1510707 (Refugee)

[2017] AATA 542

1510707 (Refugee) [2017] AATA 542 (20 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510707

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Mila Foster

DATE:20 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 20 March 2017 at 4:54pm

CATCHWORDS
Refugee – Protection visa – Nepal – Particular social group – Single women – Divorced women – Retaliation from former husband – Stigma from family and society – Credibility issues

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 499
Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Nepal, applied for the visa [in] August 2014 and the delegate refused to grant the visa [in] July 2015.

3. The applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

   RELEVANT LAW

5. 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

6. 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).

7. 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.

8. 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.

9. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

   … First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.  Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …

10. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.

    Complementary protection criterion

11. 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’).

12. ‘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.

13. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

    Section 499 Ministerial Direction

14. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT issued such a report in relation to Nepal on 21 April 2016.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The applicant’s claims and evidence

15. The applicant presented her claims and evidence in her protection visa application (which included a statutory declaration she made), during an interview with the delegate[1] and during her testimony at the Tribunal hearing.

    [1] I have listened to a recording of that interview and the delegate’s decision record also contained a summary of the interview.

16. Supporting documents submitted to the Department and Tribunal included:

    a.A letter dated [in] April 2015 from [a] Bharatpur [office] stating, amongst other things, that the applicant married [Mr A] on [a date in] May 2005, they divorced on [a date in] December 2008, she was subjected to physical and mental torture by [Mr A], and [Mr A] had several criminal convictions and was involved in drugs.

    b.A divorce order made by the Federal Circuit Court of Australia terminating the marriage between the applicant and [Mr B].

    c.Documents relating to the applicant’s secondary education in Nepal and studies in Australia.

    d.Money transfer documents.

    e.Two written submissions made by her migration agent to the Department (dated 11 August 2014 and 15 April 2015) and a written submission made to the Tribunal prior to the hearing (dated 28 September 2016).

17. According to the applicant’s protection visa application and information in the delegate’s decision record,[2] the applicant is [an age] year old woman from Nepal who has been married and divorced twice. She married her second husband in Nepal on [a date in] April 2008 before her divorce from her first husband, [variation of Mr A’s name]. She and her second husband divorced in Australia on [a date in] May 2014. Her first marriage was arranged but the second was not. She arrived in Australia in January 2009 on a student visa as the dependent of her second husband.  She was subsequently granted a student visa in her own right and studied in Australia from 2011 until July 2014. She has also worked for various periods of time in Australia and returned to Nepal for one month in December 2011.

    [2] A copy of which the applicant provided to the Tribunal.

18. In summary, the applicant claims that she fears returning to Nepal because she will be killed by her first husband for reasons which include that she left him and married someone else. She also claims she will be rejected by Nepali society and will not be able to resettle in Nepal because she has been divorced twice and is poor. Her migration agent expanded upon her claims in his written submissions. He submitted that the applicant would be prosecuted for polygamy. Further, observing that the applicant’s parents and former in-laws followed Hinduism and Nepal was a predominately a Hindu nation, he submitted that the applicant would face persecution, harassment, discrimination, stigma, rejection and ostracism by the Hindu society, her family, and her former in-laws due to her membership of various particular social groups including women, divorced women, single woman, separated women, and women discarded by their husbands.

19. In addition to the evidence presented by the applicant and her migration agent I have consulted other sources about the situation in Nepal for women including divorced women. I also accessed the applicant’s [social media] page before the hearing to obtain any evidence of her previous marriages and her family in Nepal but it was not of any assistance.[3]

    [3] At the hearing the applicant told me that [social media contacts] who had surnames which were the same as or similar to her first husband’s surname were not related to him, and the people pictured with her in her profile photograph were her [relatives] (who reside in Australia).

    The issues

20. The issues in this case are the credibility of the applicant and whether, based on the claims I accept, she meets the refugee criterion or the complementary protection criterion. For the following reasons, I have concluded that the decision under review should be affirmed.

    The applicant’s credibility

21. I found the applicant a most unsatisfactory witness. On numerous occasions she gave long-winded replies which appeared rehearsed and did not directly respond to what I had asked. The applicant presented as an intelligent and confident person. It did not appear that she was unable to understand my questions. Instead I was left with the impression that she was being intentionally evasive on those occasions. Other times the applicant contradicted claims and evidence she had provided in her protection visa application and during her interview with the delegate, embellished her claims and changed her testimony during the hearing particularly when I put concerns to her about her evidence and claims. I elaborate below.

22. The applicant claimed in her statutory declaration that it was only after she married her first husband that she became aware that he was a drug addict and involved in criminal activities. She said he had a criminal record and had been in and out of custody often. Yet when I sought to obtain further details about these claims at the hearing the applicant was unforthcoming and vague. She did not respond directly when I asked what drugs her first husband used. Instead she told me that his behaviour was good in the beginning but changed later. She said he went to India to get drugs and once, when she found drugs under his bed and asked him about the drugs, he hit her in the face. When I asked her again to tell me what drugs he used, if she knew, she said she did not know but then proceeded to tell me that she took the tablets he used to a pharmacist who told her that they were used by drug addicts who could not find drugs, and that after she returned home she found the tablets everywhere. She said she asked her first husband why he took drugs; he then threatened to beat her and cut her if she told anyone, dragged her down a ladder to the ground level and put her hand in a gate. It did not appear to me that the applicant did not understand what was a very simple question about what drugs her first husband took. If she did not know what drugs he took but had had taken some of his tablets to a pharmacist who informed her that they were taken by drug users then I expect she would have said so when first asked what drugs her husband took. Instead it seemed to me that she had this invented this at the hearing. Further, her testimony about the harm her first husband subjected to after she confronted him about his drug taking seemed rehearsed.

23. Similarly, when I asked what criminal activities her first husband had been involved in, having just asked the applicant to respond directly to my questions, she did not do so. Instead she told me that he asked for money and when she said she did not have any, he took some of her gold jewellery to a shop. Asked to respond directly to my question she then stated that he imported drugs and sold it to his friends. If that were true then I expect she could have given that simple response when first asked instead it seemed she was being deliberately evasive.

24. The applicant told the delegate that she left her first husband about three or four months after they married. However, she testified that she left him after about one year and three or four months of marriage. Asked to explain this apparent discrepancy, the applicant told me that she found out he was a drug addict after about three or four months and at that point decided not to stay with him. I do not consider that a satisfactory explanation. When the applicant decided to leave her first husband and when she actually left him are two separate matters. Further, the applicant was vague when asked where she lived with her first husband, responding merely with the name of the city, Bharatpur. Asked for the precise address she was most hesitant and stated that she did not know the number but it was [near a landmark] near village number [number]. Later in the hearing when I noted the residential addresses she had provided in her protection visa application, she stated that [this Village number] in Chitwan was her first husband’s address. I expect that the applicant would have been able to provide that address at the hearing given her claims relate to her first marriage, she testified his house was close to her parents’ home and she was able to provide the address in her protection visa application.

25. The applicant testified at the beginning of the hearing that she only feared harm from one specific individual if she returned to Nepal: her first husband. She said he would definitely kill her as he had told members of her family he would kill her if she returned to Nepal and he had beaten her ever day during their marriage.  Asked whether she had any problems in Nepal with her first husband after she left him, the applicant gave a long reply. She stated that he came to her place and roamed around, told her neighbour not to marry her, made her feel embarrassed, said she was a prostitute, and that her parents also suffered many problems as a result. She continued that whenever he saw her on the street he said, ‘let’s go home’, and said that if he found her alone he would kill her and hide her body in a place no one would find. She said her second husband knew everything and so they ran away to get married and start the process to come to Australia. When I questioned why she believed her first husband would kill given that in the past he had known where she lived, had the opportunity to harm her but had not physically harmed or killed her, the applicant initially replied that no one knew she had applied to leave Nepal, was planning to run away and ‘did this’. When I asked again why her first husband had not physically harmed her in the two year period between when she left him and she came to Australia, she replied that he came to her place and threatened to kill her if she married anyone else before adding, in what seemed an afterthought, that once he came to her parents’ house when her parents were not there and beat her. This seemed to be a new claim the applicant had invented as she had not previously indicated that her first husband had physically harmed her after she left him. When I noted this, the applicant replied that she may not have understood what I had asked before saying that her first husband would come to her place, roam around and beat her if no one was present. This seemed a further embellishment which suggested that the applicant’s first husband beat her on more than one occasion after she had left him. It appeared to me that the applicant was inventing evidence as she testified to bolster her claims. 

26. At the beginning of the hearing the applicant testified that her parents lived in [Town 1] in the district of [District 1], that she returned to live with them after she left her first husband and continued to live with them even after she married her second husband (in April 2008). She specified that she continued to live with her parents until she came to Australia (in January 2009) even after she and her second husband got their visas to Australia because her first husband would have killed her if he found out she had married, and she and her second husband would have gone to gaol if others found out that she had not divorced her first husband before she marrying her second husband. This however is not consistent with the residential addresses she gave in her protection visa application in which she stated that she lived at [Village number] in Chitwan from May 2005 until July 2006, at [Address 1] in [Town 1] [District 1] from July 2006 until April 2008, and at [Address 1] in [Town 2] [District 1] from April 2008 until January 2009. When I put this to the applicant, she stated that [Address 1] in [Town 2] was her second husband’s address and all the documents presented to come to Australia were from his place. She then directly contradicted her earlier testimony and stated that she lived at that address with her second husband for a short time after their visas came. When I noted her previous testimony was that she had never lived with her second husband in Nepal, the applicant failed to explain the chance in her testimony and instead stated that his parents knew, [Address 1] in [Town 2] was her second husband’s address and [Address 1] in [Town 1] was her parents’ address. None of that explains the change in her testimony.

27. In response to being asked why she had not provided documentation of her first marriage and divorce such as marriage and divorce certificates but had provided the Bharatpur [office] letter, the applicant said that she had been trying to get the marriage and divorce certificates for her first marriage but there was no one to help her, she did not get any support and there was no proper system. Yet when I questioned how then she obtained the letter, she contradicted the testimony she had just given that she had no one to help her and had not received any support, and replied that her lawyer in Nepal helped her obtain the letter from [because] he knew [someone]. Further, she said that a group that assisted people who suffer, helped her get the letter and tried to help her get other documents but had not been able to do so.

1. The applicant’s evidence about her separation from her second husband was very evasive and contradictory. In response to being asked to estimate when they stopped living together in Australia, the applicant began detailing where they lived together in [a suburb] and his attendance at college. Asked to respond directly to my question, she replied that they only stayed together one or two months. When I observed that that was not a long time, she contradicted what she had just said without explanation and stated that they stayed together for three to four months then she went to work on a farm for one to two months, and he began having relationships with different girls while she was working on the farm. In response to this, I noted that during her interview with the delegate she indicated that her second husband started coming back late from college at times and sometimes did not come home at all for one or two days, and then someone told her that he was roaming around with another person, and it was during that time that had a friend in [a regional town] suggested that she go to work there. I put to the applicant that this suggested that her second husband began seeing someone else before she went to work on the farm.  The applicant replied that his behaviour was like that but he assured her he was not doing that. That explanation was unclear and did not satisfactorily explain the apparent variation in her evidence about when her second husband began having relationships with other women.

2. The applicant’s testimony about when she decided to divorce her second husband was evasive, confused and contradictory. The applicant testified that she decided to divorce her second husband after she found out that he had had a child because it was then that she realised he would not return to her. However, when I sought to determine when that was, her initial response was that she came to know his wife was pregnant from friends. The reference to the second husband’s wife being pregnant suggested that the applicant and her second husband were divorced before the child was born (unless by wife she meant de facto partner). When I questioned the applicant to clarify this, she then testified that even though she knew he was married she hoped he might return but when he had a baby she knew he would not be back. This indicates the child was born after the divorce and her second husband had remarried, and thus the birth of the child could not have been the catalyst for the applicant to seek a divorce as she initially testified. When I put this to her, she responded that she thought he was living with his girlfriend and at that time he had a baby which contradicted the testimony she had just given without explanation. Asked when it was that she found out about the baby, she replied vaguely and hesitantly that it was ‘from 2014 onwards’.

3. Another aspect of the applicant’s evidence about her divorce from her second husband was unsatisfactory. She testified that she filed for divorce from her second husband. When I noted that in her statutory declaration she stated that her second husband discarded her and he divorced her, she stated that one or two times when she met her second husband he mentioned getting a divorce but it was she who initiated the divorce.  That however does not explain why she stated in her statutory declaration that he divorced her. Further, I noted from the divorce order that their divorce came into effect in May 2014 which suggested that the divorce application was made in 2013 if they had been separated for 12 months. She responded that she could not recall the precise date and she may have filed for divorce in mid-2013. That however would be inconsistent with the testimony she had given that she decided that the relationship was over sometime from 2014 onwards.

4. Finally, the applicant testified at the hearing that she had not been employed in Nepal and stated in her protection visa application that she was a housewife there. However, her passport states that her profession is farming. Asked why that was given as her profession in her passport, she replied initially that she had no profession when she applied for the passport but there was some land around her house so she put farming. That however does not explain why she stated her occupation was farming if that was not true. Asked why she did not state she was a housewife as indicated in her protection visa application, her response was contradictory. She said it was suggested to her that she put farming but then she said that no one told her anything. Although the question of her occupation is not directly related to her protection claims and thus I have not placed significant weight on the inconsistency, combined with the other flaws in her evidence it supports my conclusion about her credibility.

5. Taking the above matters into account collectively, I find that the applicant was not a credible witness and thus do not accept all the claims she has made.

   Findings

   Nationality

6. Based on the applicant’s Nepalese passport, which I sighted at the hearing, I accept that she is a national of Nepal as she claims.

   Marriages, divorces and harm from first husband

7. Given the applicant’s general lack of credibility and the flaws in her evidence outlined above about her alleged first husband, I do not accept that she was married to [variation of Mr A’s name] or [Mr A][4] or another other person prior to marrying [Mr B]. In making that finding I have had regard to the Bharatpur [office] letter. However, I have given that letter no weight due to the applicant’s lack of credibility and the evidence from DFAT, which I put to the applicant at the hearing, that fraudulent official documents can be obtained In Nepal.[5]

   [4] At the hearing I asked the applicant about [contacts on her social media] page with the same or similar surname. She told me they were unrelated to her first husband.

   [5] DFAT Report at [5.30].

8. On its face the divorce certificate issued by the Federal Circuit Court of Australia appears genuine. It states that the applicant’s marriage to [Mr B] on [a date in] April 2008 was proved. On the basis of that certificate I accept that the applicant married [Mr B] on that date and that they divorced on [a date in] May 2014.

9. In light of the preceding findings, I find that the applicant has only been married and divorced once, and has not committed polygamy. I therefore find that the applicant did not have a first husband and a second husband but has only had one husband, [Mr B]. I therefore also find that neither the applicant nor any member of her family has been harmed in the past by [variation of Mr A’s name] or [Mr A] or any ‘first husband’. I thus find that the applicant will not be harmed in the future by [variation of Mr A’s name], [Mr A] or any ‘first husband’ nor will she be prosecuted for polygamy in Nepal.

   Harm from others and Nepalese society

10. At the hearing I clarified with the applicant who she feared would harm her if she returned to Nepal. She made it very clear that there was only one specific individual she feared would harm her if she returned to Nepal - her first husband. Questioned about the harm she feared from society, she said she had heard from her [relative] that society hated her parents because she had been divorced twice and so she thought she would be hated as well. She also mentioned during the course of the hearing that her parents were not happy with her (because she had divorced twice and they have spent so much money on her first marriage and studies in Australia) and they were no longer on speaking terms but she did not claim to fear them or harm from her former in-laws.

11. I put to the applicant at the hearing that information in sources I had consulted[6] indicated that women and particularly single and divorced women can face harm including discrimination and stigma in Nepal but that a new constitution prohibits discrimination based on gender, the number of working women earning an income has increased, more women are heading households, divorce is increasing and most divorces are filed by women. I also put to the applicant that her particular circumstances were such that it seemed she would be able to settle back into life in Nepal without facing a real chance of serious harm or significant harm for reasons of or related to her gender and/or martial status. In this regard I noted that the applicant testified that she belonged to the Brahmin caste, a higher caste within the Hindu caste system which experienced a low incident of poverty in Nepal,[7] she had acquired English language skills in Australia and had been educated in Nepal and Australia,[8] and her ability to make a life in Australia for several years indicated she could adapt and survive. The applicant disagreed. She said she belonged to a lower, poorer grouping of Brahmins, and her situation was worse because she had been divorced twice. Asked what she would face is she had only been divorced once, the applicant replied that a woman who had divorced once may suffer but divorcing twice was worse. She added that a Year 12 education in Nepal was normal, that her education was low in Nepal and she would not get a job.

    [6] DFAT Report at [3.41]- [3.53], Nepal Times, ‘Not so happily ever after’, 11-17 July 2014, Amnesty International's Report 2015/2016 – Nepal, Freedom House, Freedom in the World 2016 – Nepal, see especially ‘G. Personal Autonomy and Individual Rights:7/16’, United States Department of State, Country Reports on Human Rights Practices 2015 – Nepal, pp.25-31;

    [7] DFAT Report at [3.31].

    [8] According to the certificates she submitted at the hearing.

12. Due to the applicant’s lack of credibility and for the following additional reasons I do not accept that the socio-economic status of the applicant and her family in Nepal is as low or poor as she sought to portray at the hearing. I believe she understated their socio-economic status to bolster her claims. Nor do I accept that her family in Nepal have rejected her.

13. At the hearing the applicant claimed that her family in Nepal were very poor. She said her mother had never been employed and her father was retired but had worked as [an occupation] in a [workplace] where his job [involved various duties]. When I observed that she had told the delegate that her family was middle class, she stated that there was not much difference between the middle class and the lower class, and that the rich were rich and the poor were poor. I questioned why her father, a Brahmin, would work in a lowly job. She replied that her father was illiterate and not educated. I noted that the applicant had an education in Nepal. She testified that her parents wanted her to be literate and worked hard to put her in school. She said she and [one sibling] completed [level] while [other siblings] did not have much of an education, only up to [a lower level]. I observed that the money transfer documents she had submitted to the Tribunal showed that her father had sent her $AUD [amount] in December 2012 and $AUD [amount] in September 2013. I queried how he could give her almost $[total amount] if he was poor. She said her father obtained a loan by mortgaging his house and mentioned that her [sibling], who she had earlier testified was working in [another country], also supported her. I questioned how her father obtained a loan if he was not working (having retired). Her response did not address my question and she simply restated that her father obtained a loan by mortgaging the house before giving a long-winded account of her family’s suffering and how her parents do not speak to her. She referred to not having an education even though she clearly did have one and a lack of support. It seemed to me this response was an attempt to avoid explaining how her father obtained such a loan if he was as poor as she claimed and/or no longer working. 

14. The variation in the applicant’s evidence about her family being middle class and being very poor, and the fact her family belongs to a higher caste, her father was able to raise thousands of dollars and she was able to complete Year 12, as well as her general lack of credibility leads me to conclude that the applicant’s family is not poor but in a good socio-economic position. Further, I note that the applicant has had more education than her [members] of her family ([specified]) have financially supported her studies in Australia, and she has not claimed that her father [or] any other member of her family has subjected her to violence, serious harm or significant harm in the past for reasons of or relating to gender, marital status and/or religion, or threatened to subject her to such harm in the future. I thus do not accept that the applicant’s family have or will reject her if the returns to Nepal let alone subject her to serious harm or significant harm because she is a woman, single, divorced, discarded women and/or any other reason arising from or related to gender and/or marital status. That includes harm for those reasons which arise from their Hindu beliefs. I find that they will support her as they have in the past and assist her to resettle upon her return to Nepal. Further, given the education the applicant has acquired in Nepal and Australia, her ability to adapt and live in Australia, and the support of her family, I find that she will be able to find employment and accommodation in Nepal, and resettle there.

15. I accept, given the independent evidence before me, that the applicant may face some harm such as stigma and discrimination from Nepalese society and her former in-laws for reasons of or related to gender, marital status and/or religion. However, in light of the applicant’s education, family support, caste and socio-economic status I find that there is not a real chance that the harm, individually or cumulatively, which the applicant will face rises to the level of serious harm or significant harm as defined in s.36(2A).

    Refugee criterion

16. Given the findings I have made above that the applicant has only been married and divorced once, and will not be harmed by her family as well as my findings about her particular circumstances and the risk of serious harm she faces from Nepalese society and her former in-laws, I have concluded that there is not a real chance that she will face serious harm in the reasonably foreseeable future in Nepal for reasons of her membership of a particular social group, religion and/or any of the other Convention reason when considered individually and cumulatively. I therefore find that the applicant does not have a well-founded fear of persecution for a Convention reason in Nepal.

17. I am thus not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. She therefore does not satisfy the criterion set out in s.36(2)(a).

    Complementary protection criterion

18. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

19. In light of my findings that the applicant has only been married and divorced once and will not be harmed by her family, and given the findings I have made about her particular circumstances and the risk of significant harm she faces from Nepalese society and her former in-laws, I have concluded that there are not 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 she will suffer significant harm for the reasons claimed, individually or cumulatively. I am thus not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other criteria

20. 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

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

    Mila Foster
    Member