1505927 (Refugee)

[2016] AATA 3379

1505927 (Refugee) [2016] AATA 3379 (24 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505927

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Gabrielle Cullen

DATE:24 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 24 February 2016 at 10:29am

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, a citizen of Nepal, born in [his home town] area in [year], departed Nepal for Australia [in] October 2008. He fears return as he claims he was formerly in an inter-caste marriage with [Ms A] which is not supported by the society and he is viewed as a traitor; as he is a member of the Nepali Congress Party and had several arguments with the Maoists cadres who he fears will harm and even kill him on return. He also claims to fear return as his ex-wife’s ([Ms A]) first husband ([Mr B]) threatened him after his arrival in Australia. He also claims [Mr B] is linked to the Maoists and he will be physically harmed by him and the Maoists on return because of his ex-wife’s first husband’s animosity towards him and his involvement with the Nepali Congress party (NCP).

3. The applicant departed Nepal [in] October 2008 on [a temporary] visa valid to [June] 2010, which ceased [in] June 2010. He applied for a protection visa [in] August 2014.

4. [In] April 2015 the applicant was interviewed by the Department.  The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.

5. The delegate refused to grant the visa [in] April 2015.  He found that the applicant had statutory effective protection in India. He did not, in the decision, make findings as to the applicant’s fears in relation to Nepal.

6. The applicant appeared before the Tribunal on 11 February 2016 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision.

7. The issues to be considered in this case are as follows.

   ·Is the applicant credible as to his claims?

   ·Does the applicant have a well-founded fear of persecution in relation to Nepal and meet the protection obligations under the Refugees Convention?

   ·Does he meet the protection obligations under the complementary protection provisions of the Migration Act?

   RELEVANT LAW

8. 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

9. 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).

10. 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.

11. 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.

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

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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

19. 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’).

20. ‘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.

21. 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

22. 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

23. 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. This includes, but is not limited to, the following.

    ·The applicant’s protection visa application of [August] 2015, attached statement and identity documents.

    ·Written submissions from the applicant’s representative dated [August] 2014.

    ·Oral evidence provided at the Department interview held [in] April 2015 and Tribunal hearing on 11 February 2016.

    ·Letter from Nepali Congress, District Working Committee, [District 1], [in his home town] indicating the applicant has been a member of the party since 2006.

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

24. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

    Is the applicant credible as to her claims?

    The Applicant’s Claims

25. Having sighted a copy of the applicant’s passport, and on the basis of the applicant’s evidence at hearing, the Tribunal accepts that the applicant is a national of Nepal for the purposes of s.36(2)(a). For the purposes of s.36(2)(aa) the Tribunal accepts that Nepal is the receiving country.

26. The applicant claims in his protection visa application that he left Nepal to avoid harm from the Maoists and other community members because he was in an inter-caste marriage. He claims although he hasn’t experienced physical harm, he was threatened by the Maoists for his involvement in politics and by the community because of his inter-caste marriage. He claims he has experienced harassment and mental pressure. He claims he fears mental and physical pressure on return to Nepal. He also claims his ex-wife’s previous husband, [Mr B], is threatening to harm him physically. He claims he fears the Maoists will harm him due to his activities in Nepal as an active member of the Nepal Congress party.

27. In his statement attached to his protection visa application the applicant claims he is from a very dignified family and an example to the society because of the successful business and career of his father and brother. He claims he joined the Nepali Congress party while undertaking a bachelor degree. He claims that as soon as he joined the party, Maoists threatened him with harm to make him leave and join them. He claims he managed to stand strong on his norms and didn’t join the party and as a result did not have a good relationship with some of the cadres, who are still active with the Maoist party. He claims the civil war came to an end but some people who belong to the Maoist party are taking the incidents that happened during the war as personal and are still threatening the general public and cadres of the opposition party.

28. He claims also while he was studying his Bachelor degree he met a girl named [Ms A], they fell in love and were married [in] July 2008. He claims even though he is Brahmin and from a different caste they got married. He claims his community and society was against it. He claims the inter-caste marriage brought them many hardships within society, which affected his entire family. He claims it became very hard to live day by day. He claims as his father is a responsible [occupation], his father was mentally tortured and believes he should have found ways not to get the two of them married.

29. He claims he decided to come to Australia [and] to make his life secure. He claims as he and his wife were neglected by the community, his father had no other choice but to support them overseas,

30. They arrived in Australia in October 2008 and then he claims he discovered his wife was already married and had a child. He claims her previous husband found out his whereabouts and started to threaten him sand said if he returned he would kill him. He claims [Ms A] then told her that this marriage was her second marriage and she had previously been married to [Mr B]. He claims when he found out they were not even divorced.

31. He claims he then became frustrated, they started arguing and he became mentally exhausted and they started living separately.

32. He claims if he were to return to Nepal he will be targeted by the ex-husband of his wife. He claims this man has also threatened his family members that if he returns to Nepal he will use his political influence to harm him physically.

33. He claims that he is scared the Maoists will link his marriage and politics together and they will find a reason to arrest and kill him. He fears being physically harmed and even killed.

34. In the submission of [August] 2014 the representative indicated that the applicant has been in Australia for 6 years, was married to a Nepali girl and is now separated. He submits that the applicant separated from her a few weeks after their arrival in Australia. He claims the applicant has been receiving threats from his wife’s ex-husband and he submits that the applicant claims that if he returns her ex-husband has warned he will harm him physically. He also claims that as it was an inter-caste marriage with [Ms A] he is acting against the norms of society and considered a traitor in their community. He also refers to the applicant’s membership of the Nepali Congress Party and claims that as he had several arguments with Maoists cadres while in Nepal, the applicant believes they will kill him on return as they may find him a competitor in their area.

35. At the Department interview [in] April 2015 the applicant reiterated his claim as to fearing return from his ex-wife’s former husband. He claims as soon as he arrived this man, [Mr B] began threatening him. He claims that he thinks he is a Maoist and this will also lead him to be targeted by the Maoists on return. He claims he found out his wife had a former husband and child after their arrival in Australia. He claims her ex-husband telephoned and emailed the threats. He referred to his membership of the NCP and that these two matters would join together and the Maoists will target him on return. The delegate then discussed with the applicant whether he had a right to enter and reside in India.

36. At the Tribunal hearing held on 11 February 2015 the applicant repeated his claims but added he fears return from his former wife’s family and society as he left her. He also indicated he is now married to an Australian citizen and applied for a partner visa onshore in November. He said he cannot return to apply for a partner visa in Nepal because of his fear of [Mr B] and as his wife has medical issues. The Tribunal questioned the credibility of his claims and raised its concerns, including raising relevant country information. Where relevant these have been raised below. With regard to matters raised with the applicant under s.424AA he initially requested one week to respond in writing. He then changed his mind and confimed he wanted to respond only orally at hearing, which is what he did when the s.424AA matters were raised with him.

    Assessment of Credibility of Claims

37. As to the applicant’s credibility, while the Tribunal has, as detailed below, significant concerns regarding central aspects of his claims and evidence, there are other aspects of his basic circumstances which have remained consistent over time and which the Tribunal is satisfied are true.  Specifically, the Tribunal accepts the following:

    ·The applicant entered Australia on a [temporary] visa with [Ms A] as his dependent [in] October 2008.

    ·He was married to [Ms A] in Nepal in July 2008 and issued a Nepalese marriage certificate. A divorce was granted by the Family Court in December 2014.

38. As to his other claims, particularly as to him having faced the difficulties he claims in Nepal, or fearing return for the reasons he claims, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness. It follows it does not accept as true that the applicant was in a genuine spousal relationship with [Ms A], or was ever threatened by [Mr B], who he claims is [Ms A’s] former partner, ever faced any difficulties in Nepal as he was living with and married to [Ms A], was involved with the Nepali Congress party or faced difficulties in that regard. It follows it does not accept as true he fears return as her family and society will ostracise him for leaving his ex-wife [Ms A] or that he will face any of the difficulties he claims from the society, Maoaists or [Mr B] or anyone else associated with these people for the reasons he claims. It finds his testimony to be inconsistent and lacking in detail as to these claims for the reasons that follow. The Tribunal is of the view that he has fabricated claims and concocted evidence to achieve an immigration outcome.

    Relationship with [Ms A]

39. Central to the applicant’s claims is that he was in a love marriage with [Ms A] and that he married her although she is from a different caste despite society being against it. He claims he faced difficulties when they lived together, in the manner noted above, as it was an inter-caste marriage and claims he has faced difficulties from her ex-partner, [Mr B], since his arrival in Australia.

40. However, for the reasons that follow the Tribunal does not accept on the evidence before it that the applicant was ever in a genuine spousal relationship with [Ms A] or that they ever lived together in Nepal. Rather it is of the view the relationship was concocted to achieve an immigration outcome. This adds to the finding the applicant is not a credible witness.

41. As raised with the applicant, via the process outlined in s.424AA, he and [Ms A], have provided significantly different evidence as to core matters of the marriage. In particular:

    ·[Ms A] at her Tribunal hearing held on 6 May 2015 ([file number]) to assess her claims for protection indicated that she and the applicant eloped and there was no marriage ceremony, although the marriage was registered. In contrast the applicant stated at the hearing before me that they were married in a temple and while his parents did not attend their friends did.

    ·[Ms A] at her Tribunal hearing held on 6 May 2015 ([file number]) to assess her claims for protection indicated that she met the applicant a few months before they were married. She said it was about four to five months at the Department interview held [in] February 2014. In contrast the applicant stated at the hearing before me and confirmed that they dated for a year before they were married in July 2008.

    ·[Ms A] at her Tribunal hearing held on 6 May 2015 ([file number]) to assess her claims for protection indicated that she and the applicant lived together in [District 1] after they were married, but that her husband would come and go to visit Kathmandu. She said at the Department interview held [in] February 2014 that they did not live with her husband’s family as they lived in the countryside and her [child] had to go to school in the city. In contrast at the hearing before me the applicant indicated that after they were married they lived together at his parent’s house in [District 1], and then 2/3 months later moved to Kathmandu to live to process the visa to come to Australia.

    ·[Ms A] at her Tribunal hearing held on 6 May 2015 ([file number]) to assess her claims for protection claimed that after a year they separated, whereas the applicant stated at the hearing before me it was a few months and in the representative’s submission after a few weeks.

1. When these matters were raised with the applicant at the hearing before me via the process outlined in s.424AA he responded that he does not know her side, they were in love, were dating and hiding from society, they met many times and when they married they went and lived with his family. He said they lived some months with his parents and then lived in Kathmandu for two or three months but went forward and back to [District 1]. He said because it was an inter-caste marriage he was scared of his society and she may have been scared of his family and felt harassed. He said he received much pressure from the society due to the inter-caste marriage as he was male.

2. The Tribunal does not accept his response as in any way explaining the inconsistencies in evidence as raised above. The Tribunal expects if the applicant and [Ms A] were in a genuine spousal relationship they would be consistent  as to whether the eloped to marry or not, where they lived in Nepal after they were married, how long after they came to Australia they separated and how long before they married they were in a relationship or dating. While the Tribunal accepts the applicant’s submission that he does not know her side with regard to her fears, it expects he would be consistent with her as to the matters raised above. These inconsistencies in evidence leads to the finding the applicant and [Ms A] were never in a genuine spousal relationship; rather the relationship was concocted to achieve an immigration outcome. It follows it does not accept his claim that they faced any of the difficulties he claims while they lived together after the marriage as it was an inter-caste marriage as it does not accept they ever lived together or were in a genuine spousal realtionship.

3. This adds to the finding the applicant is not a credible witness.

4. In making this finding the Tribunal has considered that the applicant has presented a Nepalese marriage certificate and it accepts that he and [Ms A] were married in Nepal. However the Tribunal is of the view that a marriage certificate does not overcome its significant credibility concerns as to whether it was a genuine spousal relationship as raised above and that they lived together in Nepal as claimed. Further, while it also accepts that the applicant and Ms. [Ms A] have been consistent that it was a love marriage, the Tribunal is of the view this is general information and it can be easily learnt and does not overcome the significant inconsistences in evidence outlined above.

   Fear from [Ms A’s] Family as he has divorced her

5. The applicant claimed at the hearing before me that he fears return from [Ms A’s] family and society as he has left and divorced her. However as raised with the applicant via s.424AA, the Tribunal has difficulty accepting this to be the case or that he is credible in this regard as this claim was not raised previously at the Department interview or in his statement. When raised with him via s.424AA that this is particularly so as he was asked at the Department interview whether he had anything else to say and he did not refer to a fear of returning to Nepal on this basis, he referred to his family having moved. The brief explanation provided by the applicant is not accepted by the Tribunal as it does not explain why he has only raised his fear of her family and society at the hearing before me. The Tribunal expects that if the applicant fears return from [Ms A’s] society and family that he would have raised it earlier than at the hearing before me. This leads me to find the applicant is not credible as to these claims. This is particularly so as he separated from her, according to his evidence 4/5 months after his arrival in Australia and no evidence has been provided or referred to as to any recent event after the Department interview or submission of his application to create these fears.

6. This adds to the finding the applicant is not a credible witness.

   Involvement Nepali Congress

7. The applicant claims he fears return to Nepal because of his past involvement in the Nepal Congress. He claims on return he will continue to be active. His claim as to his involvement that he joined in 2004 and became a real member in 2005/2006. He claims in his statement that he was threatened by Maoists and requested to join, but that he stood firm to his beliefs and did not join their party. He claims since then he has not had a good relationship with some Maoist cadres who are still active in the party. He said at the hearing before me that he was threatened as he was seen as one of the talented men in his area. He said initially at the hearing before me that he left Nepal because of his association with the Nepali Congress.

8. However despite his claims of threats from the Maoists and that he left Nepal because of a threat of fear of the Maoists, his evidence indicates he was able to live at his home in Nepal up until 2/3 months before he departed when he moved to Kathmandu to apply for a visa. He said this was to obtain his visa for Australia and no evidence was provided that it was for any other reason. In response when raised that this questions the credibility of his claims he was threatened and left Nepal because of his involvement in the NCP and threats by the Maoists he said that the Nepal Congress was strong in his area and they could not grab or kill him just threaten him. The Tribunal has difficulty accepting this response as it does not answer the confusing evidence as to why if he lived in fear and threats, which lead him to leave Nepal why he chose to remain living at his home up until 2/3 months before he departed Nepal. It also does not answer his claim he fled because of the threats due to his membership of the NCP when the party was strong in his area.

9. To add to the confusing evidence is that despite claiming that he left Nepal because of his association with the Nepali Congress, when questioned later as to the delay in applying for protection, in contrast he responded he was not very scared when he came to Australia as he thought the situation would change. When raised with him he said his main reason is the threats by [Mr B] and his involvement with the Maoists. He confirmed that if the situation with [Mr B] did not happen he would be able to return, which questions why he raised his fear of return because of involvement with the NCP in his statement.

10. The applicant’s confusing evidence as to whether he departed because of his claimed involvement with the NCP and threats, and whether he now fears return and how he was able to remain living at home if he was threatened as claimed, adds to the Tribunal’s finding that he is not credible as to his involvement in the NCP and claims of threats in this regard.

11. Also of concern is that despite claiming he was active in Nepal despite the threats and stayed by his norms and will be active in the NCP on return, his evidence is that since his arrival in Australia in 2008 he has not been involved in NCP politics nor followed them because he is scared, feels safe and cannot do anything. In response when raised the applicant said he likes the party and its leaders. The Tribunal does not accept this response and expects if the applicant was active in the party in Nepal and continued to be active in Nepal, despite the claimed threats and fear that when in Australia where it is safe to do so and no Maoists threatening him that if he would also be involved. The Tribunal has below considered his mental state but does not accept this as a reason for not being involved at all in Australia. His lack of involvement in Australia, where it is safe to do so, adds to the finding the applicant is not credible as to his claim of being involved in the NCP in Nepal.

12. Together with the delay in applying for protection visa as raised below, the Tribunal is of the view that he is not credible as to his involvement in the Nepali Congress in Nepal and being threatened or facing any difficulties from the Maoists or anyone else as he claims or leaving Nepal due to this political involvment.

    Fear of [Mr B] – [Ms A’s] Former Partner

13. It is the applicant’s claim that [Ms A’s] former partner, [Mr B] will harm him on return. He claims he has threatened him with harm over the phone and by email. He claims it began only after his arrival in Australia. He claims he did not know [Ms A] was married to [Mr B] before they arrived in Australia or that she had a child. He claims he fears return as [Mr B] is also connected to the Maoists and he will be harmed by the Maoists generally and [Mr B] both because of his relationship with [Ms A] and because of his involvement with the NCP.

14. However, for the reasons that follow the Tribunal does not accept on the evidence before it that the applicant is a credible witness as to having been contacted by [Mr B] or threatened by him or that he fears harm were he to return to Nepal at his hands, the Maoists or anyone else on the basis of his claim that [Mr B] is the ex-partner of [Ms A], [Mr B’s] association with the Maoists singularly or together with his claimed past profile with the NCP.

15. Firstly, the applicant has repeatedly stated throughout the process that he only became aware that [Ms A] was married or in a relationship with [Mr B] before they were married and had a child, after his arrival in Australia in October 2008. However in contrast as raised with the applicant via the process outlined in s.424AA [Ms A] in her application for a protection visa gave evidence at the Tribunal hearing held on 6 May 2015 that she told the applicant about [Mr B] around the time of their marriage in July 2008 and that she had a child. She said the applicant knew everything including that she had been married before and had a child. In response when the concerns were raised and this may lead me to find he is not credible as to these claims, he responded that she never told him. The Tribunal does not accept this response and expects if the applicant is truthful as to the threats that he would be consistent with [Ms A] as to when he found out about her ex-husband.

16. Further, at the hearing before me the applicant said he received many phone calls and one email from [Mr B] threatening him with harm. However as raised with him at the Department interview he indicated that he received many emails. In response when the concern was raised, he said he received some emails. While not determinative this adds to the finding the applicant is not a credible witness as to receiving the threats. While not on its own determinative it adds to the finding the applicant is not credible as to the threats as it expects he would be consistent if he had been threatened with harm by email, whether it was just once or on a number of occasions.

17. Further, the applicant’s inability to provide any detailed evidence about [Mr B], when he was in a relationship with [Ms A] and how long he was in a relationship with [Ms A], undermines his claim that he was ever in contact or threatened by [Mr B]. The Tribunal expects that if the applicant was threatened by [Mr B] at the time he was living with [Ms A], with whom he was in a love marriage, and that he claims it lead to the downfall of their marriage that he would be able to provide some detail as to this man, who he claims has threatened him with harm, other than he is connected to the Maoists. He claimed in response when the concerns were raised that he wanted to know everything but she would not tell him and she hid the truth. The Tribunal does not accept his response as credible as it contrasts to the evidence of [Ms A] that she told him everything about her previous marriage and child. The applicant’s vague evidence lacking in details as to [Mr B] and his marriage to [Ms A] adds to the finding the applicant is not credible as to these claims.

18. Further, as raised with the applicant via the process outlined in s.424AA, it is [Ms A’s] evidence in her application for a protection visa and at the Tribunal hearing held in May 2015 to assess her claims for protection that she has not had contact with [Mr B] for 8 years, and the last time she had any contact was about a year before she departed Nepal in October 2008. She did not refer to any threats being made against the applicant. The Tribunal can find no reasonable explanation as to why [Mr B] would threaten to harm the applicant and have no contact with his ex-wife who the applicant was living with at the time. In response the applicant said he is telling the truth and he knows [Ms A] is in contact with [Mr B]. The Tribunal does not accept this response. It expects if the applicant was threatened and having contact with [Mr B] that this would be referred to by [Ms A] rather than saying she had not heard from him for a year before her arrival in Australia, and expects if the applicant was being threatened by [Ms A’s] ex- partner that she would have had some contact with [Mr B] as well. This adds to the finding the applicant is not a credible witness

19. The lack of detail and inconsistent evidence adds to the finding the applicant is not credible generally and as to these claims.

20. This finding and the applicant’s claim that he departed Nepal because of a fear from Maoists due to his NCP involvement is reinforced by the applicant’s delay in applying for a protection visa. This is particularly so as the applicant stated at the hearing before me that the main reason he fears return is from [Mr B], as he wants to take revenge as he is [Ms A’s] ex-husband/partner and he is scared because he is connected to the Maoists. He also referred to his past involvement in the Nepali Congress. His evidence is he stopped receiving threats from [Mr B] approximately two years after his arrival in Australia in around 2010 when he changed his email and phone and that he stopped being involved in Nepal politics when he left Nepal in 2008. He said he would return to apply for a spouse visa offshore but is scared of [Mr B].

21. As evidenced by the Department decision submitted to the Tribunal by the applicant and the applicant’s own evidence the applicant arrived in Australia [in] October 2008 and applied for a protection visa [in] August 2014, being a delay of approximately 6 years since his arrival and about approximately 5 /6 years from when he claims the threats to his life from [Mr B] began. The evidence indicates his [temporary] visa ceased [in] June 2010 and from this time he was living unlawfully in Australia until he applied for a protection visa.

22. The applicant’s oral evidence as to the reason for this delay was that he was not very scared when he came here, as he thought the situation might change. He said he didn’t know [Ms A] had an ex-husband, and then once he received the phone calls and email he became scared and he said that was in 2008/9. He said he separated from his wife and he was in trouble from his parents. He said he could not continue his [stay], he was stressed, he had no family in Australia and then his visa was cancelled and he became even more stressed. He said that he did not do anything, his mind was all over the place and he did not work. He said his mind could not do anything and he had to hide himself.

23. An applicant’s delay in applying for refugee status is a relevant consideration in the assessment of credibility of an applicant’s claims for refugee status. The period of time that has elapsed between an applicant’s arrival in Australia or when he claims he fears return and the time when he or she claims refugee status, may be considered when assessing the genuineness, or at least the depth, of an applicant’s subjective fear of persecution. As was suggested to the applicant by the Tribunal at hearing such a delay may lead the Tribunal to conclude that the applicant is not genuine in his fear of persecution, in that if he genuinely feared persecution he would have applied sooner. In particular the Tribunal raised with him that if he fears return because of his claimed past involvement in Nepali Politics and because of the threats of harm made to him in 2008 to 2010 it may expect on his arrival he would apply for asylum or sooner than approximately 6 years after his arrival 5/6 years after the threats from [Mr B] began. This is particularly so as it four years since they ceased to when he applied and he was unlawful at this time.

24. The Tribunal does not accept his reason for his delay in applying for protection as it expects that if he truly feared persecution and feared return from [Mr B] and was threatened by him up to 2010 and left Nepal because of the reasons he claims in fear he would have applied sooner.  It does not accept his reason that he did not apply sooner because of his mental difficulties and the stress he was under. Firstly, in this regard no independent medical evidence has been submitted to support his claim that such difficulties interfered with his decision making. The Tribunal has difficulty accepting that he would be in this state for years without seeking medical help or contacting someone to assist him in applying for asylum.

25. His delay therefore adds to the finding he is not credible as to his fear of return and it adds to the finding that he is not credible that he was threatened with harm by [Mr B] in the manner claimed or that he departed Nepal in fear because of his involvement in the NCP and threats by the Maoists.

26. It follows, for the reasons outlined above that the Tribunal does not accept the applicant ever received any threats by telephone or email from [Mr B] or that he fears return on this basis.

27. This adds to the finding the applicant is not a credible witness.

    Credibility Finding

28. For all the above reasons, the Tribunal does not find the applicant to be a credible, truthful and reliable witness as to his claims. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome.

29. It follows based on the applicant’s lack of credibility that it does not accept he joined the Nepali Congress party at any time, and thr Maoists threatened him with harm to make him leave and join them but he managed to stand strong on his norms and didn’t join the party and as a result he did not have a good relationship with some of the cadres, who are still active with the Maoist party and want to harm him on return. It follows it does not accept he continued to be threatened by the Maoists or people who belong to the Maoist party or their associates because of any claimed political activity in Nepal. It follows it does not accept he departed Nepal because of any fear from the Maoists due to his claimed involvement in politics and the NCP, as it does not accept it to be true. It follows that it does not accept that he had several arguments with Maoists cadres while in Nepal as he was involved in the NCP and that he fears the Maoists will kill him on return as they may find him a competitor in their area.

30. On the basis of his lack of credibility the Tribunal does not accept that the applicant was in a genuine  spousal relationship with [Ms A], it was a love marriage and that they ever dated or lived together with his parents or in [District 1] or in Kathmandu or anywhere else. As the Tribunal is of the view the marriage was concocted for an immigration outcome and the applicant never lived with [Ms A] it follows it does not accept that his community and society was against it for the reasons he claims, or that the marriage brought them many hardships within society, which affected his entire family and it became very hard to live day by day. It follows it does not accept as true that either he or his father was mentally tortured by the marriage, and that he and his wife were neglected by the community and his father had no other choice but to support them overseas. It follows it does not accept as true that the applicant left Nepal to avoid harm from the Maoists and other community members because he was in an inter-caste marriage and by the community because of his inter-caste marriage.

1. Based on the applicant’s lack of credibility and as it does not accept he ever lived with [Ms A] or was targeted in the past as he was married to her, it does not accept he fears return as he was in an inter-caste marriage with [Ms A] and will be targeted as he was acting against the norms of society and considered a traitor in their community. Based on the findings of credibility it does not accept he fears return from anyone regarding his claim he was in an inter-caster marriage. Based on the applicant’s lack of credibility the Tribunal cannot be satisfied on the evidence before it that he is truthful as to his claims he was in an inter-caster marriage. Based on the findings above and his lack of credibility it follows that it does not accept he faced any difficulty in the past as he was married to a woman from a different caste or that he has a fear of persecution by her family and the society or anyone else as he was in an inter-caste marriage.

2. On the basis of his lack of credibility the Tribunal does not accept as true that after his arrival in Australia in October 2008 he discovered his wife was already married and had a child and that her previous husband, [Mr B] found out his whereabouts and started to threaten him by phone and email and said if he returned he would kill him. It does not accept as true that as a result he started arguing with [Ms A] and he became mentally exhausted and they started living separately for this reason. It follows based on his lack of credibility that it does not accept his claim that on return he will be targeted, threatened, face harm and death by the ex-husband of his wife, [Mr B] and this man has also threatened his family members which have resulted in them moving. It does not accept as true his claim that [Mr B] will use his political influence with the Maoists to harm him physically and that he is scared the Maoists will link his marriage and politics together and they will find a reason to arrest and kill him.

3. Based on the applicant’s lack of credibility the Tribunal does not accept as true that he fears return from his former wife’s family and society who want to harm him as he left her. It does not accept as true that he cannot return to apply for a partner visa in Nepal because of his fear of [Mr B].

4. It follows it does not accept he or his family will be persecuted, ostracised, neglected by his society and family,  threatened with harm, face mental or physical stress and pressure, be arrested or detained, be killed or face the difficulties he claims from [Mr B], the society, the Maoists or their associates, or his extended family, or [Ms A’s] family or society or anyone else because he was in an inter-caster marriage, has contravened norms and is a traitor to society or because of any involvement with the Nepal Congress or because he had personal arguments with the Maoists or because he was and will be seen as a competitor in the area or because he was married to [Ms A] or for any of the reasons he claims.

5. As the Tribunal has found that the applicant is not genuinely interested in the Nepal Congress party and was never involved in the manner he claims in Nepal, and his evidence is he has not been involved in Australia in politics relating to the Nepal Congress party, it follows that the Tribunal is not satisfied that the applicant will participate in any Nepal Congress party activities in any way on return or will suffer persecution by being prevented from being involved or being prevented from choosing to follow the Nepal Congress party or pursing his political beliefs.

6. The Tribunal rejects his claims in their entirety as to his fearing return from any of the people or groups he claims on account of any of the reasons he claims.

7. In making these findings, the Tribunal has considered the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked.  It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal has also considered the matters submitted by the representative in the written submission. It has also considered the claims made by the applicant that he is stressed and cannot do anything and has mental difficulties. As noted above there is no independent medical evidence to support these claims and the Tribunal is of the view on witnessing him at hearing that he was able to provide his evidence chronologically, and free of any impediment. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.

8. In making these findings the Tribunal has also considered that some information the applicant has provided has been consistent over time. However the Tribunal considers that these matters are relatively easy matters to recall and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness as to these claims and other political claims generally.

9. In making these findings the Tribunal has considered the letter from the Nepal Congress dated [in] July 2007 indicating the applicant was a member of the NCP from 2006. However based on the applicant’s lack of credibility and as raised with the applicant, the prevalence of document fraud in Nepal[1] it places no weight on this letter as evidence the applicant was ever involved in the Nepal Congress Party

   Does the applicant have a well-founded fear of persecution in relation to Nepal and meet the protection obligation under the Refugees Convention?

   [1] See Immigration and Refugee Board of Canada 2009, NPL103010.E - Nepal: Prevalence of forged, fake or falsely acquired documents, including identity documents, professional certifications, membership cards and employment records, 26 January – Accessed 4 May 2010

10. For the reasons outlined above on the basis of the cumulative impact of the applicant’s inconsistencies in evidence, the Tribunal does not believe that the applicant is being truthful as to his claims as outlined directly in the paragraphs above. On the basis of the evidence before me, considered individually and cumulatively, as the Tribunal has found he has not been truthful as to these claims, the Tribunal does not accept as true he or his family will face any of the difficulties he claims, including persecution, serious harm, physical and verbal harm, physical and mental stress, threats, ostracism, death, violence at the hands of his extended family, society, [Mr B], the Maoists and their associates, the family and society of [Ms A], or anyone else on account he was in an inter-caste marriage, he was involved with the Nepal Congress, was married to [Ms A] or his marriage to her has ended or because he had personal arguments with the Maoists or because he was and will be seen as a competitor in the area or for any of the reasons he claims.

11. The Tribunal therefore is not satisfied the applicant faces a real chance of persecution involving serious harm, were he to return to Nepal now or in the reasonably foreseeable future as he was married to [Ms A], discarded left or divorced [Ms A], as [Ms A] was involved with [Mr B], on account of any past or claimed future involvement in the NCP, as he was in an inter-caste marriage or because he had personal arguments with the Maoists or because he was and will be seen as a competitor in the area or for any of these claims considered individually or cumulatively.

12. Therefore, on the basis of the evidence before me, considered individually and cumulatively, I am satisfied that the applicant does not now or in the reasonably foreseeable future have a well-founded fear of persecution arising essentially and significantly for one or more of the five Convention reasons if he returns to Nepal.

    Does he meet the protection obligations under the complementary protection provisions of the Migration Act?

13. Having regard to my findings above as to the credibility of the applicant’s claims I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm, as defined in subsection 36(2A) of the Act as he was married to [Ms A], discarded left or divorced [Ms A], as [Ms A] was involved with [Mr B], on account of any past or claimed future involvement in the NCP, as he was in an inter-caste marriage or because he had personal arguments with the Maoists or because he was and will be seen as a competitor in the area or for any of these claims considered individually or cumulatively.

14. Accordingly I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

    CONCLUSION

15. 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).

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

17. 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

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

    Gabrielle Cullen
    Member