1502803 (Refugee)

[2016] AATA 4172

1502803 (Refugee) [2016] AATA 4172 (28 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502803

COUNTRY OF REFERENCE:                  India

MEMBER:Brendan Darcy

DATE:28 July 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 28 July 2016 at 1:34pm

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 the Republic of India, applied for the visa [in] May 2014 and the delegate refused to grant the visa [in] January 2015.

3. The applicant appeared before the Tribunal on 19 July 2016 to give evidence and present arguments.

   RELEVANT LAW

4. 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

5. 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).

6. 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.

7. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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

18. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The applicant claims to be born in Vadodora in the Indian state of Gujarat on [date] and to be a citizen of the Republic of India. The applicant submitted a certified copy of his birth certificate and his valid passport to the Department indicating that the applicant is a citizen of India.

20. The applicant claims to be able to speak, read and write in English, Gujarati and Hindi; that his ethnicity is Gujarati; that his religion is Hindu; and that his caste identification is [name].

21. The applicant claims both his parents are extant and living in Vadodora; that his father was a former [occupation] at a [workplace] but is now a pensioned retiree in his [age]; and that his mother is in her [age].

22. The applicant has never married or has been engaged and has no children.

23. The applicant claims to have [a sibling] who qualified for and is [occupation].

    Visa History

24. The applicant was granted a class TU subclass 573 student for higher education [in] November 2007. The visa was valid until [September] 2011. The applicant applied to study for a [tertiary course].

25. [In] February 2008, the applicant arrived in Australia.

26. [In] March 2008, the applicant applied for another class TU subclass 573 visa that was granted that day and was valid until [September] 2011.

27. [In] September 2011, the applicant submitted an application for a class TU subclass 572 visa for vocational education and was granted an associated Bridging visa with a work limitation.  [In] October 2011, the applicant submitted a 956 form notifying the department that his migration agent was from [agency].

28. [In] January 2012, the student visa application was refused. [In] February 2012, the applicant appealed the decision to the Tribunal, differently constituted and on 6 September 2013, the MRT affirmed the Department's decision. As discussed during the hearing, the applicant did not attend the scheduled hearing in this instance.

29. [In] October 2013, the applicant submitted an appeal to the Federal Court and was granted an associated bridging visa without work rights. According to the decision record which was submitted by the applicant to the Tribunal, the applicant continued to be assisted and represented by [agency] throughout the appeals process. [In] April 2014, the applicant withdrew his appeal to the Federal Court.

30. [In] May 2014, the applicant's bridging visa expired. After becoming an unlawful non-citizen, the applicant submitted an application for a Protection visa [in] May 2014 and was granted an associated Bridging E visa without work rights after complying with a request to approach the Compliance counter to obtain a Bridging visa [in] March 2014. 

    Written Claims for Protection

31. The applicant provided attached to his 866 application for protection a statement of claims which was not signed. Below is a summary of those written claims:

    The applicant is from Gujarat where violence between Muslims and Hindu has occurred in the past, including when 1000 or more people were killed during the 2002 communal riots;

    ·In 2006, this history of religious tension erupted in Vadodora and the police shut down the city for a few days to stop the violence;

    ·[In] May 2006, the police released a curfew for a few hours and the applicant took the opportunity to go to the market for groceries;

    ·Suddenly some people came with masks on their faces; they had petrol bombs, sticks and other things. According to the applicant, within no time, a mob started attacking and with other people, the applicant runs around;

    ·The applicant claims he saw one man throwing a petrol bomb at the applicant’s direction and then claims he moved quickly to avoid the petrol bomb. However, it is claimed the petrol bomb hits a young Muslim child whose whole body was caught on fire;

    ·The applicant claims he tried to help the boy but he could not save him; meanwhile a man from the other side of the road picked up a stick and run towards the applicant, hits the applicant and shouts “you, Hindu, killed my son and adds that he will not spare the applicant;

    ·The applicant claims he escaped from the scene but was later arrested for disobeying  curfew by the police, leading to short term detention;

    ·After the applicant’s release, the applicant was very scared, hid at home but eventually returned to [work];

    ·On his way home from the market, the applicant claimed he was attacked from behind and saw the same man who tried to kill him the other day before running to save himself;

    ·According to the applicant, he complained to the police but they ignored him. As his family were so scared for him they suggested he leave his home city for Ahmedabad where he stayed with his [relative];

    ·The applicant claimed that same Muslim man has not stopped searching for him according to his friend and so he decided to leave for Australia;

    ·The applicant claimed that the police cannot do anything for him as the two leading political parties in India are supporting Hindus and Muslim communities and never think about the common people;

    ·The applicant claims that he is scared the Muslim people in his village will kill him for being involved in the death of the Muslim boy during the religious riots and because he is Hindu.

    Documentary Evidence

32.    The applicant submitted a number of documents for the Department in support for his claims for protection including:

·Certified copy of a letter dated [in] September 2008, from [a] counsellor at [a] University. In her letter [the counsellor] indicates that the applicant was suffering from stress due to the breakdown of his relationship with his girlfriend, his grandmother had passed away and his mother had been in an accident and at that time she was unable to walk;[1]

·Certified copy of a letter dated [in] August 2011, from a counsellor at [a] Health Centre. In that letter, the counsellor states that the applicant presented at the health service in early June 2011 with anxiety and stress as a result of his relationship breakdown and family difficulties;[2]

·Uncertified copy of a First Information Report dated [in] May 2006, which indicates that [in] May 2006, the applicant entered a curfew area without a curfew pass and was arrested;[3]

·Various reports from news websites including The Time of India, India Today, BBC News and The Milli Gazette (an Indian Muslim English Newspaper) regarding the riot and police response in Vadodara in 2006.[4]

[1] DIBP Folio 105

[2] DIBP Folio 104

[3] DIBP Folio 98-103

[4] DIBP Folio 73-97

1. [In] October 2014, the applicant was interviewed in relation to his claims for protection. The applicant's nominated representative did not attend the interview and the applicant requested that the interview proceed without the migration agent.

2. [In] January 2015, the Department refused to grant the applicant a protection visa. [In] February 2015, the applicant exercised his right to have that refusal decision reviewed by applying the Tribunal, differently constituted.

   Oral Evidence at the Schedule Hearing

3. The applicant appeared before the scheduled hearing on 19 July 2016 and made an oath as a Hindu to answer the Tribunal’s questions truthfully.  The applicant did not respond to the hearing invitation dated 7 July 2016 at any time. At the hearing, the applicant was asked by the Tribunal whether he wanted to proceed without an interpreter in the Gujarati and English languages and responded that he was comfortable in conducting the hearing in English without an interpreter’s assistance.

4. The applicant claimed at the hearing that he completed to the equivalent of year [grade] in education in Gujarat but was unable to attend higher education in India due to financial restrictions. The applicant claimed that he worked in [a certain field] and was earning about [amount] Indian rupees per month and that he also worked [in a] shop, both on a part time basis.

5. The Tribunal asked if the applicant had many friends when he was in India and he replied that he was quite introverted and did not go out socially much.

6. With regards to migrating to Australia, the applicant said he arrived in Australia in 2008 to complete a [tertiary course]; that he completed on semester but was unable to complete the next one as he could not afford the fees and explained that he did not have the financial capacity to continue his studies as his family friends who had provided the financial capacity statement for the applicant’s student visa application asked for the money to be returned. The applicant claimed that he asked his immediate and extended family back in India for support but were unable to find that support.

7. The applicant claimed he came to Australia for safety and that he had a fear of persecution. When the Tribunal enquired about his knowledge of protection visas, the applicant responded that he had only heard about them in 2014 around the time of withdrawing his Federal Court appeal of his refused student visa.

8. The applicant was asked if there were any articles or news reports about a young Muslim boy during the 2006 riots as the Tribunal was unable to identify any mention in the applicants’ submitted news reports from credible independent sources. The applicant said that he was unable to also and explained that the media organisations were controlled by the major political parties so there was no reporting of the incident. The applicant added that hundreds were killed; however the Tribunal noted that only killing arose from communal violence according to the news reports submitted by the applicant.

9. Asked about s.36(3) and if the applicant had any reasons for not resettling in Nepal to be safe, the applicant expressed surprise about this matter and said he only became aware of the letter in the last few days. The applicant stated that he knows very little about Nepal other than it is next to his country and it is a Hindu country. The applicant added that while he could go to Nepal he had no money and no desire to live there. The applicant was reminded that the matter was raised in the letter of invitation to attend the hearing.[5]

   [5] AAT Folio 22-23

10. The applicant was asked if he wanted to provide any additional information to substantiate his claims for protection; the applicant said he did not. At the time of decision the Tribunal has not received any further submissions.

    ASSESSEMNT OF CLAIMS AND FINDINGS

    Country of Reference

11. The applicant has claimed to be a citizen of India.  The Tribunal cited the applicant’s valid passport which was issued by the authorities in the Republic of India – copy of which is on the Tribunal’s file. With no evidence to the contrary, the Tribunal finds the applicant is a national of India for the purposes of the Convention and that his country is the receiving country under s.36(2)(aa) and s.5 of the Act.

    Credibility Findings

12. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that his for the reason’s claimed.  Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’.  It remains for that the applicant to satisfy the Tribunal that all the statutory elements are made out.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.

1. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei RongandPam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

2. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

3. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

4. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

5. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

6. The Tribunal has also considered the published guidelines of the Administrative Appeals Tribunal in relation to credibility:

   9. Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.

   10. The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.

   11. In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true. If, on the other hand, the tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct.3 The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists.4 However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.

7. In his written claims, the applicant has made very limited, vague as well as unsubstantiated claims to fearing his return to India; including the vague references to his fear of being harmed or even killed by an aggrieved Muslim man who has accused the applicant of killing his son and that he was forced to relocate from Vadodara to Ahmedabad for his safety before departing for Australia.

8. At the hearing, the Tribunal discussed extensively the applicant’s visa history and sought greater details about the incident in 2006 which led him to depart India and whether those fears were still relevant given the passage of time and the localised nature of the fear he claimed. The applicant and the Tribunal also discussed the applicant’s documentary evidence and the country information he provided. The Tribunal found that the spoken English fluency of the applicant to be able to answer challenging questions competently and clearly.  Overall, the Tribunal found the applicant’s claims to be critically limited and implausible and of particular concern was his oral testimony about the delay in applying for protection and the unsupportive nature of the applicant’s submitted documentary evidence and country information. 

9. There are, however, a limited number of claims regarding the applicant and his circumstances that the Tribunal accepts as credible.  The Tribunal accepts that:

   ·     The applicant was born in Vadodara in the Indian state of Gujarat in [year] and lived in Vadodara for most of his life prior to departing to Australia;

   ·     The applicant was brought up and continues to identify with the Hindu faith tradition and that he belongs to the [name] caste;

   ·     The applicant has never married or has been engaged and has no children;

   ·     The applicant speaks, reads and writes English, Hindi and Gujarati and his English capacity did not require an interpreter as he presented to the Tribunal at the hearing as a competent speaker in the English language who could understand complex questioning;

   ·     The applicant’s highest level of education  was year [grade] equivalent in India and that he did not complete any studies while in Australia;

   ·     The parents and sibling of the applicant all live in the applicant’s home city of Vadodora, the Indian state of Punjab;

   ·     The father of the applicant was a former [occupation] for a [workplace]; is retired; receives a pension; is frail and is aged in [age]. The Tribunal also accepts that his mother is aged in her [age]; and

   ·     The applicant accepts that he has [a sibling], is qualified as and works as [occupation] and has [own] family responsibilities.

10. The Tribunal also accepts that the applicant’s documentary evidence with a First Information Report from the local Gujarati police in Vadodara indicates the applicant was apprehended and detained overnight for breaking curfew [in] May 2006. The Tribunal also accepts the applicant’s claims at the hearing that he was released without harm by the police.

11. On the other hand, the Tribunal had considerable credibility concerns about the applicant’s overall claims for protection.  In particular, the Tribunal was troubled by the applicant’s explanations for delaying in applying for protection despite being in Australia from nearly six years. In this regard, the Tribunal has specific credibility concerns when it was claimed that:

    ·The applicant had never heard of protection visas despite claiming the same firm of  migrant agent or lawyer for advice and assistance since 2009;

    ·The applicant’s same migration agents or lawyers would have withheld information about the range of migration options available to the applicant, including applying for a protection visa in 2009; in 2011 when the applicant applied for student visa,  in 2012 when appeal the refusal decision regarding his student visa; in 2013 when he appealed the Tribunal’s decision to affirm the delegate’s refusal decisions; in 2014 when the applicant further appealed to the Federal Court;

    ·The applicant did not attend a Tribunal hearing for his refused student visa applications as he advised not to attend. This is because the applicant continued to use same firm for migration advice and assistance for subsequent matters including his application for a protection visa;

    ·The applicant had never been aware of protection visas being available to Indian nations in Australia as he does not read the news or the internet and that it was never raised earlier from other Indian nations living in Australia to him until 2014, despite having access to the internet and being able to read English. In this regard, the Tribunal finds this cumulatively implausible; and

    ·The applicant only became aware that Indian citizens in Australia were eligible for protection visas when a fellow Indian national informed him in 2014. This credibility concern is generated as the applicant claimed that despite being not being told by more than one migration law firms at earlier opportunities about protection visas he continued to use the same firm that had withheld information from him and that had poorly advised him to attend a scheduled hearing for the review of his refused student visa. It is not plausible that all migration options based on his claimed circumstance would not include protection visas.

12. The Tribunal notes that it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). Without making an overall credibility finding about the applicant’s claims, the Tribunal finds the applicant’s specific explanations about his visa history to have been internally inconsistent and implausible and demonstrated a lack of urgency given his claimed fears of persecution. As stated during the hearing, it invited the Tribunal to consider that that the applicant did not have a genuinely personally held fear of persecution for any Convention reason, including his religion, either at the time of his departure from India, at the time of application, now or into the reasonably foreseeable future.

13. Of further credibility concern to the Tribunal was the applicant’s claim that a young boy was killed by a petrol bomb and that the applicant was falsely accused of killing that boy of a Muslim man during the 2006 Vadodara communal riot for the following reasons:  

    ·None of the submitted news articles submitted by the applicant indicate that a young boy had been killed by a petrol bomb arising from these riots;

    ·None of the submitted news articles from India’s Muslim new organs mention that a young boy had been killed by a petrol bomb arising from these riots;

    ·None of the submitted news articles submitted by the applicant support the applicants’ claims that hundreds were killed during the riots as the country information indicates that one killing of an adult male occurred in mob violence and three to four deaths occurred when the police patrolled the streets to curb further communal violence;

    ·The Tribunal was unable to locate any independent country information to substantiate the applicant’s claims regarding the riots;

    ·Independent country information including the most recent DFAT country report on India indicate that the applicant’s country of origin and reference is a democratic country with a reasonably robust and free press that would not suppress any newsworthy item involving the death of a young boy during communal violence;

    ·The applicant was suffering anxiety or depressive symptoms arising from his fears of persecution back in India as the submitted evidence provided by counsellors does not mention the applicant was falsely accused of murder, that he had been harmed in the past or that an individual had threatened to kill him if he returns to India. These omissions indicate the applicant may have suffered from psychological symptoms but not for the reasons claimed by the applicant;

    ·Although the applicant mentioned the Muslim man wearing traditional pyjama and hat in 2006, he was unable to provide any other specific details such as the names of the Muslim man who accused him of killing the young boy or the name of the killed boy, despite incident occurring in 2006.

14. The abovementioned concerns regarding unsubstantiated and vague claims invites further credibility concerns about the applicant’s written and oral evidence that the applicant was involved in any incident to do with the 2006 communal riots in Vadodara in the Indian state of Gujarat beyond being apprehended and detained for breaching curfew by Gujarati authorities in 2006. These adverse credibility concerns include that the applicant was accused, hit and threatened by the killed boy’s father in two face-to-face incidents, as claimed; that the applicant fled his home city for Ahmedabad to live with extended family members before departing for Australia for the reasons claimed; the claim that the same Muslim man was seen loitering near the applicant’s family home in Vadodara at any time since his departure from India; and that the applicant has any genuine well-founded fear of persecution of any Muslim man or community within his home city as claimed.

15. The Tribunal has considered if the applicant was provided with a meaningful opportunity to give evidence and present arguments throughout the hearing as the applicant claimed he had been living under considerable psychological stress; that he had loss of sleep and was naturally introverted. The applicant provided some documentary evidence of counselling for psychological matters in the past and told the Tribunal had taken medication to treat these symptoms in the past. The Tribunal also notes that he has stated to the Department in the past of his feelings of [hopelessness] around the time of applying for a protection visa.[6] The applicant added that he was not been medicating recently or at the time of the hearing.  The Tribunal understands that appearing before the Tribunal may be stressful; however the weight given to inconsistent claims based a lack of psychological wellbeing by the Tribunal is not considerable. While the applicant presented as withdrawn, he was able to clearly answer a wide range of challenging questions with little hesitation over more than two hours of oral evidence, strongly indicating his relative emotional resilience by meaningfully engaging the Tribunal’s proceedings. Accordingly, the Tribunal is not satisfied the abovementioned inconsistencies at the hearing were directly related to the applicant’s psychological well-being and finds the specific inconsistencies were due to being overall weakness of his claims for protection. The Tribunal is satisfied that the applicant was given a real and meaningful opportunity to give evidence and present arguments in relation to the issues arising from the decision under review in a manner that was consistent with s.425 of the Act

    [6] DIPB Folio 186

16. However, it is not necessary of the Tribunal to decide this application for review based on the applicant’s overall lack of credibility, in respect to finding that he has a well-founded fear of persecution for a Convention reason or that he has a real fear of significant harm pursuant of s.36(2)(aa), if returned to India, now and into the foreseeable future. 

    Internal relocation

17. At the hearing, the Tribunal asked the applicant why he could not relocate to another area within the Indian state of Gujarat or to another state within India. Given the applicant claimed that he spent more than a year in the city of Ahmedabad in Gujarat and experienced no past harm in that city, the Tribunal sought explanations why the applicant could not return to that city or another city. The applicant claimed the alleged persecutor was seen looking at his family’s house in Vadodara; that he was in hiding when he was in Ahmedabad and could not work; and that his whereabouts would become apparent to the Muslim who sought the applicant. The Tribunal enquired that how the Muslim man would find him; the applicant did not advance any explanation, hypothetical, speculative or otherwise, as to how a third party outside his family would come to know of his whereabouts.

18. The Tribunal also heard from the applicant that if he returned to India he would have to return to his home town to visit his parents; the Tribunal asked if the applicant was willing to move to Australia to be safe and that this was encouraged by his parents, there would be no requirement to return. The applicant insisted he would need to return in order to assist his parents who are elderly. Again the Tribunal enquired if that was the case, it might indicate to it that the applicant did not have a personally held fear of serious or significant harm as claimed. The applicant added that he also feared not being able to find work because he does not have a qualification.

19. The Tribunal finds the applicant’s responses to questions about relocation and its reasonableness to be vague and lacking in detail. The explanations also invited to the Tribunal to consider the applicant does not have a genuine fear of persecution if he returns to India because he claimed he would visit the location in which he claims his alleged persecutor had been seeking him. The Tribunal does not accept that the explanations that the applicant would be discovered by a Muslim man if he returned to another part of Gujarat or anywhere else in India as there is not a real chance of anyone informing the allegedly threatening Muslim man from Vadodara. This finding is based on the applicant’s own testimony in which the applicant claims he spent more than a year in Ahmedabad without being located and the improbability that those who care for the applicant would assist, even inadvertently, the alleged perpetrators in harming the applicant. It does note however that the applicant does have some mental health issues around anxiety and loss of sleep but that these challenges are not severe, as discussed above.

20. Furthermore, the Tribunal does not accept there are no barriers to the applicant in finding work consummate with his work experience, his multi-linguistic skills and his relative young age.  The Tribunal also notes he has no dependents or spouse that would affect his capacity to subsist if he were to be relocated to another part of India.

21. The July 2015 DFAT Country Information Report points out that often there are practical barriers to relocation. It states the following:

    5.17 In practice, options for internal relocation can be limited by a range of factors. These include language barriers; a lack of documentation; lack of familial or community networks; lack of financial resources and employment opportunities; and discrimination based on ethnicity, religion, caste or gender.

    5.18 Language barriers can be among the most significant obstacles faced by those seeking to relocate within India. There are therefore more internal relocation options for India's sizable bilingual and multi-lingual population. According to the 2001 census, around 25 per cent of the population reported being able to speak more than one language and around nine per cent more than two languages.

    5.19 Without proof of identity and local residence, internal migrants can be excluded from public services and social security programs. As a result, they often face barriers in accessing subsidised food, housing and banking services until they can establish identity and local residence. Ethnic, religious or caste identity may provide a basis of anti-migrant sentiment and a limiting factor for internal relocation. Single women, women with children or victims of familial crime may find relocating within India difficult due to the need to provide details of their husband's or father's name in order to access government services and accommodation.

    5.20 Despite these difficulties, millions of Indians successfully relocate within India either temporarily or permanently every year, and it is possible to obtain work in the large informal sector without papers. In general, DFAT assesses that there are a range of viable internal relocation options for individuals seeking protection from discrimination or violence.

1. While the Tribunal does not consider that the above individual circumstances, assessed in the light of the country information, necessarily would make it unreasonable, in the sense of being impracticable, for the applicant to relocate, it is not necessary to decide the issue on these matters, because the Tribunal has concluded that the applicant have the right to enter and reside in Nepal where there is third country protection.

   Third Country Protection

2. Under section s36(3), the Tribunal can consider that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, in a country apart from Australia, including countries of which the non-citizen is not a citizen. 

3. As notified to the applicant in the hearing invitation and discussed at the scheduled hearing, a key issue in this case may arise from the international bilateral agreement between India and Nepal known as the Indo-Nepal Treaty of Peace and Friendship of 1950.

4. Although the applicant claimed he did not receive the invitation to attend the scheduled hearing, the Tribunal notes he claims he received other email correspondence from the Tribunal. In examining the Tribunal file, the Tribunal does not accept the applicant was not properly notified about the hearing as required by s414A and s441A of the Act and is satisfied the applicant was provide sufficient opportunity to consider this key issue.

5. The Tribunal considered restricting its finding based on the lack of credibility of the applicant’s claims of having a well-founded fear of persecution or having a real risk of significant harm, if the applicant were to be returned to his country of reference, as required by s.36(2).  However, in this case, the Tribunal has decided to restrict its findings to the operations of s.36(3).

   Section 36(3) - right to enter and reside in Nepal

6. Section 36(3) of the Act provides as follows:

   36 Protection obligations

   (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

7. Article 7 of this Indo-Nepal Treaty of Peace and Friendship of 1950 provides that Indian nationals such as the second applicant can enter and reside in Nepal, on the basis that:

   [t]he two governments agree ‘to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature.

8. In MIAC v SZRHU[7] (SZRHU) the Full Court of the Federal Court held that the correct test for section 36(3) was that set out by Allsop J (as he then was) in V856/00A v MIMA (V856/00A)[8], that there is

   [7] MIAC v SZRHU [2013] FCAFC 91.

   [8] V856/00A v MIMA [2001] FCA 1018 at [31], 114 FCR 408 at 419.

   no reason to restrict the meaning of the word ‘right’ to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement, or to exclude from the meaning the notion of liberty or permission or privilege which does not give rise to any particular duty upon the state in question.

9. In SZRHU the Court was considering the operation of section 36(3) in relation to a Nepalese national’s right to enter and reside in India under the Treaty, but the Tribunal sees no reason why the reasoning of this decision should not apply equally to the case of an Indian’s right to enter and reside in Nepal. Buchanan J held the correct course for the Tribunal, differently constituted, to adopt is as follows:

   [The RRT] should pay regard to the actual terms of the Treaty and should also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test.

10. No information was located indicating that there are any practical barriers for Indian citizens being able to travel to and enter Nepal.[9] The Nepal Immigration website (a Nepali government website) provides the following information on the documentation required for Indian citizens to travel to Nepal.

    [9] Searches conducted on CISNET, think tanks, academic journals, open source search engines, human rights organisations, non‑government organisations, and international news outlets.

    What documents are necessary to enter Nepal

    To allow Indian citizens to make travel on the basis of the following document:[10]

    [10] Nepal Immigration n.d., ‘Information for Indian Citizens’ < Accessed 6 January 2014.

    ·     Passport, or

    ·     Driving license with photograph, or

    ·     Identity card with photograph issued by a governmental body, or

    ·     Ration card with photograph, or

    ·     Voter identity card with photograph, or

    ·     Registration certificate issued by the Indian embassy to the Indian citizen staying in Nepal, or

    ·     Ad hoc/temporary identity card issued by the Indian embassy to the Indian citizen in the event of exigency, or

    ·     Document with photograph and setting out identity, issued by the sub-divisional magistrate or authority there above.

11. The website of the Embassy of Nepal in New Delhi, India, states the following regarding Indian nationals entering Nepal by air at Tribhuvan International Airport, Kathmandu:

    Visa for Indian Nationals:

    Effective from 1st October 2000 an Indian citizen over the age of 10 years travelling between India and Nepal by air would have to keep in his possession any of the following documents to establish his/her identity as an Indian citizen.

    1. Valid Indian passport; or

    2. Photo identity card issued by the Government of India, or any State Government or Union Territory Administration in India, or the Election Commission of India; or

    3. Emergency certificate issued by the Embassy of India in Nepal.[11]

    [11] Embassy of Nepal, New Delhi n.d., ‘Visa Information’ < accessed 6 January 2014 .

12. At the hearing with this Tribunal, the applicant presented a current Indian passport valid until the year 2025. The applicant did not claim that he would face any legal hurdles if he were to try to enter and reside in Nepal.

13. According to the 2013 article ‘Nepal’s Border Relations with India and China’, published in the Eurasia Border Review, ‘there is no need of passport or visa formalities among the border inhabitants or other nationals of Nepal and India. The nationals of one country can enter into the other country through the border not merely through the checkpoints but through any point’.  This article states that while there are 22 official checkpoints along the Nepal-India border, citizens of Nepal and India ‘can cross over the border without any restriction from any point’. Nationals of other countries ‘require both an entry and exit visa and they must cross over the border through six immigration points’.  The article also comments on the ability of Nepalese and Indian citizens to escape from one country to the other, stating that when ‘there is any political upheaval in one country, people easily escape by crossing over the border’.[12]

    [12] Jah, H 2013, ‘Nepal’s Border Relations with India and China’, Eurasia Border Review, Spring, p. 63 Accessed 6 January 2014.

14. A 2012 book chapter titled ‘Nepal: Issues and Concerns in India-Nepal Relations’, sourced from the Indian Institute for Defence Studies and Analyses  publication India’s Neighbourhood – Challenges in the Next Two Decades and written by NiharNayak,  also provides information on the Nepal-India border. This article refers to the ‘open border and 26 transit points’ between Nepal and India, and notes that ‘[t]housands of Nepalese workers … cross the border without any documents at any point of the border in search of jobs’. The article also notes that a lower ‘number of Indian workers go to Nepal in search of jobs’, and comments on the ‘absence of passport and visa requirements’ for nationals of India and Nepal travelling between the two countries. Further, the article states that ‘Indian Maoists, illegal armed groups operating in the Madheshi region, and organised criminal gangs take advantage of the open border and take shelter on either side to evade the law enforcement agencies of respective countries’. The article does not comment on the ability of individuals fleeing threats to seek shelter on the other side of the border.[13]

    [13] Nayak, N 2012, ‘Nepal: Issues and Concerns in India-Nepal Relations’, in Dahiya, R & Behuria, A (eds), India’s Neighbourhood – Challenges in the Next Two Decades, Institute for Defence Studies and Analyses, Pentagon Press, pp. 137-162, p. 148 Accessed 6 January 2014.

15. A December 2013 report from The Hindu notes a crackdown by Indian security forces on border crossings at the Birganj (Nepal) – Raxaul (India) border crossing point. The crackdown does not, however, apply to Indian citizens crossing into Nepal, but rather on traders from both sides of the border who attempt to buy bulk goods and return them to their home country to sell, avoiding customs duty as this duty does not apply to goods purchased for personal use.[14]

    [14] Gaikwad, R 2013, ‘Locals suffer due to crackdown on Indo-Nepal cross-border trade’, The Hindu, 9 December < Accessed 6 January 2014.

16. The Nepali government’s published entry requirements for Indians make it clear that Indian nationals are free to enter Nepal upon presenting basic forms of photographic and other identification. Country information suggests that the privilege granted is in practice, rarely denied, and enjoyed by many Indians and Nepalis on a daily basis.

    Terms of the Treaty and administrative arrangements

17. A majority of the Full Federal Court in SZRHU found that the terms of the Treaty, while reflecting a mutual right of residence, did not appear to give rights of entry and so did not of itself support a finding of a right to enter and reside in India for the Nepali applicant.[15] However, the Court indicated that the Tribunal should pay regard to the actual terms of the Treaty and also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens satisfy the requisite test of a liberty, permission or privilege lawfully given, to enter and reside in the country.[16]

    [15] MIMAC v SZRHU (2013) 215 FCR 35, per Buchanan J at [88], Tracey, Robertson and Griffiths JJ agreeing.

    [16] MIMAC v SZRHU (2013) 215 FCR 35, per Buchanan J at [90].

18. The Full Federal Court remitted the case for reconsideration to determine whether the applicant in that case has a right of entry within the sense described by the Federal Court in V856/00A.[17]

19. Subsequent judgments of the Federal Circuit Court have upheld decisions in which the Tribunal, following this approach, has found that the administrative arrangements for entry, when read in light of the terms of the Treaty, amount to an entitlement to enter and reside consistent with that described in MIAC v SZRHU.[18]

20. Having regard to the information before it, the Tribunal finds that the applicant has a right to enter and reside, whether temporarily or permanently, in Nepal and the right is one that presently exists as he is an Indian citizen. The list of documents acceptable to the Nepali government for entry by Indians comprises a range of documents upon which the Nepali government will be satisfied that a person is in fact an Indian citizen. 

21. The Tribunal considers the presentation of the specified documentation is to complement and support the Treaty privileges conferred reciprocally and designed to allow their citizens to access the territory of the other country to allow them to enjoy those privileges, which as observed by Buchanan J, include a privilege of residence in the other country in Article 7.  Having regard to all of the evidence, the Tribunal is satisfied that the Treaty and the arrangements between India and Nepal establish a liberty, permission or privilege in favour of Nepali and Indian citizens, including the applicant, and satisfy the test articulated by Allsop J in V856/00A and endorsed by the court in SZRHU.

22. Having regard to this evidence, and to the terms of the Treaty cited above and the administrative arrangements for entry as summarised in the above country information, the Tribunal finds that the applicant has the right to enter and reside in Nepal for the purposes of s.36(3) and he has not taken all possible steps to avail himself of that right. 

    [17] V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408; [2001] FCA 1018.

    [18] SZTQO v MIBP [2014] FCCA 2636 (Judge Barnes, 30 October 2014); SZTPK v MIBP [2014] FCCA 2259 (Judge Driver, 31 October 2014) at [24]; SZRUT v MIBP [2015] FCCA 263 (Judge Street, 5 February 2015) at [30].

23. The Tribunal has considered the applicant’s evidence that he has never been to Nepal and that his claim that he could go there but had no money or desire to enter and reside in Nepal. The Tribunal finds that the applicant has not taken all possible steps to avail himself of the right which he currently has to enter and reside in Nepal for the purposes of s.36(3) of the Act.

    Section 36(4) – well-founded fear of persecution or real risk of significant harm in Nepal

24. Section 36(4) of the Act provides that s.36(3) does not apply where the applicant has a well-founded fear of persecution for the purposes of s36(4)(a) or there is a real risk of significant harm for the purposes of s.36(4)(b).

25. The Tribunal discussed with the applicant that he has the right to enter and reside in Nepal. The applicant expressed surprised but he was reminded that the matter raised in the letter of invitation dated 7 July 2016 and that the Tribunal had not tried to ambush or trap the applicant but gave him an early opportunity to consider the reasons he could not enter and reside in Nepal.  The applicant replied that he did not read the letter completely and stated that he would be safe in Nepal and believed that he needed a visa to enter into Nepal.  The Tribunal explained that this was not the case according to the country information and that the Federal Courts in Australia supported that view. At the hearing, the applicant was given several opportunities to nominate any other reasons he could not resettle in Nepal; he responded that that he did not know anyone there and had no money and that he had no desire to go there.

26. The Tribunal notes the applicant’s claim that he fears a Muslim man from his home town who blames the applicant for the tragic death of his son. The applicant did not claim during that same individual would harm him in Nepal. This strongly indicates to the Tribunal that the applicant does not have any fears, subjectively held or otherwise, in facing a real chance or real risk of harm with regards to resettling in Nepal.  

27. The Tribunal has considered if the applicant might face any other problems in Nepal such as barriers to employment or generating income. The Tribunal notes the applicant will have religious and other freedoms in Nepal and that he shares the same religion as most of the population of Nepal, namely Hinduism. The Tribunal notes the applicant has strong English language skills, a work ethic and has no immediate familial commitments to a spouse or dependents, although he stated he felt responsible for his elderly and increasingly frail parents. 

28. The US Library of Congress reports that there are common ethnic and linguistic identities that overlap the two countries’ borders.[19]  According to a 2014 report in The Hindu, cultural affinities and familial ties provide the comfort of familiarity and “perhaps also an instinct for fraternity” between India and Nepal.[20]  A separate Hindu article stated that the Indian-origin population in Nepal enjoyed extensive links with people in India including some “with questionable backgrounds”.[21]  The Hindu claims that “at the people-to-people level, relations between India and Nepal are closer and more multifaceted than between India and any other country”.[22]

    [19] ‘Foreign Relations – Nepal’ 1995, United States of America (USA): Library of Congress < Accessed on 22 April 2014, CISNET CX320142

    [20] ‘A new template for India-Nepal ties’ 2014, The Hindu, 2 August < Accessed on 8 September 2014, CISNET CX325516

    [21] ‘Where big can be bothersome’, The Hindu, 7 January <http:/ / Accessed 10 February 2014, CISNET CX317938

    [22] ‘A new template for India-Nepal ties’ 2014, The Hindu, 2 August < Accessed on 8 September 2014, CISNET CX325516

29. Following the culmination of the revolutionary war in 2006, there was a period described by the Kathmandu Post’s editor-in-chief (cited in the Hindustan Times) as the most “inclusive” in Nepali history.  He states, “the agenda of inclusion and representation of all minorities - ethnic, religious, linguistic and sexual - became embedded in the mainstream political narrative of the country”.[23]  

    [23] Dutt, Y. 2014, ‘A queer ban in India, gay and legal in Nepal’, Hindustan Times, 19 February < an-in-india-gay-and-legal-in-nepal/article1-1171673.aspx> Accessed on 2 July 2014, CISNET CX318232   

30. The aforementioned Hindu 2001 report stated that Indians owned commercial establishments in Nepal including enterprises and cinema halls. The report stated that “there now exists in Nepal a powerful infrastructure which can exploit the existing negativism against India”. The fact that anti-Indian sentiment was fuelled by a belief that Indians exert a “disproportionate influence over Nepali politics and economy” suggests that Indians may have employment opportunities in Nepal.  Indians were also perceived by some Nepalis as engaging in activities such as smuggling and prostitution.[24]  Dr Harka Gurung, a prominent Nepali scholar argues in a 2002 Asia Times article that the open border between the two countries is more positive for India and cites “free border trade and limited employment opportunities”.[25] The civil war in the 1990s is said to have harmed the businesses of Nepal’s Sikh community, including those whose forebears migrated from India according to the Republica web source.[26] Based on this material before the Tribunal, it finds the applicant does not have a real chance or a real risk of harm arising from anti-Indian sentiment if he were to be removed from Australia to Nepal.

31. The Tribunal has taken into account the applicant’s individual circumstances and accepts that the applicant has never been to Nepal and has no desire to go to Nepal and does not speak, read or write Nepali. However the Tribunal notes that English is widely used as a linga franca among educated citizens and residents of Nepal as English is the sole language of higher education in all the technical, medical, scientific and some of the economics and trade professions.[27]

32. No statistical information was found on the employment prospects or level of unemployment of Indian nationals who have moved to live in Nepal; neither has any been submitted by the applicant.

1. In relation to the right to enter and reside in a third country, the question of reasonableness does not arise as such. Section 36(3) does not permit a decision maker to consider whether the exercise of a right to enter and reside is reasonable, rather, it requires consideration of whether a person has taken ‘all possible steps’ to avail themselves of a right to enter and reside. The Australian courts have confirmed that the phrase ‘all possible steps’ should not be construed as ‘all steps reasonably practicable in the circumstances’, ‘all reasonably available steps’ or ‘all reasonably possible steps’.[28]

2. The Tribunal considers that while the applicant may face some challenges and obstacles in resettling in Nepal, s.36(3) does not incorporate any requirement to examine such matters as a person’s ability to obtain employment or to access welfare benefits upon taking up residence.[29]  Nor are Australia’s protection obligations enlivened by virtue of the possibility that a person may suffer privation or be exposed to significant difficulties in maintaining a lifestyle by exercising such a right outside Australia.[30] 

   [24] ‘Where big can be bothersome’, The Hindu, 7 January <http:/ / Accessed 10 February 2014, CISNET CX317938

   [25] Adhikary, D. 2002, ‘India, Nepal: Stuck at the border’, Asia Times, 10 February < Accessed 10 February 2014, CISNET CX317925

   [26] The Republica website describes itself as “a team of professional management and journalists — one of the best in the Nepali media. Our duty toward our readers is to provide them with impartial news, bold views, in-depth analysis and thought-provoking commentary. We shall do this without fear or favor, and we shall be guided by nothing but our conscience”. (Rai, O. 2014, ‘Sons of Sardars’, Republica (Nepal), 2 July < Accessed 2 July 2014, CISNET CX322745.

   [27] Languages of Nepal on Wikipedia.org:  NBLC v MIMIA, NBLB v MIMIA (2005) 149 FCR 151 per Graham J at [64], Wilcox J and Bennett J agreeing.

   [29] SZMWQ v MIAC (2010) 187 FCR 109.

   [30] SZMWQ v MIAC (2010) 187 FCR 109 per Rares J at [32]. However, in SZRTC v MIAC [2014] FCAFC 43 at [48].

100.   Given the applicant’s personal circumstances, the Tribunal finds the applicant has no reasons his resettling in Nepal threatens the person’s capacity to subsist, denial of basic services or the denial of capacity to earn a livelihood of any kind, where the denial threatens to person’s capacity to subsist, amounting to serious or significant harm. Accordingly, the Tribunal does not accept the applicant has a real chance of serious harm or a real risk of significant harm, arising from any economic hardship in Nepal for the foreseeable future.

101.   The applicant did not advance any claim at all that any harm amounting to serious or significant harm will arising with resetting in Nepal arising from his claimed fears of a vengeful Muslim man from Gujarat  who has threatened the applicant arising from an alleged incident from 2006 or that he would be discovered by this man.  Additionally, the applicant stated that he could go to Nepal, indicating no personally held fears of persecution if he were to enter and reside in Nepal.

102.   Accordingly the Tribunal finds that there is not a real chance of harm arising from the applicant’s claims for any Convention or non-Convention reasons, claimed, imputed or otherwise, in being removed from Australia to Nepal.

103.   Having carefully assessed all the available evidence before it, and the applicant’s claims both individually and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for a Convention reason in Nepal, for the purposes of s36(4)(a) of the Act.

104.   Based on the available information and the reasons above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right to enter and reside in Nepal that there is a real risk of significant harm, including the applicant will suffer harm by way of him being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subject to torture; he will subject to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, for the purposes of s36(4)(b) of the Act.

Sections 36(5) and (5A) – refoulement from Nepal

105.   The Tribunal has considered the provisions in s.36(5) and s.36(5A) of the Act which excludes the operation of s.36(3) of the Act where a country will return a non-citizen to another country where the non-citizen will be persecuted or face a real risk of significant harm.

106.   The applicant did not claim that he would be refoulé through persecution or significant harm from Australia to Nepal and stated at the hearing he could travel there, as discussed above.  The applicant makes no claim that he is wanted by authorities in India for any Convention or non-Convention reason.  The Tribunal is not satisfied on the evidence that the government of Nepal returns Indian nationals to India.

107.   Further, the Tribunal finds that under the terms of the Treaty, the government of Nepal agreed to grant Indian nationals reciprocal privileges to Nepali citizens in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature. The Tribunal finds that the applicant does not have a well-founded fear of persecution or a real risk of suffering significant harm by Nepal returning him to India and that s.36(5) and s.36(5A) are not enlivened.

Conclusions

108.   The Tribunal finds that the applicant has a right to enter and reside in Nepal and has not taken all possible steps to avail himself of that right.  Furthermore, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for a Convention reason in Nepal and that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s.36(3) in Nepal, there would be a real risk of the applicant suffering significant harm. 

109.   Therefore, Australia does not have protection obligations in respect of the applicant of the operation of s.36 of the Act.  The Tribunal, accordingly, finds that it therefore unnecessary to undertake any further assessment of the substantive merits of the applicant’s claim for protection under s.36(2).

110.   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.

111.   Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

Brendan Darcy
Member