1504361 (Refugee)

[2016] AATA 4834

1504361 (Refugee) [2016] AATA 4834 (14 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504361

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Gina Towney

DATE:14 December 2016

PLACE OF DECISION:  Sydney

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

Statement made on 14 December 2016 at 4:42pm

CATCHWORDS
Refugee – Protection visa -  Nepal – Social group – Inter-caste relationship – Discrimination, violence, death – Separation – Wider family and society unaware of relationship – State protection

LEGISLATION
Migration Act 1958, ss 36, 65
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Nepal, applied for the visa [in] July 2014 and listed [Mr A] as her dependent.

3. On the original application form and accompanying Statutory Declaration the applicant recorded the following (in summary):

   ·She feared returning to Nepal due to an inter-caste relationship with [Mr A], and she feared her family and the society, and it would be especially difficult for her as a female;

   ·If she and [Mr A] returned to Nepal they would face discrimination, torture and physical violence, and as they had been in a relationship for more than four years it was not possible to separate;

   ·The authorities in Nepal cannot protect the applicant because a big role is played by society; and

   ·The applicant returned to her own country [in] October 2011 to meet her parents.   

4. The applicant also recorded the following by way of background information:

   ·She can speak, read and write in English and Nepali;

   ·She is Buddhist by ethnicity and religion;

   ·She entered a de facto relationship with [Mr A] [in] November 2010;

   ·She completed Higher Secondary education in Nepal, and obtained [a qualification] in Australia.

5. In a decision dated [in] March 2015 a delegate recorded that the applicant did not engage Australia’s protection obligations. The delegate also recorded that the applicant did not attend the scheduled interview with the department, and did not advise of any reason why she could not attend.

6. The reasons for the delegate’s decision are listed below (in summary):

   ·After entering Australia on a Student Visa the applicant was subsequently granted two further Student Visas, the latter of which included [Mr A] as her de facto dependent;

   ·The applicant departed Australia [in] October 2011 and returned [in] November 2011;

   ·[In] March 2013 the applicant’s Student Visa was cancelled under section 140 of the Migration Act, consequential cancellation.  [In] March 2013 the applicant wrote to the Minister seeking revocation, which was later refused, and on 22 April 2013 the applicant appealed to the Tribunal (differently constituted).  On 10 December 2013 the Tribunal found it did not have jurisdiction in relation to the applicant’s appeal for the Student Visa;

   ·[In] July 2014 the applicant applied for the Protection Visa, listing [Mr A] as her dependent; and

   ·[In] March 2015 [Mr A] asked to be withdrawn from the present application.

7. The applicant appealed to the Tribunal, and provided a copy of the departmental decision.

8. [In] March 2015 the applicant made a written submission to the Tribunal recording that she separated from [Mr A] [in] March 2015, and that she would still not be accepted by the Nepalese Society or her family, as she has had an open relationship with a male from a different caste.  The applicant went on to record that she would be exposed to widespread discrimination, psychological harm and ultimately death.

9. The applicant appeared before the Tribunal on 6 December 2016 to give evidence and present arguments. The applicant was accompanied by [her] friend and support person.  An audio recording of the hearing is available.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. 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).

12. 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.

13. 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’).

14. 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.

15. The issue in this case is whether or not the applicant engages Australia’s protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

16. In the current matter, the applicant has made claims on the basis of her previous de facto relationship with [Mr A], whom the applicant claims is of a different caste.  The applicant gave evidence that her de facto relationship with [Mr A] ended [in] March 2015, but submitted that she still faces ongoing difficulties if she returns to Nepal as a woman who has previously had an inter-caste relationship. 

17. The applicant has submitted that she feared her family and the society, and that it would be especially difficult for her as a female.  The applicant has also submitted that she would face discrimination, torture and physical violence; as well as widespread discrimination, psychological harm and ultimately death. 

18. In considering these claims the Tribunal has taken into account that the applicant’s relationship with [Mr A] ended [in] March 2015, that applicant has only engaged in an inter-caste de facto relationship whilst living in Australia, and that the applicant’s family were unaware of her relationship when she returned to Nepal [in] October 2011 to meet her parents, although it accepts that her parents became aware of the relationship at a later date.  The Tribunal also notes that both the Refugee Convention and Complementarity Protection provisions are forward looking tests, in that they regard future harm.

19. The Tribunal has also had regard for Country of Origin Information which indicates that although there are still difficulties with inter-caste relationships, there is movement towards greater acceptance and that the government has provided financial incentives for those who engage in such.

20. The following country of origin information is relevant, ‘Nepal, CI151015083831778, Inter-Caste Marriage Discrimination’, dated 23 October 2015. Relevant sections are copied below:

    Research indicates that the population of rural Nepal maintains a conservative caste ideology more so than their urban counterparts. Inter-caste marriages in rural areas are contentious as society generally embraces endogamy as the social norm. Rural couples in inter-caste marriages predominately involving Dalits may be ostracised from family and community. Some of those displaced may choose to migrate to urban centres such as Kathmandu where attitudes towards inter-caste marriage are more liberalised.

    …

    A recent October 2015 Nepali Times report indicates that ‘Inter-caste marriage is gradually becoming less un-acceptable and the younger generation isn’t much interested in antiquated concepts of caste and ethnicity’

    …

    2. Are there laws against inter-caste relationships in Nepal?

    No laws were located that indicate inter-caste relationship are illegal. Laws in Nepal aim to protect citizens against caste discrimination. Previously, monetary incentives had been offered to promote inter-caste marriage.

    In 2009, the government of Nepal provided financial incentives to encourage inter-caste marriage with Dalits. Dawn reported that ‘Finance Minister Surendra Pandey said inter-caste marriages were still frowned upon, and he hoped that the 100,000-rupee ($1,270) payment would help such couples’:

    Society still rejects inter-caste marriage between Dalits and non-Dalits and the initial days of couples thus married are normally tough,” he told parliament as he presented the government's new budget.

    “To encourage such inter-caste marriage, the government will provide a grant of 100,000 rupees to the newly married couple within 30 days of marriage registration.”

    According to a 2009 Peace and Collaborative Development Network report:

    The new Nepalese government in its annual budget presented last week in the parliament announced cash grants for couples of inter-caste and widow marriages. As per the plans, the government would provide each inter-caste couple 100,000 Nepali rupees ($1270) to encourage marriage between the so-called lowest Dalit caste and non-Dalit castes and 50,000 Nepali rupees ($635) to each couple when a widow remarries. The couples are to receive such grant within 30 days of marriage registration at district administration.

    The Marriage Registration Act, 2028 (1971) does not discriminate against union between castes.

21. The same country of origin information indicated that while there may be some resistance to inter-caste marriage in rural areas, they are more widely accepted in urban areas including Kathmandu. In addition, although the applicant has claimed that she would not be able to obtain state protection if she did face discrimination this is contradicted by the same country of origin information, which reports that the police have taking action to pursue reports of inter-caste discrimination, even within families. 

22. Having considered the evidence before it the Tribunal is not satisfied that the applicant would face difficulties upon return to Nepal due to her inter-caste relationship or any other reason. This is based on the following: the applicant has now separated from her previous de facto partner, she has only had a de facto relationship while living in Australia, and although the applicant gave evidence that she advised her family of the relationship there is no evidence before the tribunal that anyone in the wider family or general community are aware of the relationship.  In addition, even if the wider family and/or community were aware of that the Tribunal finds it has been an increased acceptance of inter-caste relationships, especially in urban areas.

23. As such, the Tribunal finds that there is not a real chance the applicant would suffer serious harm if she returns to Nepal, either from her family, her extended family or society in general.

24. In making these findings the Tribunal has considered relevant country of origin information, including a report by the Department of Foreign Affairs and Trade (DFAT) 2016 regarding the treatment of women in Nepal. However, in distinguishing the circumstances in the current matter from those in the report, the Tribunal notes the applicant is not in a category of women that face particular disadvantage, including divorcees, widows or sole parents.

25. In addition, the applicant has a relatively high level of education, having obtained [a qualification] in Australia, and has had work experience in Australia in [different areas of work]. Having considered these factors the Tribunal finds the applicant would not be at the distinctive disadvantaged experienced by some women considered in the DFAT report.

26. 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).

27. 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). As noted above, the Tribunal accepts that the applicant previously had a de facto relationship in Australia, and that the relationship is no longer ongoing. The Tribunal is not satisfy that the applicant would face negative consequences in the future if she were to return to Nepal. As a result the Tribunal finds that it does not consider that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that she would suffer significant harm. That is, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

28. 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

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

    Gina Towney
    Member