2008 they came looking for him at his home.  He was forced to flee to Kathmandu where he remained in semi-hiding with his [relative] until October 2008 when he fled to Australia for safety.

10. As put to the Applicant at the hearing before me there are obvious inconsistencies in the accounts he has given at various times of his alleged involvement with the CPN-UML. 

    ·In his first protection visa application form, when invited to explain why he left Nepal, he mentioned his CPN-UML membership and claimed to have been targeted by Maoists because he actively criticised them for their unlawful activities.  In his written statement six months later he added the information that Maoists had abducted him from his school in [year] and that in May 2006 he was involved in a fight with them when he intervened to prevent the abduction of a local businessman, with the result that he had to flee to Kathmandu.  As put to him, these could reasonably be seen as important and memorable incidents, had they occurred, and it is difficult to understand why they would have found no mention whatsoever in the application form.  I have considered his response at the hearing – to the effect that he had simply omitted to mention the incidents when he was completing the application form – but I am not satisfied this explains his failure to mention such clearly significant matters when invited by the form to explain his reason for leaving his country.  I note that when this matter was put to him at the previous Tribunal hearing he offered the explanation that he omitted the incidents because he was under the impression that it would be more appropriate to mention them at his protection visa interview.  This is, essentially, the same explanation he offers in his statement of 19 July 2016 but I do not find either version convincing.  

    ·In his original protection visa application and his statement of [December] 2011 he said he had not been interested in politics during his school days and it was not until he left school, in July 2006, that he became attracted to the ideology of the CPN-UML.  His actual membership of the party did not commence until the end of 2006.  By contrast, at the previous Tribunal hearing he said he began to work for the party while he was still at school, in the middle of Year [grade].  When he was asked to comment on the discrepancy at the hearing before me his response was limited to saying that whatever he had mentioned in his written statement was true. 

    ·In some contrast to his earlier claims about his political activism, at the hearing before me he portrayed his CPN-UML involvement as having occurred at only a low level.  He was a simple party member whose role, initially as a schoolboy, was to discuss matters with small groups of others in the village.  He did not know much about the CPN-UML but was able to obtain information from party elders to pass on to others.  When I put to him that this was in conflict with his earlier claim to have been the local [Position 1] in the party he did not deny the claim but downplayed the significance of the position.

11. The Applicant was able to offer no convincing explanation for the lengthy delay in lodging his first protection visa application, some two and a half years after he arrived in Australia.  I am not satisfied that he can have been unaware for so long a period that it was possible for him to apply, particularly given his claim to have been living almost exclusively within the Nepalese community in Australia, among whom I consider there is an awareness of the availability of protection visas.  Even if he had been under the impression that he could remain in Australia until his [temporary] visa expired in May 2011, as he now claims, I believe he would most likely have realized that his immigration status was quite uncertain, given that his [temporary] visa was obtained using fraudulent documents and he did not – apparently – live with the person whom he pretended was his wife.  I find that his delay in lodging his application casts further doubt over the truth of his claim to have fled Nepal to seek protection in Australia because he feared he would be harmed by Maoists.

12. Given these inconsistencies, together with the lack of any substantiation for his claims of political activism in Nepal and the generally brief and uninformative nature of his oral evidence on the subject at the hearing before me I am not satisfied that the Applicant did, in fact, involve himself in the activities of the CPN-UML while he was in Nepal.  I am not satisfied that he was a member of the party or held the position of [Position 1] in his village, or that he supported it in other ways in his village or his district.  This being the case, I do not accept that he was targeted and intimidated by Maoists because of political activism, that he was involved in a fight with Maoists in his village or that he was forced to flee to Kathmandu because they came to his home looking for him.  Nor am I satisfied that it was because of a fear of harm at the hands of Maoists that he left Nepal to come to Australia.  It follows that I am not satisfied there is any reason to believe he would be at risk of significant harm from Maoists if he were to return to his village in Nepal.

    Fear of harm as a homosexual

13. In his second protection visa application the Applicant adds the claim that he fears harm in Nepal because his sexual orientation is towards other men.  He claims he had some limited homosexual contact in Nepal, which was discovered by his family, but hid the nature of his sexuality after he arrived in Australia until he met [Mr A] in December 2013.  He claims to be in a committed spousal relationship with [Mr A] and to live with him in an apartment in [Suburb 2].  [Mr A], who was previously granted a protection visa on the basis of his fear of harm in Nepal as a homosexual, is unable to return there, meaning their relationship would be split up if the Applicant was forced to return.  Additionally, in Nepal his family and relatives would harm him or force him to marry a girl.

14. I have considered the Applicant’s account of his past homosexual contacts in Nepal but I have concerns as to the credibility of his claims.  I am not satisfied it is plausible that if his family had become aware of his alleged attraction to other men and had tried to direct him along an exclusively heterosexual path by forcing him to marry a girl they would abandon this plan when he refused to submit and then raise the very large sum of money required to allow him to move to Australia on the basis of a fraudulent marriage to a person who was the holder of a [temporary] visa.  As noted above, I do not accept that they did so for the alternative reason that he was at risk of harm from Maoists.  In this context it also seems difficult to understand why, if the family hoped his alleged attraction to other men could be in some way ‘cured’ by either marriage or constant hectoring, as he suggested at the hearing, they would choose to send him off to a country such as Australia where attitudes toward sexual orientation could only be seen by them as less strict than those existing in their village and where the chances of his adopting a lifestyle in accord with their values could not reasonably be expected to have appeared to them as more than doubtful.

15. The Applicant has provided no substantiation for his claims concerning the development of his sexual identity after arriving in Australia, apart from [Mr A’s] statutory declaration of 8 January 2015 and his evidence at the hearing.  Having compared this evidence against that of the Applicant I consider there are inconsistencies that cast doubt over the truth of the Applicant’s claims, as follows:

    ·The Applicant’s evidence at the hearing was that [Mr A] had never told him about the nature of his former relationship with their flatmate [Mr C] and he had never asked [Mr A] about it.  By contrast, [Mr A] said he had told the Applicant about the relationship, including that it had previously been a sexual one and that he had sponsored [Mr C] for a partner visa.  When this was put to the Applicant for comment he adjusted his evidence by saying that [Mr A] had in fact spoken about it, although not in detail.  He then advanced an alternative explanation, to the effect that [Mr A] may have explained it but they were both drunk at the time.  This is the version which he reiterates in his statement of 19 July 2016.  Having considered these explanations, however, I am not satisfied they account for the discrepancy in their evidence at the hearing, a discrepancy which is not marginal or insignificant in the context of what is said to be a strong and committed partner relationship which has been maintained over the last two and a half years, during which time [Mr C] has been a constant presence in their dwelling. 

    ·The Applicant and [Mr A] gave quite different accounts of what was said to have been their most recent public activity together on the preceding Saturday, just three days before the hearing.  The Applicant described a visit to a club where they both drank beer, watched soccer then returned home by taxi at about 9 pm.  [Mr A] said they drove to [Suburb 3] in the Applicant’s car, drank coffee and went to [Suburb 4] in the early afternoon where the Applicant dropped him off at a pub as he had something else to do.  I have considered the explanation offered by the witness and the Applicant for this inconsistency – to the effect that they have memory problems and the witness drank alcohol while on [specified] medication, but I note that these explanations were offered only after the inconsistencies were put to them and their evidence on the issue up to that point was not qualified by any suggestion that their memories might be unreliable.  I do not find the explanation convincing and I consider that the discrepancy casts doubt on the truth of the Applicant’s claim that he is in a close sexual and emotional relationship with [Mr A].

16. As also put to the Applicant at the hearing, I consider it generally implausible that he and [Mr A], who are claimed to be bound together by a strong sexual and emotional relationship, are presently sharing a two bedroom apartment with a man who was previously in just such a relationship with [Mr A], a relationship which was so close that [Mr A] sponsored him for some time for a partner visa.  I have considered [Mr A’s] explanation for this arrangement, to the effect that [Mr C’s] sexual orientation underwent a change so that he was no longer exclusively homosexual and was ‘a little bit’ involved with girls, a change which led [Mr A] to end his sexual relationship with him (and withdraw the visa nomination) before he met the Applicant.  [Mr A] further suggested that as [Mr C] was formerly homosexual he understood the relationship between [Mr A] and the Applicant – they ‘were all on the same page’ - but had no interest of any kind in it.  I am not persuaded by these explanations, however, and I consider that the alleged nature of the household is implausible in the circumstances described by the Applicant and the witness.  While I accept that the Applicant may live at the same address as [Mr A] and [Mr C], I find the evidence presented at the hearing reinforces my doubts as to the truth of the Applicant’s claims concerning his relationship with [Mr A] and I am not satisfied that his status in the household is anything more than as a flatmate.  Nor am I satisfied that any weight can be placed on the witness evidence of [Mr A] on this issue.

17. Taking these considerations together I am not satisfied there is any credible evidence before the Tribunal supporting the Applicant’s claims that his sexual orientation is towards other men.  I am not satisfied that his claims to have had homosexual encounters in Nepal are credible.  Nor do I accept that he commenced a sexual relationship with [Mr A] or is in such a relationship with him at present.  I am not satisfied there is any credible evidence before the Tribunal to indicate that he would identify as a homosexual if he were to return to Nepal or that he would engage in homosexual activity there.  It follows that I do not accept he would be at risk of harm, either from members of his own family or from others in society, as a person who was, or who was believed to be, a homosexual.

    SUMMARY

18. Having considered the Applicant’s claims individually and cumulatively I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to Nepal, there is a real risk he would suffer significant harm in terms of s.36(2)(aa) of the Act from Maoists, his family members or others in society because of a past or present involvement with the CPN-UML or a sexual orientation toward other men.  Specifically, I am not satisfied there is a real risk he would be arbitrarily deprived of his life, the death penalty would be imposed on him, he would be subjected to torture, or he would be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment.  He has not raised any other matters which would be relevant to an assessment of Australia’s complementary protection obligations in his case.

19. As I am not satisfied that the Applicant’s is in a sexual or emotional relationship with [Mr A], or that he is anything more than a flatmate in [Mr A’s] [Suburb 2] apartment, I am not satisfied that the Applicant meets 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

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

    Andrew Mullin

    
    

    Member