1502807 (Refugee)

[2016] AATA 4774

1502807 (Refugee) [2016] AATA 4774 (8 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502807

COUNTRY OF REFERENCE:                  Nepal

MEMBER:R. C. Titterton

DATE:8 December 2016

PLACE OF DECISION:  Sydney

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

Statement made on 08 December 2016 at 12:21pm

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.

CATCHWORDS
Refugee – Protection visa – Nepal – Social group – Inter-caste marriages – Love marriage – Disability – Delay in protection application

LEGISLATION

Migration Act 1958

Migration Regulations 1994

CASES

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA & Anor (1994) 34 ALD 347

Kopalapillai v MIMA (1998) 86 FCR 547

Chan v Minster for Immigration and Ethnic Affairs (1989) 160 CLR 379

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 the visa [in] May 2014 and the delegate refused to grant the visa [in] January 2015.

3. The applicant appeared before the Tribunal on 4 October 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. 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).

3. 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.

4. 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’).

5. 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.

6. The issues in this review are whether the applicant has a well-founded fear of being persecuted in Nepal for one or more of the five reasons set out in the Refugees’ Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Nepal, there is a real risk that he will suffer significant harm.

EVIDENCE

1. The information before the Tribunal included the following.

2. First the applicant’s application filed [in] May 2014. In that application, the applicant responds to the questions set out below as follows:

   Why did you leave the country? I had to leave my country due to family conflicts.

   Have you experience harm in that country? Beating, life threats.

   What you Fear may happen to you if you get back to the country? Life threats

   Who do you think may harm/mistreat you if you go back? Family members and relatives.

   Why do you think this will happen to you if you go back? People in similar situations have suffered beatings and torture. I think it happened to me as well.

   Do you think the authorities of that country can and will protect you if you go back? No there is no rule of law. The local people decide the sorts of cases

3. Secondly, the decision of the delegate dated [in] January 2015, a copy of which was provided by the applicant to the Tribunal. The delegate accepted that the applicant was in the Nepalese citizen. The delegate did not accept the applicant to be a witness of credit, and dismissed his application the applicant appeared at the hearing before the Tribunal.

4. At the hearing, the following evidence was given to the Tribunal by the applicant.

5. The applicant, who does not speak or write English, asked his [friend] to complete the application for him. The applicant identified where he had signed the document and wrote his name in English.

6. The applicant confirmed that his date of birth [date], and that he was born in [Village], Baglung District, Nepal. He was [one of a number of] children. One [sibling] lives in [another country], his [other siblings] still live in [Village]. His parents are no longer alive. His father used be [an occupation] in [a government agency].

7. The applicant was educated to year [level], leaving school aged [age] or [age] in 1996. He then stayed at home, helping his mother. His [siblings] also lived at home. After 3 to 4 years at home, in about 2000, he then went to [Country 1], and stayed for 3 to 4 years, working in [workplaces].

8. He was married in (Nepalese calender) [date]. He married [his wife]. Like the applicant, she is a Hindu, and both of [Caste 1]. However, the applicant is “low level caste” (that is not wealthy) whereas his wife’s family is “high level caste” (that is, wealthy). Theirs was not an arranged marriage but a “love marriage”. He came back to Nepal to get married. They married secretly, and their families were not present at the wedding. He remained living in Nepal for about a year at home after the marriage. He returned to [Country 1] for about 3 years. He returned to Nepal frequently, about 6 to 7 times, to visit his wife and son (who was born in 2062).

9. After his period living in [Country 1] the applicant then went to work in [Country 2]. Again, he worked in [workplace]. He remained in [Country 2] for about two years (2004 to 2006).

10. His wife and [child] are still living in the village. They are supported by the applicant’s siblings, and they work as well. The [child] is about [age] years old. If the applicant earned money in Australia he would send money home. However, the applicant has not worked in the 6 years he has been in Australia. He gets financial help from friends, and earns some money from odd jobs. 

11. The Tribunal asked the applicant if he had had any problems with or from his wife’s family in the year he lived in Nepal after the marriage. He said that they threatened him, and said they would kill him and his [child]. He said that they used to visit his home and threaten his parents as well. Following this, he took his wife to live near the border. Her family did not find them after that. He moved there one month after he was married. He then moved his wife to another secure place. However, after about three years, they found his wife, and then he moved her again.

12. The Tribunal asked if the applicant if his wife had ever been physically harmed. He said that on one occasion, three or four days after they were married, she was physically harmed when the villagers pulled her hair. The villagers told the applicant’s wife that they would kill them both. However, because she was in hiding, they never found her again, or harmed her.

13. The applicant agreed that he had never been physically harmed by his wife’s family. However, he was approached in [Country 1] when his wife’s relatives came to him and said they would kill him. The applicant returned to [Country 1] to visit regularly. When asked whether he or his wife were threatened, or harmed, the applicant said that his parents were.

14. One day, when he returned to Nepal, he was found by his wife’s relatives. They approached him and said that they going to kill him. He did not report this to the police as he thought they were corrupt, like the police in Nepal. This happened in approximately about 2063, 2064, about 10 years ago. However, no more threats have been made to the applicant or his wife since. The applicant said that his wife now lives in a “secret place”. 

15. As a result of this incident, the applicant moved to [Country 2] for work. He worked there in [workplace] for about two years. However, the [workplace] closed down and he returned to Nepal. He told the Tribunal that he did not take his wife for some to [Country 1] or [Country 2] with him, as it was a very hard life in [Country 1], and he would have needed a longer visa for them both to go to [Country 2]. He returned to Nepal, where he remained for about two or three months, but he was not able to find work.

16. The applicant came to Australia [in] June 2010. He said he came to Australia for security, and a safer environment.

17. Since that time he has not received any threats. However, his wife has been threatened. The Tribunal asked him to explain this, and asked whether he had been found by his wife’s family when he returned to Nepal from [Country 2]. The applicant said that they did not find him but they threatened his [sibling], when they found out that he was back in Nepal. The Tribunal asked what was the danger if he had not been found. The applicant said that he was worried that they would find his whereabouts so he moved around with his wife.

18. The Tribunal asked why he came to Australia in particular. He said that everyone told him that Australia was a safe place, and that there would be nobody here from his village. His [relative] arranged a passage for him, and the applicant travelled here on a false passport, which contained a visa for Australia. The Tribunal asked him why he did not apply for a Visa himself in the ordinary way. He said that his [relative] told him it was not possible.

19. The applicant said that since he had been in Australia he had not received any threats of harm from his wife’s relatives. In that time, however, his wife has received “threatening” from her relatives. The relatives found her phone number and told her that if they found her, or the applicant, they would kill them. After that, she cancelled her telephone number and moved to another place. He said the last time she received a threat was more than a year ago.

20. The applicant fears that he will be killed if he returns to Nepal. The Tribunal noted that he had been married to his wife for approximately 14 years ago. The Tribunal asked whether they had ever found his wife or harmed either of them. The applicant agreed that they had never found his wife although they kept calling her and that they had never physically harmed either of them (save for the hair pulling incident).

21. The Tribunal said that it appeared that his wife had had some success in staying secure and not being harmed, why could the applicant not return to Nepal and be safe. The applicant said that he had to be protected, and that if he returned to Nepal his brother will not help with that commitment.

22. The Tribunal asked if there was anything to prevent the applicant from going back to [Country 1] where he had lived and worked before. The applicant said he would have no place to stay and that his wife’s relatives would easily find his whereabouts. The applicant told the Tribunal that in [Country 1] he worked in various locations (“because I was getting the threatening”), including [City 1] (where he had been found on an earlier occasion) and [location].

CONSIDERATION AND FINDINGS  

Is the applicant a citizen of Nepal?

1. The Tribunal cited an original passport in the name of the applicant, bearing his photograph and date of birth, issued by the Government of Nepal. Accordingly, the Tribunal is satisfied that the applicant is a citizen of Nepal.

Does the applicant has a well-founded fear of being persecuted in Nepal for one or more of the five reasons set out in the Refugees’ Convention?

1. Various decisions of the Federal Court of Australia[1] have held that when determining whether a particular applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims made. Usually this involves an assessment of the credibility of the applicant. When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his claims.

   [1] See for instance Randhawa v MILGEA (1994) 52 FCR 437; Selvadurai v MIEA & Anor (1994) 34 ALD 347 and Kopalapillai v MIMA (1998) 86 FCR 547.

2. By and large, the Tribunal considered the applicant gave truthful evidence, although some of it was of limited persuasiveness. For instance, the Tribunal noted that [City 1] has a population of [number] million, and when the applicant lived there, there may have had a population of about [number] million. The Tribunal asked whether he was seriously asserting that he had been located in a city of about [number] million people by his wife’s relatives. The applicant said that this was possible because of [details deleted].

3. The Tribunal discussed the applicant’s delay in applying for a protection visa, noting that he arrived in 2010, but did not apply for protection for four years. The applicant said that he did not know about these types of visa. The Tribunal asked him what he thought was going to happen once he got to Australia. He said that he used to think that they would not threaten him in Australia and that he would be safe here. The applicant was unable to give a coherent or persuasive reason as to why he did not apply for protection for some four years after he arrived in Australia and some four years after his student visa ceased. As the Tribunal suggested to the applicant during the course of the hearing, such a delay may cause it to consider that he did not fear that he would be persecuted if he returned to Nepal.

4. Nevertheless, giving the applicant the benefit of the doubt, the Tribunal makes the following relevant findings.

5. The applicant was born on [date] in [Village], Baglung District, Nepal. He is a Hindu of [Caste 1], and describes himself as “low caste” (not wealthy).

6. He was married in (Nepalese calendar) 2060/61 (2002/2003 AD). He married [his wife], a high caste Hindu, of [Caste 1]. Theirs was not an arranged marriage but a “love marriage”. They married secretly and his wife’s family disapproved of the marriage.

7. At the time of his marriage he was working in [Country 1], He came back to Nepal to get married, and then returned to [Country 1]. They wed secretly and their families were not present at the wedding. He remained living in Nepal after the marriage but then returned to [Country 1] for a further 3 years. He returned to Nepal frequently, about 6 -7 times, to visit his wife and his [child], who was born in 2062 (2004 AD).

8. The Tribunal does not accept that the applicant’s wife’s family located the applicant in [Country 1] (in about 2063/2064 (2005/2006 AD), about 10 years ago, and threatened him, as claimed. The Tribunal does not accept as reasonable to believe as true that his wife’s family tracked him down in a city of more than [number] million people.

9. After his period living in [Country 1] he then went to work in [Country 2]. Again, he worked in [workplace]. He remained in [Country 2] for about two years (2004 to 2006 AD).

10. The marriage was never accepted by his wife’s family, who disapproved. On several occasions both he and his wife have been threatened by his wife’s family. The applicant’s family has also been threatened. The applicant has never been physically harmed. The only physical harm suffered by his wife was her hair being pulled on one occasion shortly after they were married.

Claims of harm

1. The applicant claims that he will suffer serious harm if he returns to Nepal for the Convention reason of being a member of a particular social group/s, namely:

   ·Because of his marriage to his wife, such a marriage being a “love marriage” and not an arranged one, which marriage is disapproved of (particular social group).

   ·Because his wife is “high level caste” and he is “low level caste”, (particular social group)

   ·Because of his disability (being a deformed [deleted).

2. In relation to the applicant’s deformed [deleted], the Tribunal does not find that the applicant subjectively has a fear of persecution for a Convention reason. The Tribunal accepts that he may have been harassed or discriminated for that reason from time to time, but the Tribunal does not find that he has been subjected to serious harm for that reason.

3. The Tribunal does not consider that the applicant has a well-founded fear of persecution for either reason individually, or for a combination of the reason the applicant claims. An applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ 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. The test for determining well-founded fear was explained by the High Court of Australia in Chan v Minster for Immigration and Ethnic Affairs (1989) 160 CLR 379. The Court held that “well-founded fear involves both a subjective and objective element. The relevant question is whether the applicant has a present fear of harm in the reasonably foreseeable future”. The subjective element concerns the state of mind of the applicant. The objective element means that there must be a factual or objective element to hold that fear; there must be a sufficient foundation for that fear.

4. The Tribunal noted that there were a number of factors which may lead it to find that objectively the applicant did not have a well-founded fear of harm. The Tribunal indicated that the conduct complained of by the applicant had been going on for 14 years, and while there may have been threats to the applicant, and to his wife, there had never been any harm to the applicant, and his wife had her hair pulled on only one occasion many years ago. The Tribunal noted that the applicant had been away from Nepal and in Australia for 6 years and, if one includes his time in [Country 2] and [Country 1], away from Nepal for about 12 years. And when the applicant was in [Country 2] and [Country 1], he returned to Nepal regularly, and was never harmed. The Tribunal said that the combination of those things could lead it to consider that the applicant did not have a well-founded fear of harm upon returning to Nepal. The Tribunal invited the applicant to respond to this concern. The applicant said “they will harm me because my wife had to be shifted to different places because of the threatening she is getting”.

1. In addition, the Tribunal finds that the delay of the applicant in making his application for a protection visa is indicative that the applicant himself did not have a well-founded fear of serious harm if he were to return to Nepal.

Are there substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia the applicant will suffer significant harm?

1. In determining whether the applicant meets the complementary protection criterion under the Act, the Tribunal has considered whether, in light of the findings above, 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 chance that the applicant will suffer significant harm. In this respect, the Tribunal notes that all of the applicant’s claims to complementary protection involved the same claims and facts as her claims to refugee status.

2. Significant harm for these purposes is exhaustively defined in s 36(2A) of the Act: see 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 them; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment or to degrading treatment or punishment. Having regard to the information discussed above, the Tribunal finds that the applicant will not be subjected to deprivation of life or the death penalty or torture from anyone in Nepal.

3. The Tribunal has assessed each of the applicant’s claims, as summarised above.

4. Having considered the applicant’s circumstances individually and cumulatively, the Tribunal is not satisfied that the applicant is at a real risk of significant harm, if removed from Australia to Nepal.

5. The Tribunal finds that there are not substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he would suffer significant harm in terms of s 36(2)(aa) of the Act.

CONCLUSIONS

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

R. C. Titterton
Member