1509124 (Refugee)

1509124 (Refugee) [2017] AATA 359 (16 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1509124
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Gina Towney
DATE:16 February 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 16 February 2017 at 4:48pm

CATCHWORDS
Refugee – Protection visa – Social group – Unmarried mother – Inter-cast – Inter-religious marriage – Harm from former spouses and in-laws – Credibility issues
LEGISLATION
Migration Act 1958, ss 36, 65, 499
CASES
Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105
BAX15 v MIBP [2016] FCA 491
Thuraisamy v MIMA [1999] FCA 1632
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Nepal, applied for the visa [in] August 2014.
The applicant’s claims were based on being a woman, a single mother, and an unmarried woman, divorced woman and marrying into a different religion and caste. The applicant claimed to fear from her family, her ex-husband and the father of her child, and the community in general.
On the application form the applicant also recorded that she has one [son] (date of birth [date]), who is currently living in Nepal.
The applicant submitted a Statement of Claims, received 5 November 2014, which recorded the following (in summary):
·the applicant fears returning to Nepal because she would be seriously harmed as a single unmarried woman with a child;
·The applicant is [a certain ethnicity] and a Buddhist, her father is [occupation], her mother is a housewife, and she is single with one child. The applicant completed schooling at about [age] years of age then helped her family [in the family business];
·Maoists used to come to the applicant’s [home] for food and shelter, and when she was approximately [age] years of age she met a Maoist fighter named [Mr A] (the applicant said she only knew him by this name). He was a very powerful man and intimidated everyone in the village. The applicant fell in love with him and gave birth to her son approximately two years later. The applicant never married [Mr A], despite his promises to do so, and the last time she saw [Mr A] was approximately one month after her son was born;
·Everyone in the applicant’s village knew that she was unmarried when she gave birth to her son, and although her mother supported her, her father made her life very difficult. The applicant’s father is pro-monarchy and her child’s father is a Maoists, and because she is an unmarried woman with a child she is socially unacceptable;
·People in the applicant’s village told her father she was no longer welcome, and her father disowned her and would mentally harass and torture to her. The applicant’s life became so unbearable that she moved to live with her [relative] in Kathmandu when her child was [age] years old. The applicant left her child with her mother with the intention of going to Kathmandu and getting a job and later returning to the village with money;
·The applicant met her husband, [Mr B], whilst living with her [relative] in Kathmandu, as he was studying and lived close to the [relative]’s house. Six months later the applicant married him in a ceremony in a Hindu temple. His family did not accept her because they were from different castes and religions, and because she is an unmarried woman with a child;
·Two to three months after her marriage to [Mr B] her previous partner, [Mr A], went to the applicant’s parents’ village and took her child. [Mr A] also threatened the applicant’s parents and everyone in the village, saying that he would kill the applicant. The applicant has heard nothing of her son since it’s time;
·Nine months after her marriage to [Mr B], in 2009, the applicant travelled to Australia as a dependent on his Student Visa. Approximately 15 to 16 months after they arrived the applicant separated from [Mr B], and she last had contact with him in April or May 2010. She is unaware of whether or not he is in Australia or Nepal. The applicant’s previous visa expired in April 2010;
·The applicant fears the father of her child, [Mr A], will kill her if she returns to Nepal, and if she lives in Nepal he would find her. [Mr A] continues to visit her parents’ village and tell everyone that if he sees her he will kill her. The applicant and her mother are in regular contact and the applicant was told this happened as recently as a few months ago;
·Also, it is not safe for the applicant to return because her father was opposed to her first relationship, and because [Mr B]’s family have never accepted her and they have told her that she has ruined their son’s life;
·The police in Nepal will not be able to protect the applicant, or assist her in finding her son, as although they may be able to protect her on a one-off basis they would not be able to do so from continued attacks;
·it would be very difficult for the applicant to live as a previously married single woman in Nepal, and she would not be able to support herself.
The delegate refused to grant the visa [in] June 2015, and the applicant then appealed to the Tribunal. In support of her application the applicant also submitted a Statutory Declaration, dated 18 November 2016. The Declaration recorded the following (in summary):
·In 2014 there was an earthquake in Nepal and the applicant’s family were affected economically, and they do not want to support the applicant or have her in the house. In addition, [the family business] is not going well;
·The applicant is unable to return to live with her parents because her father is angry with her for ruining his prestige by having a child without being married. The applicant’s family are also angry with her because her previous partner, [Mr A] came to their house and took her son away;
·The applicant’s [relative] is also angry with her because when she married [Mr B] she did not tell her [relative] and she married a Hindu and the applicant is Buddhist. The applicant’s [relative] has not spoken to her since she travelled to Australia (in 2009) and if the applicant was to return to Kathmandu now she would not be able to stay with the [relative];
·The applicant previously looked for employment when she was in Kathmandu with her [relative], but was unable to find work, despite the assistance given to her by her [relative]. The applicant believes that she would be unable to find work upon return, as it is difficult for anyone to find work in Nepal, and even educated people are unable to find employment;
·The applicant believes her life is also in danger as [Mr A] has said he would kill her if she returns to Nepal or tries to see her son. The applicant’s mother told her this a few months before she applied for the Protection Visa but the applicant has not discussed it with her mother since. The applicant believes she would be unable to obtain protection if [Mr A] tried to harm her because she would be attacked by surprise and would not know where or when to expect him;
·The government in Nepal would not assist the applicant because they only help people who are powerful and well-connected. As the applicant has been away for nine years she has no connections to Nepali society. Also, although organisation that help women were raised in the departmental interview the applicant had not heard of these because she came from a village, and, she does not think these organisations would assist her because she is not important or well-connected;
·The applicant also believes [Mr B]’s family are angry with her for marrying because she is a Buddhist, rather than a Hindu, she is from a lower caste and she had a child prior to marriage. [Mr B]’s family have said that she has ruined their son. Also, although she has not officially divorced she has not seen him since 2010;
·The applicant is aware that she is able to enter and reside in India without a Visa, but does not believe she would be able to survive because she does not know the language, and, as a single woman she would not be able to support herself.
HEARING
The applicant appeared before the Tribunal on 29 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The Tribunal has not provided a transcript of the hearing, and has only focused on issues it found to be most relevant. An audio recording of the hearing is available.
In relation to the applicant’s relationship with [Mr B], the applicant previously submitted that her in-laws did not approve of the marriage because it was inter-caste and inter-religious, because she had had a child prior to her marriage and because she ruined their son’s life. The applicant claimed to fear harm from her in-laws if she were to return to Nepal.
Questioned about her relationship with [Mr B], and how it began, the applicant initially said that she lived in the same neighbourhood and [Mr B] would come to her house, he showed her affection so she shared her story, (of being an unmarried mother), (32 minutes at the hearing tape). When the Tribunal questioned the applicant as to why [Mr B] would come to her house, (as they were different castes and different religions), the applicant amended her evidence and said he did not come to her house and that they saw each other in the same neighbourhood, (33 minutes at the hearing tape).
The Tribunal asked the applicant how a relationship between herself and [Mr B] commenced, considering they were opposite sexes, different castes, different religions, and she was an unmarried mother. The applicant responded by saying as they lived close by to use to see each other on the paths and go places together. Asked where they went, the applicant responded by saying ‘shopping’ and ‘on the paths’. The Tribunal questioned this evidence, stating it seemed unusual that to people of opposite sex, different castes and different religions would go out together in Nepal, but the applicant responded by saying because they were different it was okay.
In the hearing the applicant appeared to give contradictory evidence regarding her relationship in that she initially stated that her parents and [relative] came to know that she had married [Mr B] 2 to 3 months after the event, (17.31 minutes at the hearing tape), but later said that she lived with [Mr B] immediately after the marriage, and her parents and [relative] came to know of the marriage at that time, (19.24 minutes at the hearing tape).
During the hearing the applicant gave evidence that she lived with [Mr B] after her marriage, but that his parents did not approve of the marriage. The applicant said that when her in-laws visited their son the applicant ‘would hide’ from them, and she would come out once they left. The applicant gave evidence that [Mr B]’s parents continue to financially support him after the marriage because they believed that he had left the applicant. The applicant also gave evidence that [Mr B]’s parents did not come to know that they continued with the marriage until she and [Mr B] relocated to Australia, (42 minutes at the hearing tape).
Contrary to this, later in the hearing the Tribunal raised that the applicant’s initial Student Visa application recorded that [Mr B]’s parents provided financial support for the applicant and her husband to enter Australia. The Tribunal stated this undermined the applicant’s claims that [Mr B]’s parents had any concerns with him marrying her, including on the basis of inter-caste or inter-religious marriage, and/or her having had a child outside marriage, as well as her evidence that they were unaware of the marriage until she entered Australia. The Tribunal also stated this impacted on its’ assessment of this evidence specifically as well as the applicant’s overall credibility.
In response the applicant made several submissions, including that all of the documents were prepared by [Mr B], and that he and his family may have had a plan to bring her to Australia and leave her here. Later the applicant said that [Mr B] had told her his parents did not know about her, but that he may have been lying, and reiterated her evidence that her husband and his family may have made a plan to bring her to Australia and leave her, (1.28m on the hearing tape).
On a related issue, the applicant reiterated that she would have difficulties with her own parents, extended family and society in general if she returned to Nepal because of the inter-caste marriage. The Tribunal stated that it had difficulty accepting that there was an inter-caste marriage at all, because information before the Tribunal indicated that her in-laws supported the marriage, and this would indicate that it was not inter-caste. The applicant reiterated her evidence that her in-laws may have had a plan to bring to Australia and leave her, and her in-laws never accepted or supported her (1.32 minutes in hearing tape).
In relation to the applicant’s claims regarding [Mr A], the applicant claimed to have had a relationship which produced a child, but that the father [Mr A] failed to marry her despite his promises to do so. The applicant said when the child was approximately [age] years old she travelled to Kathmandu to pursue work, and 5 to 6 months later she married. [Mr A] then returned to her parents’ house and took the child.
During the hearing the applicant gave evidence that she has not taken any steps to see or pursue the child since he was taken by his father, she has not sent any money to Nepal during her stay in Australia, and she does not know where [Mr A] and/or the child live, (47-50 minutes on the hearing tape).
Later in the hearing the Tribunal raised that it had difficulty accepting that the applicant had a child, but if it moved ahead on the assumption that she did, it had difficulty accepting that she would have any have any difficulties upon return to Nepal either in relation to her child and/or [Mr A]. The tribunal said that this was because the applicant had not taken any steps to pursue contact with the child or seen the child for approximately nine years, she has not seen or had contact with [Mr A] for approximately 10 years, and there are more than 30 million people in Nepal.
In response the applicant submitted that [Mr A] makes telephone contact with her mother every few months and threatens to harm the applicant, including to kill her, if she returns to Nepal. The Tribunal again raised concerns with this evidence again noting that [Mr A] took the child approximately nine years prior, the applicant had been outside Australia for over seven years. The applicant confirmed that this was her evidence, and she said that this occurred because [Mr A] was not a good person, (at 1.30m and 1.34m on the hearing tape).
In response to this the Tribunal asked the applicant if her mother had pursued this issue with the police, to which the applicant answered she had not. Questioned further about what action, if any, her mother had taken to address the ongoing telephone calls by [Mr A], the applicant said her mother does not answer the phone but [Mr A] then rings from a different number. Asked why her mother did not change her telephone number, the applicant said her mother had done this but [Mr A] had been able to get the new number.
During the hearing the Tribunal raised concerns with the genuineness of the applicant’s evidence, noting that the applicant omitted to mention the child during her first five years in Australia, including on her initial Student Visa application, the lack of action by the applicant to locate and/or support the child, the length of time since [Mr A] allegedly took the child, the lack of action by her mother to address the ongoing harassment and the length of time that the applicant has been outside Nepal (while the harassment by [Mr A] continued).
During the hearing the Tribunal also raised concerns with the applicant’s evidence that her father was not supportive of her once she had a baby, when she also had provided evidence that her mother cared for the child when the applicant travelled to Kathmandu. The applicant then said her mother cared for the child, and not the father. The Tribunal then asked the applicant if her mother had any independent income source, to which this she said no. The Tribunal raised that this indicated that the applicant’s mother and father were providing financial support to the child, and this undermined claims regarding her father.
In hearing the applicant gave evidence that she had never been in paid employment in Nepal, but had managed to obtain paid employment almost immediately upon arrival in Australia, and was employed in [a job] in a [workplace]. In addition the applicant gave evidence that she separated from her husband in approximately May 2010, and that she has lived financially and socially independently since.
During the hearing the Tribunal questioned the applicant as to why she did not contact the department, or anyone else, to attempt to regulate the status after her previous Student Visa expired in 2010 or 2011, and before she applied for her current Protection Visa in 2014. The applicant stated that she did not have any idea of how to address the issue, however the Tribunal raised doubts with this highlighting that the applicant had been able to maintain employment and accommodation during this period, and as such it had difficulty accepting that she was as unable to pursue this if it interested her.
In relation to the applicant’s submissions that her family were economically affected by the earthquake in 2014, that [the family business] is not going well, the Tribunal asked applicant how this impacted on her claims for protection. The applicant responded by saying her major threat is from the father of her child ([Mr A]), her second threat is from the family of her husband ([Mr B]), and her third threat is from the earthquake because her family home is cracked. Asked to explain how the latter impacted on her claims, the applicant said the cracked house impacted on her family and she worried about them, but she could not live with them anyway.
At the end of the hearing the Tribunal invited the applicant to make any further submissions in support of her application. The applicant she stated that when she separated from her husband her mental health was not right and she didn’t know what action to take (to remain in Australia) and she is ready to receive any relevant punishment.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The issue in this case is whether the applicant is owed protection by the Australian authorities. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Broadly speaking the applicant claimed to fear returning to Nepal on the basis of having had a child prior to marriage, threats made by the father of her child, the consequences of an inter-cast, inter-religious marriage, and natural disasters that have affected her family. Each of these issues is dealt with below.
One of the applicant’s key claims is that she is at risk from her in-laws, because they did not accept her when she married their son because of her different caste, different religion, and because she had previously given birth to a child outside marriage. During hearing the applicant expanded on this evidence and said that when her in-laws visited [Mr B] she hid and that they did not find out about her marriage to [Mr B] until she travelled to Australia.
However, as raised during the hearing, there is evidence before the Tribunal to strongly support a finding that the applicant’s stay in Australia was financed by her in-laws, being the parents of [Mr B]. This then undermines the claims made by the applicant that her in-laws did not accept her for any reason including her caste, religion, or because she had given birth outside of marriage. The Tribunal finds this evidence reflects poorly on the applicant’s specific claims regarding her in-laws, but also reflects poorly on her overall credibility.
In reaching this conclusion the Tribunal has taken into account the evidence provided by the applicant with relation to this issue, including that [Mr B] completed all of their paperwork to travel to Australia, that he and his parents may have had a plan to bring the applicant to Australia and leave her here, and that [Mr B] told her his parents did not approve but may have lied.
Having considered this evidence the Tribunal finds the suggestion that her ex-husband and his parents may have planned to bring her to Australia and leave her here to be fanciful, and it does not accept this on face value. In relation to the submissions made that her husband completed all of her paperwork, and that he told her his parents did not approve but he may have lied, does not adequately address the issue raised by the Tribunal, which is that her in-laws appear to have financed the applicant’s travel to Australia, and this indicates their support of the applicant and the marriage.
The Tribunal also had other concerns more broadly with the applicant’s evidence in relation to her marriage to [Mr B]. For example, the applicant gave contradictory evidence during the hearing in relation to when her own family knew about her marriage to [Mr B]. That is, the applicant initially said her family found out about the marriage two to three months after the event, but she later amended her evidence to say she left her [relative]’s house and lived with [Mr B] immediately after the marriage and, as a result, her family came to know straight away. This evidence is inherently contradictory, because if the applicant were living with her then spouse it would have been apparent to her family including her [relative] (whom she apparently lived with at that time).
A further example of her contradictory evidence in relation to her marriage is that during the hearing the applicant said that she came to know [Mr B] when he visited her house (meaning her [relative]’s house), however, when the Tribunal pursued this issue, the applicant changed her evidence and said he did not visit her house, but that they saw each other in the general neighbourhood. Although this may seem somewhat insignificant, it shows a pattern of inconsistent evidence provided by the applicant.
Having considered the evidence overall, including the evidence that her in-laws financially supported her Student Visa to Australia, and the contradictory evidence given about her marriage in general, the Tribunal does not accept the applicant’s submission that her in-laws did not approve of the marriage due to her caste, religion, birth of the child outside marriage, or any other reason.
As a result the tribunal is not satisfied that the applicant would face a real chance of serious harm or significant harm from [Mr B], his parents or extended family for any reason upon return to Nepal.
In relation to the applicant’s claims to fear due to her having given birth to a child outside of marriage, the Tribunal has doubts as to whether or not the applicant has a child as claimed. The reasons for these doubts include the applicant’s omission to list the child on the original Student Visa application, and her failure to take any steps to establish a relationship, pursue or support the child during the more than seven years she has spent in Australia.
In relation to her omission to list her son on the original Student Visa application, the Tribunal has taken into account the applicant’s evidence but notes it is somewhat conflicting. That is, the applicant initially said that she did not list the child because [Mr B] did all the paperwork, however she also said that she did not know that the child was not listed on the original Student Visa until she applied for her Protection Visa. Having taking this into account, the Tribunal still finds the applicant’s failure to list the child on any documents until she applied for protection in Australia indicates that she may not have a child and that she may be claiming such in order to strengthen her claim for protection.
However, in this instance the Tribunal has given the applicant the benefit of the doubt, and has assessed her application on the basis that she does have a child who remains in Nepal and resides with his father. In considering this the tribunal notes that the applicant’s own evidence was that she has not had any contact with the child’s father, [Mr A], since approximately one month after the child’s birth, being almost 10 years ago. In addition, the applicant has not taken any steps to locate, contact or financially support the child since he was taken by his father approximately nine years ago, and she does not know his father’s full name or address.
The lack of action, and lack of information held by the applicant, leads the Tribunal to conclude that the applicant would not be at risk of harm due to any attempts to see the child upon return to Nepal. This is because the applicant has failed to take any steps to locate or support her son in approximately nine years, and appears to have limited avenues to pursue upon return. Therefore the Tribunal is not satisfied that the applicant would be at risk of returning to Nepal and attempting to pursue contact with her son.
In addition, in considering whether the applicant would be at risk from her own family, her extended family, and/or the society in general, due to having given birth outside of marriage, the Tribunal is not satisfied that these claims have been established. In making this decision the Tribunal notes that the applicant has lived financially and socially independently in Australia for the last seven years, she has acquired skills in the workforce in Australia, and she has been able to call upon family resources in Nepal in the past, including working [in the family business] and living with her [relative]. This indicates there the applicant would be able to return to Nepal and live with her parents, with her [relative] or independently upon return.
In making this finding the Tribunal has taken into account the applicant’s evidence that her father does not approve of her actions in having a child outside marriage, due to social pressure and because the father of her child is a Maoist; that her [relative] would no longer support her or live with her due to her marriage, and that people in her community know that she has had a child and would exclude her and punish her upon return.
However, The Tribunal has also taken into account the applicant’s evidence that she left the baby with her mother, and that her mother does not have an independent income source, which suggests that the baby was financially supported by her father when the applicant initially travelled to Kathmandu. That is, it indicates that her mother was willing to care for the child and that her parents were working together in order to support the child. This undermines claims by the applicant that her father does not accept or support her due to the birth of her baby.
The Tribunal has also taken into account the applicant’s evidence that caring for the child and/or her may lead to her parents fighting, and that the applicant planned to leave the child with her mother temporarily before returning to take the child to Kathmandu. However, having considered the evidence overall, the Tribunal does not accept that the applicant evidence regarding treatment by her own family on face value.
The Tribunal also considered the applicant’s evidence that she could not return to live with her [relative] in Kathmandu, because her [relative] was angry with her for marrying [Mr B] without the [relative]’s prior knowledge, and because she had an inter-religion marriage. However, in considering this evidence the tribunal notes that the applicant gave inconsistent and contradictory evidence regarding her [relative] and her marriage. That is, the applicant’s evidence was inconsistent and contradictory in relation to how she met her spouse (and whether or not it was at the [relative]’s house or not), and when and how the [relative] became aware of the marriage.
In reaching these findings the tribunal has also had regard for the applicant’s general lack of credibility, displayed by major contradictions in other parts of the applicant’s evidence. This includes when she submitted that her in-laws did not support her marriage due to it being inter-caste, inter-religion, and her giving birth to a child prior to marriage, whereas evidence on her original Student Visa application records that her in-laws financially supported the joint application.
In making this finding the Tribunal has considered country of origin information regarding the poor treatment of unmarried women and divorcees (DFAT 2016), but notes that the applicant’s does not have care or control of the child and she does not live with the child and it is unlikely that the applicant would live with the child in the future, (so caring for the child would not limit her employment options). In addition, the applicant has been financially and socially independent for several years.
Therefore having considered the evidence overall the Tribunal does not accept that the applicant is at risk of harm from her own father, her family, her extended family or the society in general due to her having given birth outside of marriage.
On a related issue, the Tribunal does not accept that the father of her child, [Mr A], is a risk to the applicant in any capacity. This is partly because the tribunal does not accept that [Mr A] continues to contact the applicant’s mother every one to two months and make threats against the applicant. This finding is based on the length of time since [Mr A] was alleged to have taken the child, the length of time that the applicant has been outside Nepal, and the lack of action taken by the applicant’s mother to avoid the apparent harassment.
In relation to the latter, the applicant gave evidence that her mother has not approached the police in relation to the alleged ongoing harassment, despite the harassment continuing for approximately 9 years. This indicates that either the harassment is not occurring, and/or the mother does not feel threatened by it. In making this decision the tribunal has considered the applicant’s evidence that her mother changed her telephone number and avoided answering the telephone, but notes of these submissions were made only after prompting by the Tribunal. Overall the Tribunal does not find this evidence to be credible.
Overall, the Tribunal finds even if it accepts that the applicant does have a child it does not accept that she faces a real risk of serious harm or persecution at the hands of [Mr A] and/or those related to [Mr A] due to her having had a child out of wedlock, her having married another man after the child was born, or any other reasons.
The Tribunal also considered claims made by the applicant that her father is angry with her because he is pro-monarchy and the father of her child, [Mr A], is a Maoist. However, the applicant has failed to provide any further evidence in support of this, including when invited to add anything further to her submissions at the end of the hearing. Therefore, on the evidence before it, the Tribunal is not satisfied the claim made by the applicant has been established by the applicant.
The Tribunal has also considered the applicant’s submissions that her family were economically affected by the earthquake in 2014, that [the family business] is not going well. In written submissions the applicant also stated that her family did not want to support her or have her in the house. During the hearing the applicant gave evidence that she has concerns about her family’s welfare because they live in a house that was cracked in the earthquake.
In considering these submissions the Tribunal has taken into account the applicant’s evidence that she has regular phone contact with her mother, that her parents appear to be residing in the same property, and that the applicant has not provided any financial support to anyone in Nepal since entering Australia seven years ago. The Tribunal has also taken into account the credibility concerns raised in relation to the applicant, including in relation to the extensive evidence she provided regarding her relationship with [Mr B] and his family. Having considered the evidence overall the Tribunal is not satisfied that the applicant faces a real chance of serious harm or significant harm due to the economic or other impacts of the earthquake in 2014, [or] issues associated with the [family business].
The Tribunal has also taken into account the applicant’s evidence that she would be unable to support herself in Nepal. In considering this the Tribunal has taken into account the applicant’s evidence that she was unable to obtain paid employment before she left Nepal, but that she did work [in the family business]. The Tribunal has also taken into account the applicant’s evidence that she obtained paid employment in Australia soon after arriving, and that she has been financially independent during her more than seven years in Australia, that the applicant has lived in a foreign country with limited English skills, and, that she has lived independently of her family in Australia for more than seven years.
Having considered the evidence overall, the Tribunal is not satisfied that the applicant faces a real chance of serious harm or significant harm upon return to Nepal due to her inability to support herself, and instead finds that the applicant would be able to engage in employment within her family [business], or possibly more broadly within the labour market, relying on skills she obtained working [in the family business] in Nepal and/or in paid employment in Australia.
In assessing overall credibility the Tribunal has also taken into account the delay between when the applicant’s previous Student Visa ceased [in] April 2010 (as recorded on the passport provided to the Tribunal by the applicant) and the date of application for her protection Visa being [in] August 2014. In doing so the Tribunal considered Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105 at [11], which held that the Tribunal’s regard to the applicant’s delay in applying for a protection visa is a relevant consideration in assessing the genuineness of an applicant’s claims, and BAX15 v MIBP [2016] FCA 491 at [37]-[43], which held that the Tribunal did not err in having regard to the delay, as it was not an irrelevant consideration. The Court’s discussion here observes that the Tribunal should not treat the existence of the delay ‘as the end of its enquiry’ and should consider the genuineness of any explanation put forward by the applicant (citing Thuraisamy v MIMA [1999] FCA 1632).
In the current matter the Tribunal finds this delay impacts on its assessment of the applicant’s genuineness. In making this finding the Tribunal has taken into account the evidence provided by the applicant, including that she was unaware of services available and/or steps she could take to regularise her status, that she only found out about Protection Pleases after being told by a friend, and that her mental health was a factor preventing her from pursuing such.
The Tribunal has also taken into account the applicant’s evidence regarding what she was told by her ex-husband in relation to a Visa, but it notes that the applicant’s evidence in this regard was somewhat contradictory. That is, the applicant initially said she was told by her ex-husband that the Visa had been granted, but later she gave evidence that she was unsure of the visa status.
However, the Tribunal has also taken into account the applicant’s evidence that she continued working after this time, and was financially independent, that she was able to obtain and maintain accommodation. This is contrasted to the applicant’s lack of action regarding pursuing her Visa in Australia, and impacts negatively on the applicant’s evidence that she was unaware or unable to take action for a period of approximately four years to regularise her Visa status.
Having considered the evidence overall the Tribunal is not satisfied that the applicant was unaware that she was an unlawful non-resident at any period, and instead finds that the delay in application reflects poorly on her.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
Having considered the evidence overall the Tribunal does not accept any of the claims made by the applicant, including that she will face harm from her immediate family, her extended family, her former in-laws, and society in general due to being a single, unmarried, divorced, mother, inter-caste or inter-religious marriage, or any other reason. The reasons for this are set out above. As a result the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION

The Tribunal affirms the decision not to grant the applicant a Protection visa.
Gina Towney
Member

[2017] AATA 359

16 February 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction