1504601 (Refugee) - [2016] AATA 3674

1504601 (Refugee) [2016] AATA 3674 (29 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1504601
COUNTRY OF REFERENCE:                  India
MEMBER:Nicola Findson
DATE:29 March 2016
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 29 March 2016 at 1:09pm
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 India, applied for the visa [in] April 2014 and the delegate refused to grant the visa on [in] March 2015.
Background and Protection Claims
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.
In his application for a protection visa, the applicant, who is [age], indicated that he is a Hindu from Ludhiana, Punjab. The applicant indicated that he speaks, reads and writes English, Hindi and Punjabi. The applicant indicated that he finished secondary school in India in [year] and then went on to complete a [tertiary qualification].
The applicant departed India on a valid passport and entered Australia [in] May 2008, as the holder of a student visa.
As to the questions on the application asking why he left India and what he fears will happen to him if he goes back, the applicant’s responses are vague. He states that he left his country “for higher education in Australia and a better future”. He states that at the time he left India, “I did not have harm to my life and property but at present circumstances have changed”. He indicates that “my life is in danger this is what I feel like cause they attacked on my family couple of months ago and father was in hospital for long time in ICU and he had multiple stitches on his head and few injuries on his body too. They was about to kill my father and I am pretty scared to deal with all this anymore”. The applicant indicates “my life is completely in danger, cause I am the oldest one in my family and educated they just want to ruin our family because of some old enemntiy [sic]”. The applicant indicates that there are people waiting for him to return to India, so that they can get their “revenge”.
The Delegate’s Decision
In a decision record, the delegate sets out his findings and reasons for refusing to grant the applicant a protection visa. In summary, the delegate expressed grave reservations in relation to the credibility of the applicant. However, the delegate decided not to make a finding in respect of the applicant’s overall credibility because the delegate made relevant findings on the applicant’s statutory effective protection. In particular, the delegate found that the applicant has access to effective state protection in Nepal by the operation of the bilateral residency treaty known as the Treaty of Peace and Friendship between India and Nepal. The delegate went on to find that the applicant has a present right to enter and reside in Nepal. The delegate then found that pursuant to s.36(3) of the Act, Australia is taken not to have protection obligations in respect of the applicant because the delegate found the applicant has not taken all possible steps to avail himself of the right to enter and reside, whether temporarily or permanently, in Nepal.
Application for review
The applicant applied to the Refugee Review Tribunal on [in] April 2015, for a review of the delegate’s decision. The Tribunals Amalgamation Act (Cth) 2015 took effect on 1 July 2015. Transitional provisions of that Act had the effect that an application for review to the Refugee Review Tribunal (now abolished) is taken to be an application to the Administrative Appeals Tribunal.
Evidence provided at Tribunal hearing
The applicant appeared before the Tribunal on 30 September 2015, to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s current partner, [Ms A]. The applicant was not represented in relation to the review.
After providing an outline of procedural aspects of the hearing, the Tribunal invited the applicant to provide evidence and arguments in relation to matters arising in his case. The Tribunal explained that it would consider a number of issues, including in his circumstances as a citizen of India, whether he has a present right to enter and reside in Nepal. And, if that is so, the Tribunal explained that it must consider whether pursuant to s.36(3) of the Act he has taken all possible steps to avail himself of the right to enter and reside, whether temporarily or permanently, in Nepal. It explained that if this was the Tribunal’s finding, then pursuant to s.36(3) of the Act, Australia would not have protection obligations in respect of the applicant.
The applicant confirmed that he holds a passport issued by the Republic of India, which was recently renewed, and which will expire [in] 2025.
The applicant told the Tribunal that his father is an [occupation]. His mother is a homemaker who cares for the applicant’s [siblings], one of whom is severely disabled and the other who is a student. The parents of the applicant also support [relatives] in their home. As to family in Australia, the applicant told the Tribunal that he has been in a defacto relationship with [Ms A] - a [country] citizen – for the last two and a half years, and that they were expecting a baby together. The applicant also told the Tribunal that he has several cousins living in Australia.
The applicant told the Tribunal that he speaks with his family in India about every 2 to 3 months. He last spoke with his mother about 2 months ago.
The applicant told the Tribunal that he is a member of the Brahmin caste, the highest caste in Hinduism.
The applicant confirmed that he had completed a [qualification] after finishing his secondary schooling in India. He also confirmed that he did not work in India at the conclusion of his studies and before coming to Australia.
The applicant told the Tribunal that he has undertaken studies in Australia since arriving in 2008, and in particular, completed a [course]. He indicated that he had also commenced a [different course] as well as a [related course], but that he had not completed these studies because he was “going through a depression”. He told the Tribunal that he had provided medical certificates to the Department to explain his low attendance, but did so too late, so his visa was cancelled. The applicant told the Tribunal that he had sought review of the decision to cancel his student visa as well as Ministerial Intervention when the Migration Review Tribunal affirmed the Department’s decision to cancel the visa.
The applicant told the Tribunal that he had worked in [occupations] since arriving in Australia. However, the applicant indicated that he was unable to work anymore when his work rights were cancelled in 2011. He claimed he has cleaned and cooked for friends in return for accommodation and food over the years. He also claims that [Ms A] and her family have supported him since their relationship began.
When asked to explain his claim to fear harm if he returns to India, the applicant told the Tribunal that in 2009, his family forced him to return to India, to enter in to an arranged marriage with a 19 year old girl, named “[Ms B]”, also of the Brahmin caste. He returned to India in April 2009, in order to be married. However, 3 weeks after his wedding, he travelled back to Australia without his new wife and they have not lived together since then. The applicant told the Tribunal that in 2010 he told his wife that he was not happy to be married to her, and after this her family became hostile towards him. The applicant claims that the family of the girl he married – in particular, her father, her Uncle and her [siblings] – will kill him for bringing shame on their family if he returns to India. The applicant claims that at the beginning of 2013, his father was attacked and suffered life threatening injuries. Further, the applicant claims that he received two or three threatening telephone calls in 2013 and 2014.
The applicant told the Tribunal that it was the uncle of [Ms B] – [name] – a well-connected man in Punjab, who wanted the applicant to marry his niece. The applicant described their big wedding: 600-700 guests attended the celebration which took place at a marriage palace in [location] (where the bride’s family live and about 200kms from the applicant’s home address); lasted two days; and cost her parents about AUD$50-60,000. When asked about the wedding ceremony, the applicant told the Tribunal that there was a fire in the middle and they did seven rounds of it; rings were exchanged; and they ate and drank. The applicant told the Tribunal that his father arranged for a party after the wedding, which cost him around AUD$20-30,000.
The applicant told the Tribunal that he does not have a marriage certificate or any photographs of the event. Further, he does not know whether the marriage was, in fact, legally registered. When asked why he was unable to provide any evidence of the marriage, the applicant explained that it had been a long time since the wedding and that he was not interested in being married.
The applicant indicated to the Tribunal that his arranged wife was also against the marriage. He indicated that [Ms B] had visited him when he returned to India for a brief time in 2010, and it was at that time they had discussed how unhappy they each were to be married.
The applicant told the Tribunal that [Ms B] has never been to Australia and that they have not spoken to one another in over 4 years. He has no idea where she is currently living or what she is doing with her life. The applicant also told the Tribunal that since the wedding, he has not spoken with any of [Ms B]’s family.
When asked if he experienced any harm or trouble when he returned to India in 2010 and 2011, the applicant explained that he returned to visit his sick grandmother and family on these occasions. He further explained that he had experienced no harm when he returned to India because his family considered that they were both young and that they might “change their minds”.
The applicant told the Tribunal that he had received 2 or 3 threatening telephone calls in 2013 and 2014. He told the Tribunal that he did not know who it was that called him, but felt sure it was someone from the “girl’s side, because they think I have betrayed them”. The applicant indicated to the Tribunal that during the calls he was told: “As soon as you get to India, we are going to chop you off”. He changed his mobile phone number and has not had any further threatening calls since he did so.
The applicant also described an attack on his father at the end of 2012. The applicant told the Tribunal that about [number] people with covered faces arrived at his father’s shop, which is 20-30kms away from his home, on motorbikes and asked for his father by name. The applicant told the Tribunal that these people then hit his father with knives, and then after about 10 minutes ran away. The applicant indicated to the Tribunal that his uncle was also at his father’s shop when this attack took place. Although he could not do anything to stop the attack, the uncle took the applicant’s father to the hospital for treatment. The applicant told the Tribunal that his father suffered a head wound which required numerous stitches and he needed to spend [number] weeks in the hospital. The applicant also indicated that his father lodged a police complaint about the attack. However, the police were not able to find the perpetrators and were of no help.
The applicant produced to the Tribunal photographs purporting to be of his father in an injured state at a hospital. The applicant also claims he provided the Department with original, untranslated copies of a police report as well as newspaper articles (published in the [name] newspaper as well as the [name] newspaper) about his father’s attack, but that these documents were not registered by the Department. The Tribunal was unable to locate this material on the Departmental file. The applicant told the Tribunal that he did not have, and could not obtain, any further copies of this evidence.
When asked if there was any possibility that this could have been a random, criminal attack on his father, the applicant responded to the Tribunal that his father is a well known and good man and there would be no reason, other than the applicant’s failed arranged marriage, for anyone to attack him.
The applicant told the Tribunal that his father sent photographs of himself after he was attacked, so that these could accompany his protection visa application. His father has told the applicant that it would not be safe for him to return to India. The applicant claims that his ex-wife’s family have hurt his father, so they will hurt him.
The applicant told the Tribunal that the uncle of the girl he was forced to marry knows a lot of people and could easily arrange to harm him. The applicant told the Tribunal “I have betrayed her and her family and brought shame to her family”.
When the Tribunal suggested that the police would be able to provide effective protection if he was concerned for his safety, the applicant said that the authorities would not help. He told the Tribunal that in India, if people have money, they can get away with things.
When asked what his original plans were in coming to Australia, the applicant said his plans were not to apply for permanent residency. However, when he was forced to marry in India, those plans changed. The applicant described to the Tribunal suffering depression and stress as a result of not wanting to be married. His aim now, is to remain with his partner in Australia; finish his studies; open a restaurant and become a permanent resident.
The Tribunal was told that the applicant’s family do know that he is in a relationship with [Ms A], and while they are not very accepting of it, he does not fear harm from his family for having entered in to this relationship.
When asked to comment on the possibility of moving to another part of India, the applicant replied that it would be difficult to relocate, because people speak and live very differently in different regions of India. The applicant also said that his ex-wife’s family would track him down if he relocated to some other part of India. He also said that he would want to take his current partner and their child with him if he returned to India, but would be very concerned for their safety. He explained that if his ex-wife’s family become aware that he has another partner – who is not Indian – and a child, they would be killed as well. The applicant told the Tribunal that if you marry outside your caste or religion in India, people get killed.
The Tribunal queried the applicant about why the family of his ex-wife would be interested in targeting him for harm when he returned to India, given that both [Ms B] as well as himself did not want to remain married, and given that several years had passed since they had separated and had any contact. The applicant explained that [Ms B]’s family would consider that he betrayed them and that they would wait until he went back to India to get their revenge.
The applicant explained the delay in making his application by claiming that he did not think he would need to apply for a protection visa. Rather, he held a substantive visa and it was his plan to sort out the cancellation of this student visa in order not to return to India. The applicant told the Tribunal that he had a representative assisting him during the review of his student visa cancellation and that she had informed him that he could not apply for any other type of visa while awaiting the outcome of the student visa review application and request for Ministerial Intervention. The applicant told the Tribunal that his representative had her licence cancelled while she was assisting him with his student visa review application and request for Ministerial Intervention. The applicant indicated to the Tribunal that his representative received correspondence on his behalf, but that she did not forward it on to the applicant. However, the applicant indicated that when he did learn that the decision to cancel his student visa would not be overturned and that his request for Ministerial Intervention was unsuccessful, he immediately applied for a protection visa.
The Tribunal queried why the applicant had not mentioned any problems arising from separating from his wife with the Department until his protection visa application. The applicant explained to the Tribunal that he never wanted to marry this girl, so he did not see the need to mention her.
The Tribunal also queried the applicant’s claim raised during his departmental interview that his father borrowed a significant amount of money – approximately AUD$20,000 - from a friend to fund his studies in Australia, and that the applicant fears that he would be forced to work for his father’s friend for no pay and/or be harmed and/or killed if he was made to return to India. The applicant explained to the Tribunal that he was not sure why he was in danger if he returned to India at the time of the Departmental interview. However, it was the applicant’s understanding that this money had been repaid and that he was confident that now his only concern is about [Ms B]’s family seeking revenge for him separating from [Ms B].
When asked to comment on the apparent right he has to enter and reside in Nepal, the applicant said that he has been in Australia for a long time; he has never been to Nepal; he has no one to live with in Nepal; and that a very different language is spoken there, which he would find difficult. He also said that, if it were just him, he could easily leave Australia and go to Nepal, but he had to consider his partner and their child, and it would be hard for them. He also told the Tribunal that Brahmin people are everywhere, and that because he should not get married to a woman from a different culture or religion, his partner and their child would be in danger. When asked if he had made any inquiries about going to Nepal, the applicant told the Tribunal that he had “googled” it on the internet to learn more about it.
The Tribunal was told by the applicant’s current partner, [Ms A], that she was a [country] citizen, who had been living in Australia with her family for the last six years. [Ms A] explained to the Tribunal that alternative visa options had been explored to enable the applicant to stay in Australia with her and avoid returning to India. She indicated that it might be open for her to sponsor the applicant as her partner, but that both her and the applicant would have to return to [country] for this application. Given that most of her family is in Australia, including a child from a previous relationship, she did not want to do that. [Ms A] told the Tribunal that knowing the applicant could be sent back to India was stressful. She indicated that she would follow him to India if he had to return there, but she did not want to be in that situation. She was aware of the telephone threats to the applicant and had seen the photographs of the applicant’s injured father, and she was extremely worried for her partner.
RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘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.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant satisfies the criteria for a protection visa, and whether Australia is taken not to owe protection obligations to the applicant because of s.36(3) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant has provided a passport from India. In the absence of any evidence to the contrary, the Tribunal has assessed the applicant’s claims against India as his country of nationality.
Credibility issues
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Jandbook also satates (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by the applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so, it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal does have concerns about the applicant’s credibility. However, while the evidence in relation to his arranged marriage is vague and unsubstantiated, the Tribunal is prepared to accept that the applicant did return to India in April 2009 in order to enter in to an arranged marriage with [Ms B]. Further, the Tribunal formed the view that the applicant holds some fear of disapproval by members of [Ms B]’s family, as well as his own family, for separating from his wife and leaving their arranged marriage. The Tribunal accepts as plausible the fact that the applicant’s intention to not remain married to [Ms B] may be viewed with disfavour by members of both his wife’s family as well as his own family. However, based on all of the evidence, the Tribunal has significant doubt that [Ms B]’s family, or anyone else, holds a serious intention to seriously harm the applicant should he return to India. In this respect, the Tribunal found the applicant’s evidence as to the harm he fears vague, general and overall not convincing. The Tribunal found the evidence of the significant delay in the applicant applying for protection after he claimed to have informed his wife that he did not want to remain married to her; the evidence that he returned to India in 2011; the evidence that he had not had any contact with [Ms B] or any of her family for several years; and the evidence of the time that had lapsed since the last claimed telephone threat, undermines his claim that he fears serious harm from his wife’s family, or from anyone else if he returns to India. The Tribunal also found the applicant’s evidence as to the claimed attack on his father, as well as the claimed threats directed to him, to be vague and general and overall not convincing.
The Tribunal also accepts that the applicant is concerned about how he, his partner and their child will be treated if they return to India because of their relationship and their different ethnic and religious backgrounds, by the Brahmin community generally. The Tribunal accepts as plausible the fact that the applicant is in a relationship with [Ms A] may be viewed with disfavour by the community generally. The Tribunal accepts that there may be a social pressure on the applicant to marry within the Brahmin caste. However, any reactions of the community in India to his current relationship were not sufficiently worrying to motivate the applicant to raise this as a claim until at the hearing for the first time. The Tribunal also considers the evidence of the applicant that while his parents were not accepting of his relationship with [Ms A], he does not fear harm from them, significant in this regard. Accordingly, the Tribunal finds that the circumstances of the applicant were such that he was not motivated to apply for a protection visa because of harm from the Brahmin community because of his partnership with [Ms A].
Section 36(3) – Right to enter and reside in Nepal
In considering the applicant’s right to enter and reside in Nepal, the Tribunal had regard to the Department’s policy guidance as set out in its Procedures and Advice Manual (PAM3) contained in Chapter 4 of the Refugee Law Guidelines.
Section 36(3) of the Act provides as follows:
36 Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
In determining whether section 36(3) applies in this matter, the tribunal must consider the international bilateral agreement between India and Nepal known as the Indo-Nepal Treaty of Peace and Friendship of 1950 (the Treaty). Article 7 of the treaty provides that Indian nationals such as the applicants can enter and reside in Nepal, on the basis that:
[t]he two governments agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature.
In MIAC v SZRHU [2013] FCAFC 91 (SZRHU) the Full Court of the Federal Court held that the correct test for section 36(3) was that set out by Allsop J (as he then was) in V856/00A v MIMA (V856/00A)[1], that there is
No reason to restrict the meaning of the word ‘right’ to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement, or to exclude from the meaning the notion of liberty or permission or privilege which does not give rise to any particular duty upon the state in question.
[1] V856/00A v MIMA [2001] FCA 1018 at [31], 114 FCR 408 at 419.
In SZRHU the Court was considering the operation of section 36(3) in relation to a Nepalese national’s right to enter and reside in India under the Treaty, but the Tribunal sees no reason why the reasoning of this decision should not apply equally to the case of an Indian’s right to enter and reside in Nepal. Buchanan J held the correct course for the Tribunal to adopt is as follows:
[The Tribunal] should pay regard to the actual terms of the treaty and should also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test.
The Tribunal found no information indicating that there are any practical barriers for Indian citizens being able to travel to and enter Nepal.[2]
Documents that are necessary to enter Nepal
[2] Searches conducted on CISNET, think tanks, academic journals, open source search engines, human rights organisations, non-government organisations, and international news outlets.
To allow Indian citizens to make travel on the basis of the following document:[3]
·     Passport, or
·     Driving license with photograph, or
·     Identity card with photograph issued by a government body, or
·     Ration card with photograph, or
·     Voter identity card with photograph, or
·     Registration certificate issued by the Indian embassy to the Indian citizen staying in Nepal, or
·     Ad hoc/temporary identity card issued by the Indian embassy to the Indian citizen in the event of exigency, or
·     Document with photograph and setting out identity, issued by the sub-divisional magistrate or authority there above.
[3] Nepal Immigration n.d., ‘Information for Indian Citizens’
The Nepali government’s published entry requirements from Indians make it clear that Indian nationals are free to enter Nepal upon presenting basic forms of photographic and other identification. Country information suggests that the privilege granted is in practice, rarely denied, and enjoyed by many Indians and Nepalis on a daily basis.
Terms of the Treaty and administrative arrangements
A majority of the Full Federal Court in SZRHU found that the terms of the Treaty, while reflecting a mutual right of residence, did not appear to give rights of entry and so did not of itself support a finding of a right to enter and reside in India for the Nepali applicant.[4] However, the Court indicated that the tribunal should pay regard to the actual terms of the treaty and also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens satisfy the requisite test of a liberty, permission or privilege lawfully given, to enter and reside in the country.[5]
[4] MIMAC v SZRHU (2013) 215 FCR 35, per Buchanan J at [88], Tracey, Robertson and Griffiths JJ agreeing.
[5] MIMAC v SZRHU (2013) 215 FCR 35, per Buchanan J at [90].
The Full Federal Court remitted the case for reconsideration to determine whether the applicant in that case has a right of entry within the sense described by the Federal Court in V856/00A.[6]
[6] V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408; [2001] FCA 1018.
Subsequent judgments of the Federal Circuit Court have upheld decisions in which the Tribunal, following this approach, has found that the administrative arrangements for entry, when read in light of the terms of the Treaty, amount to an entitlement to enter and reside consistent with that described in SZRHU.[7]
[7] SZTQO v MIBP [2014] FCCA 2636 (Judge Barnes, 30 October 2014); SZTPK v MIBP [2014] FCCA 2259 (Judge Driver, 31 October 2014) at [24]; SZRUT v MIBP [2015] FCCA 262 (Judge Street, 5 February 2015) at [30].
Having regard to the information before it, including the evidence indicating the applicant is the holder of a current passport issued in his name by the Republic of India and expiring in 2025, the Tribunal finds that the applicant has a right to enter and reside, whether temporarily or permanently, in Nepal and the right is one that presently exists as he is an Indian citizen, a fact which he is able to demonstrate by way of his current Indian passport.
Having regard to all of the evidence, the Tribunal is satisfied that the Treaty and the arrangements between India and Nepal establish a liberty, permission or privilege in favour of Nepali and Indian citizens, including the applicant, and satisfy the test articulated by Allsop J in V856/00A and endorsed by the court in SZRHU.
Having regard to this evidence, and to the terms of the Treaty and the administrative arrangements for entry as summarised above, the Tribunal finds that the applicant does have the right to enter and reside in Nepal for the purposes of s.36(3). Further, having regard to all of the evidence, the Tribunal finds the applicant has not taken any step to avail himself of that right.

The Tribunal has considered the applicant’s evidence that he has never been to Nepal; that he knows no one there; there are problems there also, and he does not want to go there. Notwithstanding, the Tribunal finds that the applicant has not taken all possible steps to avail himself of the right which he currently has to enter and reside in Nepal for the purposes of s.36(3) of the Act.
Section 36(4) – Well-founded fear of persecution or real risk of significant harm in Nepal
Section 36(4) of the Act provides that s.36(3) does not apply where the applicant has a well-founded fear of persecution (s.36(4)(a)) or there is a real risk of significant harm (s.36(40).
No statistical information was found on the employment prospects or level of unemployment of Indian nationals who have moved to live in Nepal. This may be due to the lack of records of Indians moving into Nepal given the open border.[8]
[8] Adhikary, D. 2002, ‘India, Nepal: Stuck at the border’, Asia Times, 10 February
The Tribunal has taken into account that the applicant is in a relationship with a [country] national residing in Australia and that they are expecting a baby together. It also considered the applicant’s claim that he has never been to Nepal, has no desire to go to Nepal, and knows no one there. The Tribunal also accepts general country information which suggests that Nepal is a poor country with challenging economic circumstances which may have deteriorated further since earthquakes in April and May 2015.
Section 36(3) does not permit a decision maker to consider whether the exercise of a right to enter and reside is reasonable, rather it requires a consideration of whether a person has taken ‘all possible steps’ to avail themselves of a right to enter and reside. The Australian courts have confirmed that the phrase ‘all possible steps’ should not be construed as ‘all steps reasonably practicable in the circumstances’, ‘all reasonably available steps’ or ‘all reasonably possible steps’.[9]
[9] NBLC v MIMIA, NBLB v MIMIA (2005) 149 FCR 151 per Graham J at [64], Wilcox J and Bennett J agreeing.
The Tribunal considers that while the applicant may face challenges in settling in Nepal, s.36(3) does not incorporate any requirement to examine such matters[10]. Nor are Australia’s protection obligations enlivened by virtue of the possibility that a person may suffer privation or be exposed to significant difficulties in maintaining a lifestyle by exercising such a right outside Australia.[11]
[10] SZMWQ v MIAC (2010) 187 FCR 109
[11] SZMWQ v MIAC (2010) 187 FCR 109 per Rares J at [32]. However, in SZRTC v MIAC [2014] FCAFC 43 at [48].
The Tribunal considered whether the parties the applicant claimed seek to harm him might locate the applicant in Nepal. Based on the Tribunal’s assessment of all the available evidence before it, and in particular its significant doubt that [Ms B]’s family holds a serious intention to seriously harm the applicant should he return to India, the Tribunal does not consider that members of [Ms B]’s family would make any attempt to find the applicant in Nepal. The Tribunal places weight on the evidence of the applicant as to his right to enter and reside in Nepal, significant. In particular, the applicant’s evidence that if he had to leave Australia and go to Nepal alone, without having to consider [Ms A] and their new child, he could easily do so. The Tribunal therefore finds it is not satisfied there is a real chance the parties who the applicant claims would harm him if he returns to India would travel to Nepal to locate and harm the applicant there. Further, the Tribunal considered whether the applicant will face harm in Nepal because of the fact that he is in an inter-caste relationship, and concludes based on the evidence before it, including the circumstances of the applicant and in the absence of country information indicating a real chance or real risk of harm, that there is not such a chance of harm to the applicant. The Tribunal also considered whether as an Indian national in Nepal, or for any other reason, the applicant faces a real chance of serious or significant harm, and concludes based on the evidence before it, including the circumstances of the applicant and in the absence of country information indicating a real chance or real risk of harm, that there is not such a chance of harm to the applicant. The Tribunal does not accept that the applicant faces a real chance of serious harm as either a denial of access to basic services which threatens his capacity to subsist or a denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist or under any of the other instances of serious harm specified or more broadly.
Having regard to all the evidence, and to the findings set out in this decision record, the Tribunal finds the applicant does not have a well-founded fear of being persecuted for a Convention reason in Nepal. Further, for similar reasons and based on the Tribunal’s assessment of the applicant’s particular circumstances and the evidence before it, the Tribunal finds there is not a real risk the applicant will be arbitrarily deprived of his life in Nepal, or that the death penalty will be carried out on him. Having regard to his claims, the country information, and all the circumstances, the Tribunal also finds there is not a real risk the applicant will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is removed to Nepal. The Tribunal therefore, does not find there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm in Nepal.
Sections 36(5) and (5A) – Refoulement from Nepal
The Tribunal has considered the provisions in s.36(5) and s.36(5A) of the Act which excludes the operation of s.36(3) of the Act where a country will return a non-citizen to another country where the non-citizen will be persecuted or face a real risk of significant harm. The Tribunal finds no country information before it to suggest that the government of Nepal returns Indian nationals to India.
Further, the Tribunal finds that under the terms of the Treaty, the government of Nepal agreed to grant Indian nationals reciprocal privileges to Nepali citizens in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature. The Tribunal finds that the applicants does not have a well-founded fear that Nepal will return him to India and that s.36(5) and s.36(5A) are not enlivened.
For all of the above reasons, the Tribunal finds Australia does not have protection obligations in respect of the applicant by the operation of s.36(3) of the Act.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
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.
Nicola Findson
Member