1504491 (Refugee)

1504491 (Refugee) [2017] AATA 306 (23 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1504491
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Gina Towney
DATE:23 February 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 23 February 2017 at 12:50pm

CATCHWORDS
Refugee – Protection visa – Nepal – Social group – Inter-caste marriage – Inter-class marriage – Domestic violence – Divorced woman – Threats to family – Credibility issues
LEGISLATION
Migration Act 1958
, ss 36, 65, 499

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

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).
The applicant, who claims to be a citizen of Nepal, applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] March 2015.
In the application the applicant recorded (in summary) that she travelled to Australia as a dependent on her husband’s Student Visa, and whilst in Australia her husband had abused her and this had led to a separation. The applicant submitted that she would be unable to return to Nepal due to the social pressure in relation to divorce and separation, and the inability to support herself financially. The applicant also said that her family would not accept or support her upon return, as they believe that she has brought shame on the family.
The applicant also submitted that her ex-husband’s family threatening her and her parents, claiming the applicant is a low class and uneducated. The applicant went on to record that her father is working in [another country] to support the family, and her ex-husband threatens him every day, and that her ex-husband would not allow her to live either in Australia or Nepal. In relation to the protection from authorities, the applicant claimed this was a common issue in [Nepal] and there were limited rights and laws protecting women in such situations. The applicant recorded she had contact with her family in her home country via telephone.
In support of her application the applicant provided a Marriage Registration Certificate, recording the marriage took place [in] March 2012. The applicant also submitted a Statement of a Witness, dated [in] March 2014, from the [Australian] police force. The statement recorded the following (in summary):
·On the same date ([in] March 2014) the applicant and her husband had an argument on the basis of a previous relationship the applicant had before she was married that her husband was unaware of. As the argument escalated the applicant’s husband rang her family and blamed her for having a prior boyfriend without his knowledge;
·On the evening of the same day the applicant’s husband physically assaulted her. When their roommates arrived home the applicant was crying, but applicant’s husband told them ‘nothing happened’. The document went on to record the applicant gave permission to have the injuries photographed.
The applicant also provided a copy of Final Orders for an Apprehended Violence Order, dated [in] September 2014 with the ‘person in need of protection’ (PINOP) being the applicant and the defendant being her husband. The order was in force for a period of 12 months.
In support of her application the applicant also submitted Statements, one dated [in] April 2014 and the other one dated (translated). The statements recorded the following (in summary):
·the applicant is [part] of the Hindu family, with her siblings and mother residing in Nepal and her father currently working in [another country];
·Due to poverty in her family the applicant was forced in an arranged marriage [in] March 2012. After the marriage the applicant’s husband raped her, and the sexual abuse continued during the marriage;
·The applicant lived with her husband for approximately [number] weeks after marriage, and her husband then left Nepal and travelled to Australia to further his studies. After her husband returned to Nepal her family witnessed some of the domestic violence. As a result her mother indicated she did not want the applicant to accompany her husband upon return to Australia, however her husband and his family made clear that the applicant was now their property. The applicant arrived in Australia as his dependent [in] December 2012. The applicant’s husband behaved rudely from the beginning of their marriage, and verbally, physically and psychologically abused her;
·The applicant had previously had a relationship with another boy but this was not supported by her family. After her marriage her husband began making issues about this boy. He would then become aggressive and abuse the applicant. The applicant was also forced to meet her husband’s sexual desires;
·The applicant was punched [by] her husband [in] August 2013, and as a result she was taken to [a] Medical Centre, however she was told by her husband that if she mentioned that he had hit her she would be killed. As a result the applicant lied to the staff at the Medical Centre and said that she fell in the bathroom. [The applicant later submitted a Statutory Declaration and correspondence from [name], dated [in] December 2014, supporting that she had injured [herself] as claimed];
·On or about March 2012 the applicant became pregnant. In response her husband said [details deleted];
·The applicant’s husband beat her [in] March 2014, and as a result she was unable to go to work for 5 to 6 days. The applicant’s [friend] came to visit and then made contact with his sister and arranged a meeting with her. After a few days the applicant met the sister and she organised a meeting with the GP. The GP organised a visit to a psychiatrist, and the applicant was referred to such in [suburb];
·When the applicant returned home her husband was aware that she had been out, and started to beat her. The husband did not accept that the applicant had been to the doctor. As a result the applicant left the house [in] March 2014 (later amended to [a later date in] March 2014). The applicant reported the incident to the police on the same occasion and then moved into her current address with a friend;
·After separating from her husband the applicant’s husband sent people from the [name] community to abuse the applicant. The same people made contact with the applicant’s mother in Nepal, and advised that the applicant must withdraw the case against her husband, otherwise there would be consequences for the mother and the applicant;
·The applicant was not welcomed into her husband’s broader family, including by his father, [siblings] and [family members]. The in-laws believed they were an upper-class family and as the applicant came from a lower class family and they mentally harassed and taunted her, and made her complete household chores;
·The applicant’s [brother-in-law] also attempted to rape her when she was living with her in-laws. When the applicant complained to [the brother-in-law’s] wife she became furious and started to abuse the applicant;
·The applicant was brought up in a Hindu family were daughters are given away forever in the Kanyadaan ritual, whereby the father or brother hands over all rights and duties towards his daughter to the prospective groom. As a result from the date of marriage the applicant’s husband was fully responsible and her life was in his hands;
·If the applicant returns to Nepal she would be a burden towards her family and she will not be allowed to stay with them. Her parents will not accept her due to social pressure, and she will be considered jinxed or a bad influence because she is divorced or separated. As a result her siblings will also suffer;
·Her husband and his family have threatened her parents with consequences if he is charged in Australia, and the applicant believes his family are capable of harming her family in Nepal because they are quite influential. Her husband has threatened her parents over the phone, saying he will not allow the applicant to leave Australia alive, and he will kill her if he finds the opportunity either in Australia or Nepal. The applicant’s husband has also threatened the applicant’s father on an almost daily basis over the telephone, saying that he will kill her mother and siblings in Nepal. The applicant is very afraid of her husband, and he is a crazy man who will harm her;
·The applicant has considered suicide three times since arriving in Australia, but her mother encouraged her to live her life and used religious stories to encourage her to never give up. Later in the submission the applicant stated that she would be forced to commit suicide if she returned to Nepal due to social pressure.
The representative made submissions on the applicant’s behalf, including one dated 3 December 2014 referring to particular social groups of Nepali single women, Nepali single women without protection of male relatives and Nepali some woman facing economic hardship and family violence. The same submission provided extensive country of origin information. Further country of origin information was provided, a chapter from the Violence against Women/Girls Assessing the Situation of Nepal in 2013.
Further submissions were made in the applicant’s behalf including the following (in summary):
·Statement by [a] Consultant Psychiatrist, dated [in] December 2014, and stating that the first assessment of the applicant was on April 2014. The statement supported previous evidence provided by the applicant including her background and the abuse she suffered during the marriage. In summary the doctor recorded that the applicant presented with clinical picture consistent with [mental health condition] on a background of Severe Domestic Violence. It went on to record that she has a range of post-traumatic symptoms of occasional nightmares and flashbacks but she did not meet the criteria for Post-Traumatic Stress Disorder. The document also stated that the applicant had regular appointments with the writer, and that she remains preoccupied regarding potential harm from ex-husband, her concern about her long-term future in Australia, and that she was taking [medications]. The doctor supported the applicant’s claims that she would need to remain in Australia due to the danger of retaliation if she were to return to Nepal;
·Statement from [Mr A], dated [in] November 2014, who was the applicant’s prior flatmate, supporting claims of domestic violence towards the applicant. The statement also recorded that after the separation the applicant’s husband sent people to the writer’s house who told the applicant not to pursue the issue, and that the applicant’s mother had received contact from the husband’s family in Nepal making threats against her;
·Statement from [Ms A], (wife of [Mr A]), dated [in] December 2016, supporting the applicant’s claims of domestic violence whilst they shared accommodation. [Ms A] went on to record that when the applicant left her husband (and lived with the writer) many people came to the house and threatened the applicant, and as a result she moved to [suburb]. The writer also recorded that she travelled to Nepal and had a conversation with the applicant’s mother, who said that the applicant’s husband’s family had threatened the many times, and they would kill the applicant if she returned to Nepal.
After the departmental decision the applicant made a further submission in support of her application, (undated). The submission recorded the following (in summary):
·She cannot return to Nepal because her family are unable to support her economically or emotionally due to pressure of the society, and she cannot be protected by NGOs or INGOs because divorced women are not accepted in society and she cannot be dependent on such organisations;
·The applicant submitted that her ex-husband is a higher caste and he is also rich and he and his family will take revenge on her if she returns;
·When the applicant left her husband [in] March 2014 she was unaware that her Visa would cease in one months’ time, as her husband controlled and maintained all documents and all financial control;
·The applicant situation’s has changed as a father has rejected her economically and socially, and has told her mother not to have further contact. The applicant’s father thinks his responsibility is over and that his reputation is important. As a result the applicant is suffering from stressors and depression;
·The applicant will be unable to obtain employment in Nepal because they will do background checks, and she will not be able to get one without family support.
HEARING
The applicant appeared before the Tribunal on 15 December 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], a friend of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant was represented in relation to the review by her registered migration agent. The Tribunal has not provided a transcript of the hearing, and has only referred to issues it found most important. An audio recording of the hearing is available.
In hearing the applicant stated she had not seen her husband for approximately 2 ½ years, and did not know his whereabouts. Later in the hearing the applicant said she had obtained a divorce from her husband.
When the Tribunal asked the applicant about possible problems for her in the future, she said that her family had received threats and as a result her [siblings] were unable to live at home and were forced to live with [Relative 1] while they attended school (18min on hearing tape). Questioned further, the applicant confirmed that she too had lived with her [Relative 1] when she attended school, and the distance between her parents’ house and her [Relative 1]’s house was not far. Later in the hearing the applicant gave evidence that her [Relative 1] lived approximately 20 minutes’ walk away, and that her [Relative 1], [his wife], their [child] and her mother’s [sibling] also lived at the [Relative 1]’s residence, (44 mins on hearing tape).
The applicant also gave evidence that people in society made threats against her [Relative 1] and her [siblings]. However, despite being asked to provide more detailed evidence on several occasions, such as who had threatened her family members and/or what they threatened with, the applicant provided only broad and general evidence regarding ‘people coming’ and ‘threatening’ them, (20-22min on hearing tape).
The applicant then specified that her family were threatened due to her inter-caste marriage, (22-24 mins on hearing tape) and because she was divorced. The evidence affirmed some of the applicant’s written claims regarding difficulties as a result of an inter-caste marriage.
In hearing the Tribunal questioned the applicant’s claims regarding inter-caste marriage. The tribunal noted that, according to her own evidence, the applicant had entered into an arranged marriage, and that this indicated the marriage was accepted by both her own family and her in-laws, and that this in turn undermined claims of an inter-caste marriage. The applicant then changed her evidence and said it was not inter-caste, but that her husband had a different financial background and was therefore a different class (25 mins on hearing tape).
Questioned further about her claim of an inter-class marriage, the Tribunal again referred to the fact that the marriage was arranged, and that this indicated her in-laws did not have a problem with their son marrying the applicant. The applicant then gave evidence saying that her in-laws were good to her face, but rude to her behind her back in society (29mins on hearing tape). The Tribunal noted that this directly contradicted evidence provided by the applicant previously, regarding poor treatment by her husband’s family.
The applicant then amended her evidence again, and reiterating her written evidence that her in-laws were rude to her face and in society. The applicant also went on to state that she may have forgotten things but that her evidence was true. The Tribunal made clear it was having difficulty accepting the applicant’s evidence as it appeared to be changing.
Asked more about people approaching her [Relative 1] and her family and making threats, the applicant reiterated that people approached her [Relative 1], her siblings and her family and made threats. Asked if the people were known to them, the applicant said yes. Asked if her family had reported any of these threats to the authorities, the applicant said she didn’t know whether or not they had reported, and she hadn’t asked her family about this, (36mins on hearing tape).
Questioned furthered, the applicant said that her [sibling] has been threatened and told not to go to the authorities, that the applicant has encouraged her family to go to the authorities but that her [sibling] had told her they would face harsher conditions if they reported it and that nothing would happen. The tribunal raised that the applicant’s evidence appeared to be contradictory, as her initial evidence indicated she had not discussed going to the authorities with her family, and her later evidence indicated that she had (38-40 on hearing tape).
In response the applicant said she thinks that her family did not reported it to the authorities because they ‘love their life’, and her ex-husband’s family were waiting for her to return, and her ex-husband’s family were well off and believed they could do anything. The Tribunal again referred to the fact that the applicant had entered into an arranged marriage, and that this indicated that any disparity between the families, including financial differences, were not great (41mins on hearing tape). In response the applicant said she did not know about this but that her mother-in-law’s [sibling] was her mother’s [relative], and she did not know why the family treated her so poorly.
Later in the hearing the tribunal raised concerns with the applicant’s claim that her and her family were under threat, in light of the applicant’s evidence that her mother continued to live in the village alone, while the [siblings] lived with [Relative 1], and her father worked overseas. In response the applicant said her mother had nowhere to go, because her house and land is there.
The tribunal reiterated that it found it difficult to accept that the applicant’s family were under threat, as her mother continued to live alone, with her father working overseas. In response the applicant referred to her father’s reaction to her own divorce (56 mins on hearing tape). The Tribunal stated that this report response appeared to avoid the issue that had been raised.
The tribunal asked the applicant why she could not live with her mother upon return to Nepal, as her mother appeared to be living in the village without threat. The applicant responded by saying she may be able to live there if her father accepted her, and people treated her well, but that she has seen how poorly others had been treated after divorce.
The tribunal referred to country of origin information, which noted an increase in divorce rates and a reduction in social stigma. The applicant said there may be a reduction elsewhere but for Dalits the stigma was still there, (1.02mins on hearing tape).

During the hearing the Tribunal stated that it accepted that the applicant had a genuine relationship with her husband, and that there was domestic violence within the relationship. However, the tribunal explained to the applicant that it must consider a forward-thinking test, and that it had difficulty accepting the applicant’s claims to fear in the future. The tribunal also stated that contradictions in the applicant’s evidence raised doubts in relation to the specific evidence, but also the applicant’s evidence more generally.
The applicant’s friend, [Ms A], gave evidence in support of the applicant. After [Ms A] provided evidence to the tribunal, the applicant raised that [Ms A] had stated that the applicant returned to her husband’s premises approximately 5 to 6 months prior to the hearing, (being approximately mid 2016), to obtain her clothing, but that [Ms A]’s evidence was not correct and that [Ms A] had made an error. The applicant went on to state that although [Ms A] stated she had returned to obtain clothing 5 to 6 months prior, it had actually happened at the time of separation, (being [date] March 2014). The tribunal asked the applicant why [Ms A] would provide such evidence if it was not true, and the applicant said she thinks that [Ms A] forgot, (1.41- 1.43mins. on the hearing tape).
At the end of the hearing the applicant gave evidence that her ex-husband is scared to cause harm to her whilst in Australia, as he is afraid of the police and the law, but that he would have the opportunity to harm her if she returned to Nepal. The applicant said the situation would be easier if her father had accepted her, but he has not done so.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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).
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.
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’).
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.
The issue in this case is whether or not the applicant is owed protection by the Australian authorities. In considering this the tribunal must consider the future treatment of the applicant and/or her family if she were to return to Nepal. The applicant has claimed to fear returning to Nepal due to threats of abuse, exclusion, lack of financial support and social pressure from her own family, her ex-husband and his family, and society in general. The applicant has also claimed she would have difficulty as a single/separated/divorced Nepalese woman without a male protector, and due to economic hardship.
The Tribunal accepts that the applicant was in a genuine relationship with her [husband]. This is based on the Marriage Certificate and evidence of a previous pregnancy during the marriage. The Tribunal also accepts that the applicant suffered domestic violence whilst in the marriage. This is based on the evidence including a Police Statement, made [in] March 2014, Final Orders for an Apprehended Domestic Violence Order, with the applicant listed as the person in need of protection (PINOP), and her husband as the defendant.
However, for the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Inter-caste and inter-class marriage
In relation to both and inter-caste and an inter-class marriage the Tribunal found the applicant’s overall evidence lacked credibility. This was because her evidence changed and was contradictory in nature. For example, the applicant initially gave evidence that she had an inter-caste marriage, and that her family had been threatened due to an inter-caste marriage. However, when this was challenged by the tribunal she amended her evidence and affirmed that she was not in an inter-caste marriage.
The applicant then said that she had an inter-class marriage and that her husband’s family were richer than her family. However, as noted by the Tribunal during the hearing, the Tribunal had difficulty accepting this evidence on the basis that the applicant entered an arranged marriage, which indicated it was an acceptable match to both parties and their families.
Overall, having considered the applicant’s claims regarding inter-caste and inter-class marriage, as well is the applicant’s evidence that she entered into an arranged marriage, the Tribunal does not accept that the applicant had an inter-caste and/or inter-class marriage, and therefore does not accept any claims that flow on from this.
Threats made against the applicant and/or her family
In relation to the applicant’s claims that her husband and his extended family made threats against her, the Tribunal accepts that these have happened in the past. That is, the Tribunal accepts that her husband made threats against her during the marriage, and that her husband and his extended family most likely continued to make threats against her and her family after her separation.
However, the Tribunal has also taken into account the applicant’s evidence that she has not seen her husband for over 2 ½ years, that she is unaware of his whereabouts and that she does not have ongoing contact with him. It has also taken into account that the applicant’s Apprehended Violence Order has ceased to be in effect, that the applicant appeared unaware of any charges or convictions against her husband in relation to domestic violence, (when the matter was raised at hearing). As such, the Tribunal finds that although the applicants fear may be genuine, it is not satisfied that she receives threats currently, and/or that she will be threatened upon return to Nepal.
In relation to the applicant’s claims regarding her extended family being threatened in Nepal, the Tribunal has several concerns with this evidence that are listed below. Firstly, the applicant initially said her [siblings] were forced to live with [Relative 1] due to threats against the family due to the applicant’s actions. However, when questioned further, the applicant said that she too had previously lived with her [Relative 1] when she attended school, and that her [Relative 1] and parents did not live far from each other. This indicated that the [siblings] were living with [Relative 1] due to convenience rather than a need to avoid living in the long term family home.
Secondly, later in the hearing the applicant gave evidence that her mother continued to live alone in the village, while her [siblings] lived with [Relative 1], and her father worked overseas. As raised by the Tribunal during the hearing, this indicates that the mother was not under threat. In making this finding the Tribunal has considered the applicant’s evidence that her mother had nowhere else to go, and that she remained with her house and land, however considering these in light of the applicant’s evidence that her family were under threat it does not find them to be convincing. Overall the Tribunal finds the applicant’s mother’s actions indicate that she does not feel under threat, and they did not support a finding that the applicant’s family have been threatened.
Thirdly, although the applicant made specific claims in written submissions regarding her own safety being threatened, and that of her family being threatened, when asked to provide details regarding these in hearing, the applicant provided only broad and general claims. That is, in the hearing the applicant failed to provide specific evidence regarding who had made the threats, what her or her family were threatened with, and instead referred to problems as a result of an inter-caste marriage (which has been discussed in greater detail elsewhere).
Fourthly, when questioned as to whether or not her family have reported any threats to the local authorities, the applicant gave contradictory evidence. That is, the applicant initially gave evidence that she did not know this information and did not discuss such with her family. However, questioned further, the applicant gave evidence that she had encouraged her family to go to the authorities but that her [sibling] had told her they would face harsher conditions if they reported it and that nothing would happen. As raised by the tribunal during the hearing, the applicant’s evidence appeared to be contradictory, as in her initial evidence she stated that she had not discussed going to the authorities with her family, but her later evidence indicated that she had.
A fifth point is that in the applicant’s written submissions she gave details of being poorly treated by her in-laws and her husband’s extended family. This included physical, emotional and attempted sexual abuse, and indicated poor and dysfunctional relationship between the applicant and her husband’s family. However, opposed to this, during the hearing the applicant repeatedly gave evidence that her in-laws were good to her face, but rude to her behind her back (29mins on hearing tape). The Tribunal noted that this directly contradicted evidence provided by the applicant previously, regarding poor treatment by her husband’s family.
As a result of the applicant’s contradictory evidence, and the lack of detailed evidence regarding who had threatened her family, when the threats had occurred and what had been threatened, the Tribunal is not satisfied that the applicant’s family have been threatened as claimed. That is, the Tribunal accepts that there may have been some contact and heated discussed between the families at the time of separation, including in relation to possible police involvement due to domestic violence, with contact with the applicant and/or her father and/or her mother and/or her extended family. However, it does not accept that there have been ongoing threats made against the applicant and/or her family in Nepal, or that this would occur in the future.
Separated/Divorced/Single Women in Nepal
In both written submissions and at the hearing the applicant made claims to fear returning to Nepal on the basis of being separated, divorced, single woman, and/or without a male protector. During the hearing the Tribunal referred to country of origin information, which referred to the increase in divorce rates and the reduction in social stigma. In response the applicant stated that although things may have changed elsewhere, they did not change for Dalits.
However, having considered the evidence overall, the Tribunal is not satisfied that the applicant would face difficulties upon return to Nepal due to her status as a separated, divorced and/or single woman and/or or being a woman without a male protector, and/or that she would face social stigma or social pressure as claimed, including in relation to being a Dalit. In considering this issue the Tribunal took into account a report by the Department of Foreign Affairs and Trade (DFAT) 2016 regarding the treatment of women in Nepal, including the categories of women that face particular disadvantage, including divorcees, widows or sole parents, but finds there is limited application to the applicant.
That is, whilst accepting certain categories of women may face difficulties upon return, including within their family, more broadly within society and/or economically, the Tribunal is not satisfied that this would be the case in relation to the applicant. In making this finding the Tribunal notes that the applicant does not have any children, and therefore she is not a sole parent and nor does she have any ongoing caring responsibility in relation to such children (which may impact on her ability to obtain paid employment). In addition she is relatively well educated and she has employment experience in Australia.
In addition, although the applicant has claimed that she will not be supported by her family, and that her father has rejected her, the Tribunal does not accept this evidence on face value due to contradictions in the applicant’s broader evidence, (discussed elsewhere). In addition the Tribunal has taken into account the applicant’s evidence that she has ongoing telephone contact with her mother, and occasional contact with her [siblings], and this undermines the applicant’s claims that her father has told her mother to stop contact. As a result, the Tribunal finds that the applicant would be able to return to Nepal and lived with her family, or if she preferred, live independently and financially support herself.
General Observations
Throughout the hearing the applicant appeared to avoid directly answering questions that were asked of her. That is, on several occasions the applicant was asked a direct question and appeared to provide an unrelated answer.
One example of this is when the Tribunal raised that it had difficulty accepting that the applicant’s mother had been threatened when her mother lived alone in the village and father continued to live and work overseas, and in response the applicant provided evidence about her father’s reaction to her own divorce.
Another example of this is when the Tribunal questioned the applicant’s evidence that there was financial disparity between her and her husband’s family on the basis of it was an arranged marriage, and the applicant responded by saying she did not know but her mother-in-law’s [sibling] was her mother’s [relative] and she did not know why they treated her so poorly.
Although the Tribunal has taken into account that the applicant may have been nervous in appearing before it, and the supporting evidence including that by the Consulting Psychiatrist, it found this behaviour indicative of a lack of willingness to provide full and frank answers.
The Tribunal also wishes to reiterate that it has accepted the applicant’s evidence that she was in a genuine and arranged marriage, and that she was a victim of domestic violence both in Nepal and in Australia. The Tribunal also accepts that soon after separating from her husband the applicant and her family were contacted by her husband, and people acting on the husband’s behalf, and told not to pursue any issues against the husband, including domestic violence related issues.
The Tribunal expresses its sympathies for the applicant due to the trauma that she has experienced during her marriage, but notes that it must consider a forward-thinking test in assessing her application. The Tribunal also notes that while the applicant may genuinely believe that she is at risk of harm upon return to Nepal, and this may impact upon her actions and her mental health, the tribunal must apply a more objective test.
In making this decision the Tribunal has again considered the evidence provided in support of the applicant, including a Statement by the Consultant Psychiatrist, in which the doctor advocated in support of the applicant’s claims that she would need to remain in Australia due to the danger of retaliation if she were to return to Nepal. However, once again the Tribunal has had to apply a more objective test, and having considered the evidence provided by the applicant and the relevant country of origin information it is not satisfied that this is the case.
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).
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 outlined above the Tribunal has accepted the applicant’s evidence that she was in a genuine marriage, and that she was the victim of domestic violence whilst in the marriage. However, the Tribunal has not accepted that the applicant is at risk of harm in the future, all that her extended family are at risk of harm in the future. The reasons for this are outlined above. As such the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Gina Towney
Member

[2017] AATA 306

23 February 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction