1502907 (Refugee)

[2016] AATA 4489

1502907 (Refugee) [2016] AATA 4489 (20 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502907

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Jane Marquard

DATE:20 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 20 September 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.

STATEMENT OF DECISION AND REASONS

OVERVIEW

1.    The applicant, who claims to be a citizen of Nepal, is [age] years old. He was born in [Town 1], Nepal and first came to Australia on a student visa [in] May 2007.

2.    The applicant applied to the Department of Immigration and Border Protection (the Department) for a Protection Visa [in] February 2014. The applicant attended an interview with a delegate of the Minister for Immigration and Border Protection in February 2015. The delegate refused to grant the Protection Visa [in] February 2015.

3.    This is an application for review of that decision. The applicant appeared before the Tribunal on 26 August 2016 to give evidence and present arguments. An interpreter assisted the Tribunal.

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

EVIDENCE BEFORE THE TRIBUNAL

5.    In making its decision the Tribunal has taken into account evidence before the Department and Tribunal, as well as independent country information, a summary of which is set out in Attachment B.

Evidence from the Department

6.    Information provided by the applicant in his application forms indicates that he attended school in Nepal, and then obtained a [qualification] in [Australia] (studying from February 2008 to March 2012). His passport was issued in 2006. He states in his forms that he is a Christian. He was married in 2012. His parents and [a few of his siblings] live in Nepal. The applicant arrived in Australia in 2007.

7.    He provided information about his claims in his application forms and supporting documents. These included:

·his Marriage Certificate issued in NSW [in] July 2012;

·[a Country 1] Certificate of Birth for his [stepchild];

·his Nepalese Citizenship Certificate; and

·a letter to the Department in February 2014 reiterating his claims.

8.    He claimed that he left Nepal on a valid visa in May 2007 in pursuit of bettering his life through education, life experience, honest work, spiritual enlightenment and to raise a family. He was born a Hindu and came from a strict Hindu family who practice fundamental Hinduism. He was considered somewhat of a rebel in the eyes of the temple and community because he would not take Hinduism seriously, and avoided contact with Hindu rituals and practice. When he came to Australia he said that he was intrigued with Christianity and the amazing things Jesus Christ had done in the world. He became more intolerant of Hinduism and became passionate about Christianity. He attended Christian functions and celebrated Christmas and other Christian events. He said that he married his wife in 2012 and she became very abusive when he suggested taking vows in a church.

9.    He claimed that Nepal is intolerant of citizens who convert to another religion from Hinduism, particularly Christianity. From what he has heard, Christians are ostracized, subject to abuse, humiliated publicly and persecuted. The Hindu high priests run the country. He claimed that preachers and individuals have been criminally charged for apostasy. He said that he will not be able to practice his new-found beliefs. He claims that the state is behind attacks on Christians and churches. In a letter to the Department in February 2014 he said that he had tried his utmost to keep his faith deeply hidden within his heart for some years, but could do so no longer. He attached country information about Nepal. The Tribunal listened to tapes of the applicant’s interview with a delegate of the Department during which he reiterated his claims.

Evidence before the Tribunal

1. The applicant reiterated his claims in a hearing before the Tribunal on 26 August 2016. He confirmed that the evidence he provided to the Department was accurate.

2. He explained that his hometown, [Town 1], in Western Nepal, is a small [community], [details deleted], in the [name] area.  His father used to be the [local official] of the village district, but now is working [at workplace]. His mother is a housewife. [Details of siblings deleted]. He lives with his [siblings] in Australia.

12. The applicant said that he grew up in a traditional Hindu family in Nepal. Asked what he meant by his statement to the Department that his family were “fundamental Hindus”, he said that they were strong followers of Hindu. He is from the [name] caste, which along with the Brahmins, is a higher caste. This means there is pressure to follow Hindu traditions. His [siblings] are [Hindu] and follow the traditions in Australia. He said that he does not really attend Hindu events. He has not been to a Hindu temple for three to four years. His [siblings] have no objection to him following Christianity. He said that in his family everyone followed rituals strictly, but he had a feeling that he should have a freedom regarding his own religion. He was asked why he felt as a child growing up that he should avoid the Hindu traditions. He said that in year [grade] and [grade] he studied in Kathmandu. One of his friends was Christian and did not tell anyone about it. That friend asked him to visit his home and the applicant found out that he was a Christian. The friend told him a few things about Jesus and Christianity, and the applicant was impressed because his friend said that Christianity was about the relationship with God, and how Jesus gave his life for humanity. His friend also told him God was truthful, and leads the way.

13. After high school in Kathmandu, he studied a [Bachelor’s degree] for two years. He said that he decided to come to Australia rather than finishing his degree, because there was political turmoil and the college was closed. His parents did not want him to go out in the streets, and suggested he go back to the home village to live. Then he applied to come to Australia and his parents funded him to do so. He arrived in Australia [in] May 2007. He studied [a course] in Australia until March 2012. After that, he got married to [a Country 1] woman he met in 2011 while working as [occupation] at [an organisation], [Australia].

14. The applicant got married in May 2012, about one year after he met his wife. He said that he introduced her to his family in 2013. He had a wedding in court and they planned to go back to Nepal for a traditional wedding later on.

15. The applicant claimed that after he came to Australia he felt very free, so could practice           his own religion. He said that he attended [a church in Suburb 1] from around May 2013.  He made his own Christian friends. Asked why he did not attend a church between 2007 and 2013 if he was interested in Christianity when he left Nepal, he said that he had been studying and working. He chose this particular church because it was convenient as he was living nearby with his friends and [siblings]. Some of his friends were going to church. Since then he has attended regularly. He could not go the Sunday before the hearing, but does attend regularly. He said he does not do anything special to practice his Christianity besides going to church, but does attend events or classes when they are on. He was asked if he described himself as a Christian and he said that he does, but in order to convert he needs to be baptised and he is still training. His training involves attending classes and reading books, and in this he is being supported by Father [name]. He owns his own Bible which was presented to him by the Father. He said that he has been reading the Bible but it is difficult. Asked if he had a favourite story or passage that he had read so far, he said that he does not remember exactly. Asked if there were any stories about Jesus that he felt resonated with him, he said that everyone said Jesus died for us, but he needs some time to recall about Jesus.  He remembered a story from the Father, that there is a rich person who does good work and another who does not, both are following God. When asked if both would go to heaven, Father said that nobody is one hundred percent good, rich or poor, there is always sin, only God has no sin. God gives everyone an option to go to heaven by following him.

16. The applicant said that his marriage ended because his wife was a [different religion] and he was Christian. After the marriage he told her everything about his attendance at classes. He tried to convince her to accept his Christianity, but she said that if he got baptised she would leave. One day at the end of 2014 when he got home from class, she had left.  She knew he was going to church but only when she found out that he was going to be baptised did she leave him. He was asked why he did not discuss this with her prior to marriage. He said that he did not expect her to react like that. He was asked if he had applied for a partner visa to stay in Australia after he married her. He said that he had applied as he was the only person who could look after her as she had back pain and health problems. He was asked if he knew she withdrew the application and he said she did that after she left him.

17. The Tribunal told the applicant that it had a copy of the letter of withdrawal by his wife in relation to that partner visa, which was dated [July] 2013. The Tribunal asked her why the partner visa was withdrawn so long before she left him in 2014. He said that he did not know exactly because she did not tell him, but thinks it might have been because of the religion. He was asked if it was a genuine marriage as there are cases of people who marry for the purpose of obtaining a visa.  He said that they did love each other, he was [occupation] at work and she supported him.

18. He was asked if he celebrated Christmas at the end of 2016, and he stated that he travelled to [location] for four days with friends, so did not celebrate Christmas. He was asked if he attended Easter celebrations in 2016, and he said that he went to the home of the President of his church, and they prayed and enjoyed food and conversation.

19. The Tribunal discussed section 91R(3) with the applicant. He said that he was following Christianity for a long time, and in Australia he had the grand opportunity to follow it freely. His wife left him because of his Christianity so he did not follow Christianity just for a refugee claim, as he is really “into it from the bottom of his heart”. He has a strong belief and has been able to convince his [siblings] that he is a strong follower.

20. He claimed that he is from a high-caste family and cannot follow Christianity in Nepal, and his parents will find it difficult. He said that it is acceptable for lower caste people to follow Christianity, but not for higher caste people. He is scared because he has heard that local baptised people (as opposed to foreign Christians) will not be forgiven so he is afraid to go back.  He said that there is a strong possibility that he will be attacked. He said that he has read about Christians being ostracised, subject to abuse, publicly humiliated and persecuted. He said that details of this were provided in articles he submitted to the Department. He said that his friend in Kathmandu told him that you should not tell people you are Christian as you will be in trouble. He has searched the internet to see if he could practice but he is scared, as the situation is critical.

21. Asked about his statements to the Department concerning high priests running the country, and preachers and individuals being charged for apostasy, he said that in his country only 1 percent of people are Christians. The priest in the Temple does not allow Christians to enter, and regards converts as sinners, which he finds threatening.

22. The Tribunal discussed with the applicant country information provided by him to the Department. The Tribunal referred to independent sources which suggest that the incidents of violence were few and far between, and not recent. The Tribunal referred to one of the key sources of information about global religious freedom – the United States Department International Religious Freedom Report, as well as other sources indicating religious tolerance in Nepal. The Tribunal discussed the concept of serious and significant harm with the applicant and the fact that low level discrimination and ostracism does not amount to serious or significant harm. The applicant suggested higher caste individuals will not be liked and conversion is not legal. He said that his father was [local official] of the district and everyone in his district would know about him. He is the son of a village [local official] so if they found out, this could have devastating repercussions.

23. The Tribunal put to the applicant information under section 424AA of the Act, information that he had only applied for a protection visa in 2013 after his wife withdrew his spouse visa, indicating that he had only applied for protection once all other options had expired. The applicant responded that he came on a student visa and had a strong Christian belief, and then applied for a partner visa, and people told him he could not apply for two visas at the same time. When his wife withdrew the partner application, he became really scared as he thought he would be persecuted so he applied for the protection visa. The Tribunal also discussed complementary protection provisions with the applicant.

24. The applicant was asked if he would like to add any further information to his claims and he asked for one week to provide a document. This request was granted, however no further information was provided.

ASSESSMENT OF CLAIMS AND EVIDENCE

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

26. In order to meet the refugee criterion the applicant must have a well-founded fear of persecution in Nepal for one of the five reasons set out in the Refugees Convention, race, religion, membership of a particular social group or political opinion.

27. In order to meet the complementary protection criteria there must be substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Nepal, there is a real risk of significant harm.

28. A summary of the relevant law relating to refugee and complementary protection is set out in Attachment A.

Nationality/country of reference

29. The applicant provided a copy of his Nepali passport and Citizenship Certificate, and gave  evidence that he was born in Nepal. It was clear that he was familiar with the culture, history and geography of Nepal. The Tribunal accepts on the basis of this evidence that he is a citizen of Nepal, and that Nepal is the country of reference for the purpose of the complementary protection criteria.

Is the applicant a Christian?

30. The Tribunal accepts on the basis of his evidence about his family and childhood, that the applicant was never very interested in Hindu traditions despite coming from a traditional Hindu family. The Tribunal accepts that, while the applicant was a student in Kathmandu, he spoke to a fellow student about Christianity, and this piqued his interest in Christianity. The Tribunal accepts this evidence because he gave evidence that he has only attended temple a few times in Australia, that his [siblings] accepted his choices, and because he indicated he was slightly rebellious in regard to tradition.

31.The Tribunal notes that the applicant did not explore his interest in Christianity in Nepal any further after first hearing about it from a fellow student, and nor did he attend church or find out more about Christianity for six years after he came to Australia. The Tribunal finds that the applicant has only very basic knowledge about the Bible. He was unable to quote a story or passage from it, or tell a story about Jesus, despite saying he had a Bible, and was studying it, and had attended classes. The Tribunal notes that he did not celebrate Christmas in 2016 although he said that he did in other years. Notwithstanding these factors which point to a person with little Christian knowledge and experience, the Tribunal accepts that the applicant is interested in Christianity and would like to be baptised. The Tribunal accepts this as he had some basic knowledge about Christian principles and ideas, and spoke about the pastor of the church, and attending Easter celebrations. The Tribunal accepts that he has attended church in [Suburb 1], (notwithstanding the lack of corroborative evidence from the church), as he was able to state the pastor’s name, the address of the church, and talk about some classes they hold. On this basis the Tribunal accepts that the applicant is interested in Christianity and would like to become baptised and practice Christianity in the future.

32. The Tribunal is satisfied that the applicant’s conduct in Australia, in attending church and reading the Bible, was engaged in otherwise than for bolstering his refugee claim.

Does the applicant meet the refugee criteria?

33. In order to meet the refugee criteria, the applicant must have a well-founded fear of persecution for one of the Convention reasons, in this case, religion.

34. The Tribunal is mindful that delay is not necessarily incompatible with a person having a well-founded fear of serious harm. In this case, the applicant was in Australia for seven years before making a protection application. He said that he delayed the application for a protection visa because he was working and studying. The Tribunal is of the view that such a delay is not generally consistent with the applicant having a well-founded fear of persecution in Nepal for the reasons claimed. However, the Tribunal notes that the applicant only started attending church shortly before making the protection visa application. In light of this, the Tribunal will give the applicant the benefit of the doubt that he does have a genuine subjective fear of serious harm. 

35. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason, if he returns to Nepal for the reasons set out below.

36. The applicant claims that Nepal is intolerant of converts, particularly Christians, and that Christians are ostracised, subject to abuse, publicly humiliated and persecuted. The Tribunal does not accept this claim. Independent country sources (discussed and footnoted in Attachment B) are consistent in analysis that Nepal is generally a place of religious tolerance. The new Constitution, promulgated in September 2015, establishes Nepal as a secular state and provides for every person’s right to profess and practice his or her own religion. Freedom House reported in 2015 that religious tolerance is broadly practised. The Department of Foreign Affairs and Trade states that “Christians have a long and accepted place in Nepali society and are generally able to freely worship their religion without interference from the state or society”.  Nepal has one of the fastest growing Christian populations in the world, according to the World Christian database, with many new churches emerging. There are also reports that the 2015 earthquake has “strengthened the Christian surge”.

37. Nepal’s new Constitution does prohibit conversion and bans religious behaviour disturbing public law and order. While the inclusion of these provisions in the Constitution is a concern for Christians, the United States Department of State International Religious Freedom Report, one of the leading commentaries on global religious freedom, has stated that minority leaders said that the government did not enforce the ban on conversion. The Report stated that most Hindus who converted were willing and able to publicly state their new religious affiliation, without fear of retribution, although a small, decreasing number of converts concealed their faith from families. It is important to note as well that there are many missionary churches, hospitals and schools which have operated in Nepal for a long period of time.

38. The sources also indicate that there have been very few violent attacks on Christians. Such attacks appear to be conducted by extremists and are irregular and infrequent. The applicant claimed in his Departmental application that Hindu high priests run the country and the state is behind attacks on churches, but the country sources do not back up such claims, instead affirming that it is extremists who are responsible for attacks. The International Religious Freedom Report referred to protests by groups demanding that Nepal be declared a Hindu state, prior to the promulgation of the Constitution, and explosions which occurred on the grounds of three churches in Jhapa, causing minor damage. Other reports also referred to tension leading up to the promulgation. Hindu nationalists claimed responsibility, and some arrests were made. In 2013 there were reports of a church building and the homes of four Christian converts being set alight, believed to be by carried out by Hindu extremists. The same report referred to the murder of a Christian leader by a Hindu man, also stating that “physical attacks on Christians are generally an uncommon occurrence”. In sum, these sources indicate that attacks on Christians conducted by extremists are rare, and have often related to specific events.

39. The Refugees Convention refers to a “well-founded” fear. This adds an objective requirement, in that there must be a “real chance” of persecution, one that is not remote, insubstantial or a far-fetched possibility. Given the consistent commentary in independent sources about religious freedom in Nepal, the lack of enforcement of the conversion prohibition, and the few reports of violence on Christians, the Tribunal is not satisfied that there is a real chance of persecution if the applicant returned to Nepal in the reasonably foreseeable future. The Tribunal is satisfied that such a chance would only be remote or far-fetched. Furthermore, there is no information in the sources which indicate that the applicant would be more likely to be targeted because he comes from a higher caste or because his father was village [local official].

40. 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). An indicative list of what constitutes serious harm is set out in section 91R(2) of the Act: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

41. The Tribunal accepts, based on the country information, that the applicant may suffer some low-level discrimination or ostracism as a Christian. However the Tribunal is not satisfied that such treatment would reach the level of “serious harm” envisaged by s 91(R)(1). The Tribunal does not accept that such treatment would involve physical ill-treatment or that the treatment would threaten his capacity to subsist or earn a livelihood or any other form of serious harm. As discussed, independent sources indicate that Christians have a long and accepted place in Nepali society and are able to worship freely.  The independent sources, including information provided by the applicant, do indicate that Christian converts may face some low-level social and family discrimination. There may be difficulties for Christian groups registering as religious organisations and as a result owning land to bury their dead, Christians have not been given their own Commission, and Christians may face discrimination in obtaining senior positions in the civil service. The Tribunal has taken into account that the ostracism may be exacerbated for the applicant, who is from a higher caste where Hindu traditions are important and there are fewer Christian converts, and because his father was village [local official]. However this kind of ostracism and discrimination does not reach the level of serious harm pursuant to section 91(R)(1). The Tribunal is satisfied based on country information that he would be able to practice his religion freely. For all these reasons the Tribunal does not accept his claim that his friend in Nepal was too scared to practice and that the applicant would not be able to practice freely if he returned.

42. The Tribunal is not satisfied on the basis of the applicant’s evidence that he would be involved in proselytising if he returned to Nepal. As discussed earlier, the applicant became interested in Christianity in Nepal as a student, but despite coming to Australia in 2007 he first attended church in 2013, which does not indicate a serious and evangelical approach to Christianity. Since then he has attended church and some classes but he has very basic knowledge of Christianity and involvement in Christian activities, and has not yet converted. He has not been involved in proselytising activities in Australia or expressed a desire to become involved in such activities in Nepal. The Tribunal is satisfied that he would not be involved in proselytising because he has shown little interested in evangelical activities in the past or in his future plans. The Tribunal is satisfied therefore that he would not refrain from proselytising because of a well-founded fear or persecution, rather he would refrain because of his own interests and choices.  

43. In any event, the sources indicate that although proselytising is illegal until recently there have been no prosecutions. The applicant stated in his application forms that preachers and individuals have been criminally charged for apostasy but independent sources indicate there have been no cases of this in the past. There is currently one case before the courts in Nepal, which has been reported in the media. The reports state that eight Christian counsellors working for Teach Nepal were arrested for distributing a pamphlet about Jesus in a Christian school, while helping children through the trauma of the earthquake. The counsellors were granted bail. While this is a concerning report, it is the only case of prosecution of this sort. Prosecution of proselytising is not systematic or discriminatory and this may be an isolated case involving a non-governmental organisation, although clearly it will be important to monitor the situation in the future.  Churches, missionaries, and schools continue to operate across the country and there is no evidence that practising Christians will face any harm. For all these reasons the Tribunal is not satisfied that the applicant would face serious harm on the basis of proselytising. The Tribunal has taken into account the fact that he is from a higher caste and his father was Village [local official]. However there is nothing in the country information to suggest that he would face serious harm on this basis or that his family would face serious harm.

44. After considering the evidence singularly and cumulatively and for the reasons set out above, the Tribunal does not accept that if the applicant returned to Nepal now or in the reasonably foreseeable future, that there is a real chance that he will face serious harm for reasons of religion or any other Convention related reason.

Does the applicant meet the complementary protection criteria

45. The Tribunal has considered whether, on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Nepal.

46. Section 36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The real risk test imposes the same standard as the real chance test applicable to the assessment of well-founded fear in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. An assessment of the relevant country information discussed earlier indicates that a Christian convert would not face a real risk of being arbitrarily deprived of life, that the death penalty would be carried out on him, that he would be subjected to torture, that he would be subjected to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. The Tribunal is satisfied that such a risk is remote and far-fetched only.

47. The definitions of “torture” and “cruel or inhuman treatment or punishment” in subsection 5(1) of the Act require that pain or suffering be “intentionally inflicted” on a person, and the definition of “degrading treatment or punishment” requires that the relevant act or omission be intended to cause extreme humiliation. These expressions require a subjective intention on the part of the actor to bring about the victim’s pain or suffering or extreme humiliation. The Tribunal is not satisfied that such an intention exists on the part of the state, given independent country information which indicates that Christians are free to worship and that conversion while illegal is not prosecuted. The Tribunal is also not satisfied that such an intention exists within societal groups. Incidents of violence towards Christians instigated by extremist groups have been few and irregular. Although some ostracism or discrimination may exist, as outlined earlier, there does not appear to be an intention by societal groups to inflict torture, cruel or inhuman treatment or punishment or extreme humiliation amounting to degrading treatment or punishment. The Tribunal is also not satisfied that this low level discrimination or ostracism would amount to significant harm. The country information does not indicate that any such harm would involve death or torture, nor would it involve cruel or inhuman treatment or punishment or degrading treatment or punishment. In regards to cruel or inhuman treatment or punishment, on the basis of country sources discussed earlier, the Tribunal does not accept there would be an act or omission by which severe pain or suffering is intentionally inflicted, or pain or suffering which could reasonably be regarded as cruel or inhuman would be inflicted. In regards to degrading treatment or punishment, the Tribunal does not accept that there would be an act or omission which would cause and be intended to cause, extreme humiliation which is unreasonable. The country information indicates that low level ostracism or discrimination may involve conduct such as difficulty registering religious organisations, burying the dead, obtaining positions in the senior civil service and some social discrimination. The Tribunal does not accept that this kind of ostracism or discrimination reaches the level of any of the types of significant harm defined in s.36(2A). The Tribunal has also taken into account the claim by the applicant that his father was village [local official] and he comes from a higher caste. The country information does not support a proposition that he would suffer significant harm on this basis.

48. Accordingly, after considering the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, that there is a real risk of significant harm.

Overall conclusion

49. 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).

50. 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).

51. 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

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

Jane Marquard
Member

Attachment A

RELEVANT LAW

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.

1. Refugee criterion

1. 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).

2. 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:

   a.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.

3. 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.

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

5. 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.

6. 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.

7. 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.

10.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.

11.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.

12.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.

13.  Complementary protection criterion

14.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’).

15.‘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

16.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.

17.  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.

Attachment B

INDEPENDENT COUNTRY INFORMATION ABOUT CHRISTIANITY, CONVERSION AND PROSELYTISING IN NEPAL

1. A key source of information about religious freedom in countries around the world is the United States Department of State International Religious Freedom Report.

2. As noted in the most recent United States Department of State International Religious Freedom Report 2016, the Constitution dated September 2015 establishes Nepal as a secular state and provides for every person’s right to profess and practice his or her own religion. The Constitution prohibits conversion and bans religious behaviour disturbing public law and order. Minority leaders said that the government did not enforce the ban on conversion, but expressed concern that the ban could make religious minorities vulnerable to persecution for preaching or public displays of faith. The Report stated that most Hindus who converted to Christianity were willing and able to state publicly their new religious affiliation without fear of retribution. Christian leaders stated a small, decreasing number of converts who tried to conceal their faith from families in local communities, mainly in rural areas. The report noted that prior the promulgation of the Constitution, there were protests by groups demanding Nepal be declared a Hindu state after an amendment that would have declared this was voted down by the Constituent Assembly. Following the vote, explosive devices detonated on the grounds of three churches in Jhapa, causing minor damage Hindu nationalists claimed responsibility. Police have arrested a number of suspects.[1]

   [1] “2015 Report on International Religious Freedom – Nepal”, US Department of State, April 2016,

3. The earlier 2015 Report notes that although proselytising is illegal in Nepal, the government has not prosecuted anyone:

   The law prohibits proselytising; however, the government has not prosecuted anyone for this offense, and individuals were free to change religion[2].

   [2] "2014 Report on International Religious Freedom - Nepal", US Department of State, 14 October 2015, dOGD95BE926068

4. The same report notes that foreign Christian missionaries have operated in Nepal for decades:

   There were no foreign missionaries who declared to the government an intent to publicly proselytise; however, dozens of Christian missionary hospitals, welfare organizations, and schools have operated for decades. There were no reports by the media or the government that these organizations engaged in proselytising, and they operated without government interference. The government did not expel any foreign workers for proselytising, but missionaries reported they attempted to keep their activities discreet. Many foreign Christian organizations had direct ties to local churches and sponsored clergy for religious training abroad.[3]

   [3] "2014 Report on International Religious Freedom - Nepal", US Department of State, 14 October 2015, OGD95BE926068

5. However, a website reports that Nepal’s first religious freedom case was before the courts in July 2016. Eight Christian counsellors working for Teach Nepal were arrested for distributing a pamphlet about Jesus in a Christian school while helping children through the trauma of the earthquake.[4]

   [4] “Nepal Christians await trial in first religious freedom case under new constitution”, Arora, V, 20 July 2016

6. With regard to the establishment of churches and places of worship, the 2015 Report states:

   The law does not require religious institutions to register, but in order to receive limited government funding and teacher training, religious schools must officially register with local district education offices (part of the Ministry of Education) and supply information about their funding sources. In addition, under the law, all religious groups, including congregations, have to register with the government as nongovernmental organizations (NGOs) in order to own land as an institution, an important practical step for establishing houses of worship or burial sites.

   There are no restrictions on the sale or possession of religious literature.

   As the administrative process for registration was cumbersome and onerous, purchasing land in the name of religious entities remained difficult. In practice, congregations representing each religious group, whether registered or not, operated freely and without obstruction by having individual congregation members purchase land under their own names on the institution's behalf.

7. The United States Department of State International Religious Freedom Report 2016 suggests that Christians like other religious groups must register as NGO’s or not-for-profits in order to own land, operate legally as institutions or gain eligibility  for public service related government grants and partnerships. Christian groups reported encountering difficulties in registering on the basis of “preaching”. Media reports stated some Christian welfare organisations engaged in proselytising while administering aid after the April 25 earthquake. The government did not expel these foreign missionaries. [5]

   [5] “2015 Report on International Religious Freedom – Nepal”, US Department of State, April 2016

8. Freedom House reported in 2015 that minority religious groups face some discrimination from the government:

   Religious tolerance is broadly practiced, but proselytising is prohibited, and members of some religious minorities occasionally report official harassment. Christian groups have considerable difficulty registering as religious organizations, leaving them unable to own land.[6]

   [6] "Freedom in the World 2015 - Nepal", Freedom House, 15 April 2015, CISEC96CF1740

9. According to a February 2016, National Public Radio report[7], Nepal has one of the fastest-growing Christian populations in the world, according to the World Christian Database, which tracks global trends in Christianity. The report continues:

   [7] CX6A26A6E811: "Why Nepal Has One Of The World's Fastest-Growing Christian Populations", NPR (National Public Radio), 03 February 2016, (Opens in a new window)

   Encouraging someone to convert to another religion was always illegal, but as Nepal eased away from its official Hindu status, the rules lightened up.

   Churches now mushroom throughout the Kathmandu Valley and across the terraced hills. Proselytising remains illegal, but with political instability and weak law enforcement, that doesn't stop it from happening.

   Meanwhile, the earthquake last year may have strengthened the Christian surge. Where the government — long mired in political instability — has failed to help poor villagers, aid groups have trickled in to fill gaps, some of them carrying a message of salvation.

10.The Tribunal has found some reports of violence directed towards Christians in Nepal, in addition to the 2016 detonations. A January 2014 The Christian Today article reported attacks against Nepalese Christians during 2013:

A church building and the homes of four Christian converts in a Nepal village were set alight on December 23, according to Barnabas Fund.

It is thought that Hindu extremists, who see the growth of Christianity in Nepal as a threat, carried out the attacks which targeted the homes of Ganga Lama Tamang, Lama Bahadur Tamang, Lama Bokta and Bikram Lama. […]

Though physical attacks on Christians are generally an uncommon occurrence in Nepal, this violence follows the murder of a church leader last October. Debelal was killed by a Hindu man who tricked him into believing he wanted prayer before beating the Christian with an iron rod and slitting his throat. [8]

[8] Lodge, C, ‘Christian homes and church in arson attack’ Christian Today, 10 January2014, para. 1, 2, 4< Accessed 9 February 2015 <CX1B9ECAB9642>

11.In September 2015, The Christian Today reported an increase in secular tensions surrounding the negotiations leading to the promulgation of the 2015 Constitutions:

Charisma News reported that two churches in Nepal's easternmost Jhapa district were bombed on Sept. 14, only hours after Nepal's Constituent Assembly turned down calls to revert the country back into an officially Hindu state.Three people have since been arrested over the attacks, though Hindu extremists have continued threatening Christian missionaries to leave the country."From today, the Morcha declares Nepal a Christian-free Hindu nation. We warn all the Christian religious leaders to leave Nepal, and appeal to all those who converted to Christianity to return home [convert back to Hinduism]," the statement from the radical Hindu group adds.

12.The 2014 US Department of State report on Religious Freedom did not contain any reports of violence or harm directed towards Christians[9]:

[9] "2014 Report on International Religious Freedom - Nepal", US Department of State, 14 October 2015, OGD95BE926068

The only significant report of communal/religious violence occurred in February, when conflict over a Hindu procession through a Muslim area in the Rautahat district led to property damage. Discrimination against members of lower castes, particularly Dalits, remained widespread and inhibited their access to Hindu temples and ability to participate in religious events. One bystander was killed during a confrontation over charges of violating the prohibition on cow slaughter.

13.The DFAT Country Information Report for Nepal[10] provides the following advice in relation to the situation for Christians in Nepal:

[10] DFAT Country information Report – Nepal, 21 April 2016 CIS38A8012676

3.21 Christianity was introduced into Nepal in the 18th century and modern Nepal is home to an estimated 150,000 Christians, including 8,000 Catholics. Nepal has dozens of Christian missionary hospitals, welfare organisations, and schools that have operated for decades free from government interference. Christians have a long and accepted place in Nepali society and are generally able to freely worship their religion without interference from the state or society. However, according to Freedom House, Christian groups can face difficulty registering as religious organisations and, as a result, can find it difficult to own land. Christians can also face discrimination in obtaining senior positions in the civil service. Some core customs and values of indigenous people (for example relating to the use of alcohol, animal sacrifice, and other animistic practices) are challenged by Christian beliefs. These can, in some cases, lead to social discrimination and exclusion between indigenous communities and Christians.

3.22 Conversion to Christianity has increased from since the 1950s. More than 90 per cent of Nepal’s Christians are from marginalised groups such as indigenous communities (such as Chepangs and Santal) or Dalits, for whom Christianity provides an escape from the caste system. There are also anecdotal reports of occasional social tension because of perceived over-zealous activities of (particularly foreign) missionaries to induce conversion through the provision of health, education, housing or employment opportunities to converts. However, a lack of empirical data makes it difficult to comment on such issues in any specific detail. Generally speaking, DFAT assesses that Hindu citizens who convert to Christianity are publicly and safely able to do so, although they may experience low-level societal or family discrimination.