1512986 (Refugee)

[2017] AATA 869

1512986 (Refugee) [2017] AATA 869 (4 May 2017)

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CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512986

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Michelle Grau

DATE OF DECISION:  4 May 2017

DATE CORRIGENDUM

SIGNED:5 June 2017

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

Replace references to ‘Malaysia’ in paragraphs 48 and 51 with ‘Nepal’ and references to the applicant as a ‘he’ in paragraphs 48 and 51 with ‘she’.

Michelle Grau
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512986

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Michelle Grau

DATE:4 May 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 04 May 2017 at 3:10pm

CATCHWORDS
Refugee – Protection visa – Nepal – Inter-caste Marriage – Social group – Separated woman – Kidnapping attempt – Threats from in-laws – Credibility issues

LEGISLATION
Migration Act 1958, ss 36, 65, 424AA, 499
Migration Regulations 1994

CASES

BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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] June 2014 and the delegate refused to grant the visa [in] September 2015.

3. The applicant appeared before the tribunal on 19 April 2017 to give evidence and present arguments. The tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in this case is whether the applicant meets the criteria for a protection visa either on the basis that:

   a.the applicant has a well-founded fear of persecution for a Convention reason (s36(2)a);or

   b.because there are 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’).

5. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

   Claims

6. The applicant is a [age] year old female from Nepal.

7. According to her application, she had a love marriage with her husband, which was without permission and interest from her husband’s parents as they were from an upper caste. In Nepal the racism and untouchability is a serious social evil. Because of untouchability and racism, after marriage her husband’s parents did not allow her to enter and stay in their house, so they lived in a rented house in Kathmandu. The husband’s parents tried to send their son to Australia without her to separate them. The applicant was compelled to follow him to Australia.

8. According to her application, the applicant’s husband’s relatives hired people to kidnap the applicant from her room. The applicant was not at home at the time. They broke cupboards, kitchen wares, the door and window. They left a threatening note on the applicant’s table stating that if she did not leave the husband as soon as possible, they would kill her.

9. According to her application, when the applicant came to Australia, she could not find a job in [City 1]. The applicant did [work] to earn money for the husband’s fees, while the husband drank beer, was with girls and gambling. As a result, they quarrelled and he bullied and beat her for nothing. He threatened to kill her if she talked or opposed him. [In] February 2012, the husband went back to Nepal and threatened the applicant that he would kill her if she returned to Nepal, so she is afraid to return to Nepal.

10. The applicant fears the husband will kill her torture her physically and mentally. The applicant’s husband went back to Nepal at his parent’s plotting. They want to get rid of the applicant at any cost. The husband’s parents have threatened the applicant’s parents.

11. The authorities, including the police, are corrupt. The last time the applicant was in Nepal, she complained about her failed kidnapping but they took no action. Instead, they asked for a bribe. The applicant has suffered a lot in Nepal and cannot continue to anymore.

    Hearing

12. At hearing, the applicant confirmed her parents lived in Nepal in a home owned by her [relative]. Her parents were [occupation], and her mother is [working]. Her father was not working as he was ill. The applicant finished high school at age [age] or [age] years. She worked as a [occupation] in Nepal. She married in 2003 and lived with the husband until their departure in January 2009. The husband’s parents did not accept her and she has had no contact with them since 3 or 4 days after the marriage.

13. Since then, the applicant has lived and worked in Australia [in occupation]. She last worked full time in 2014 and had some intermittent work in 2015. She earned about [amount] a month. She is currently staying with a friend who supports her.

14. The applicant’s husband returned to Nepal in February 2012 as the applicant had stopped sending him money because he had been drinking was with other women and they quarrelled. She last had contact with the husband in December 2011. She last had contact with her parents in January 2017 for New Year’s.

15. The applicant added that her parents were threatened by the applicant’s ex-husband in January. He told them that when the applicant comes to the airport he will ‘finish’ her unless he gave her [amount] rupees.

16. The tribunal discussed the applicant’s claims, its concerns about her credibility and changing evidence throughout the hearing. The tribunal also put information to the applicant pursuant to s424AA procedure in relation to the student visa application file, which noted the applicant and the husband were both granted student visas at the same time on the basis of financial support and documents from the husband’s parents and brothers. These documents included certificates of land ownership, bank documents, character references and a relationship statement which included the applicant in husband’s family composition living at the husband’s address in [another town], not Kathmandu. The tribunal also discussed its concerns about the genuineness of the marriage certificate provided in the student visa file.

17. Pursuant to s424AA procedure, the tribunal also noted the applicant’s inconsistent evidence and failure to mention a number of her claims and the addition of new claims throughout the application process. This included her claims at her department interview that she was beaten often in Nepal and Australia, that the husband came looking for her, the police tore up the kidnap note and blamed her, that she returned to live with her parents for [number] months. Further, the tribunal noted the applicant’s failure to mention any concerns or fear of harm from her husband or his family in [a temporary] visa application, in the Migration and Refugee tribunal (MRT) review of the [temporary] visa refusal or the 2013 request for ministerial intervention. The tribunal noted the applicant had provided false and misleading documents in the [temporary] visa application. In the ministerial intervention request, the applicant claimed she did not want to return to Nepal because it would cause hardship and disappointment to her parents because she not acquired Australian qualifications.

18. In response, the applicant confirmed she and the husband came to Australia, but he came one month before her. The husband’s parents helped him with the student visa but he did it all and maybe his parents could have tried to separate them. Regarding concerns of her credibility, the applicant said it was the same thing just a different perspective.  Regarding her [temporary] visa application, the applicant responded that she was surrounded by trouble and did not know and made a mistake, which she has realised.  The marriage certificate was not a fake. It may not have the certificate number on it but that was the fault of officials, not her. The applicant stated that she could not return to Nepal as she would rather die.

    FINDINGS AND REASONS

19. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

20. The tribunal also notes that the recent decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

    As his Honour correctly found, the tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

21. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

22. The tribunal was mindful to ensure the applicant understood the proceedings throughout the hearing. The applicant confirmed a number of times in the hearing that she understood the interpreter and the questions and issues when put to her.  The tribunal is satisfied the interpreting was competent and reasonable and the applicant had a meaningful opportunity to present her case.

    Credibility

23. The tribunal discussed its credibility concerns with the applicant throughout the hearing in a number of respects. In summary, the applicant’s evidence at hearing was inconsistent, lacked detail and credibility, and was told in a piecemeal fashion. The applicant also added new claims which were not mentioned previously. When the tribunal raised concerns about the credibility of her claims, the applicant added to the account or said she was not asked about it before or said she may have misheard. However, the tribunal repeated the claims and questions a number of times and clarified and confirmed the applicant’s responses. For the reasons below, the tribunal finds the applicant was not a credible witness.

    Kidnap

24. In her written claims, the applicant claimed there was an attempt to kidnap her by the husband’s parents in Nepal. However at hearing, despite a number of promptings from the tribunal about the applicant’s claims, the applicant did not mention the kidnap attempt until the tribunal put it directly to her. The tribunal considers this odd given the applicant’s limited number of claims and that this would have been a key event.

25. Further, the applicant’s evidence about the attempted kidnap was vague, inconsistent, changed and lacked credibility. For instance, her claims about the contents of the kidnap note were not consistent. In her written claims, the note said ‘if [the applicant] did not leave the husband as soon as possible they would kill her’. However at hearing, the applicant said the note said ‘wherever you go will kidnap you, it is our responsibility to kidnap you’.  Contrary to her written claims, the applicant told the tribunal the note did not explain the reason for the kidnap. The tribunal considers the applicant’s evidence about whether the reasons for the kidnap were disclosed was not consistent.

26. Further, the tribunal considers that if the motivation for the kidnap was to break up the marriage, it is odd that the proposed solution was to kidnap her, rather than do some other harm to her. When these concerns were put to her at hearing, the applicant said the family would go to jail if they killed her so they would not want to kill her, but rather kidnap her. When the tribunal noted they would likely receive jail sentences for both kidnapping and murder, the applicant then changed her evidence saying the note said she would be kidnapped and killed. The tribunal considers the applicant changed her account a number of times in response to the tribunal’s concerns and was not recounting a true event.

27. The applicant claimed she was not at home when the four kidnappers came to the house. However, when the tribunal expressed concerns that she would know there were four kidnappers if she were not there, the applicant gave two accounts on why she knew, which the tribunal considers are not credible. Initially, the applicant claimed that the people she lived with were there and told her. The tribunal expressed doubt that the housemates would allow strangers into the house and not call police when they ransacked it. The applicant hesitated and added that the people were on their way to work so they could not be bothered.

28. When the tribunal expressed concern at the credibility of the accounts, the applicant said she may have had trouble hearing. The tribunal repeated the evidence and the applicant confirmed her account.  She then added people in Nepal do not know what they are up to. The tribunal finds the applicant’s account that housemates would allow strangers into the house is not credible. Further, that the housemates were on their way to work and could not be bothered to do anything or report it to the police is further lacking in credibility. The tribunal does not accept the applicant’s explanations. The tribunal considers the applicant was trying to explain how she knew the number of kidnappers given her claims she was not home. The tribunal considers the applicant was making up the account as she went and finds it lacks credibility. 

29. For the reasons set out above, the tribunal does not accept the applicant’s claims of an attempted kidnap.

    Threats

30. The applicant’s account about threats made to her by the husband and his family were not consistent and developed throughout the application process. For instance, at interview the applicant claimed her fear was from the husband’s parents[1] but that she had had no contact with the husband since he left Australia and no contact with his parents.

    [1] Put pursuant to s424AA procedure

31. However at hearing, the tribunal found the applicant’s evidence evasive, hesitant and changed.

32. Initially, when asked about her last contact with the husband, the applicant avoided the question. Eventually she said her last contact was when she talked to him on the phone in December 2011. She said she had not had any contact with his family since a few days after the wedding in 2003. The applicant confirmed she was in contact with her own family and the last contact being New Years. There was no mention of any recent threats.

33. However, later the applicant claimed (in response to tribunal concerns that contact with the husband and in-laws was many years ago) the husband had threatened her parents (and assaulted her father) in January. The applicant claimed the husband told them, when the applicant came to the airport he would finish her unless she gave him [amount] rupees.  The tribunal considers the applicant added this new account in response to tribunal concerns. The tribunal does not accept that the husband threatened her parents. She did not raise this claim initially but did so in response to tribunal concerns. Further, it is at odds with the fact that when she stopped giving him money the husband went home to Nepal in 2012 and that was the last she heard from him. The tribunal considers this is not consistent with her claims that he threatened her or parents three years later.

34. For instance, at hearing the applicant’s account about the husband’s threats was confused and changed. Initially she said he threatened her in Australia because she could not find a job in [City 1] and so she went to [Town 1] for work. She said everything was ok after that and he relied on her for his fees. Then the husband found another girl, was drinking and they fought. She stopped sending money to him and the fights started. When the tribunal noted the husband did not appear to have acted on threats after she cut off his funds, the applicant initially said that her husband did not do anything or try to visit her but threatened her over the phone. She then added that maybe he could have come to [Town 1] but she changed address. The tribunal noted the applicant had changed her account from the husband did not visit to maybe he could not find her.  The applicant then added that she moved and the husband did look for her. The applicant also added that a friend told her he was looking for her. When the tribunal expressed concerns that this was a new account, the applicant noted that she may have had trouble hearing clearly. The tribunal repeated its concerns about the story. The applicant reiterated that the husband did look for her and it was the truth and she was not asked about it at the interview.

35. When asked if there was anything else, the applicant stated that the husband beat and threatened her a lot in Nepal and Australia. She claimed she did not know she could report it or how to seek help in Australia.  However, the tribunal does not accept that the applicant would not know how to report or to seek help. The applicant had been in Australia since 2009, she had understood how to lodge a [temporary] visa application, a Migration and Refugee tribunal review application, and apply for Ministerial Intervention. The tribunal considers that if the applicant had been frequently beaten and threatened, she would have mentioned those beatings previously in her application and reported it. The applicant had the wherewithal to make visa applications and understand the Ministerial Intervention process and the tribunal considers the applicant equally would know about reporting family violence. The tribunal considers the applicant has added to and embellished her claims in this regard and does not accept that she was threatened or beaten by the husband in Australia or Nepal.

    Marriage and in-laws

36. The applicant claimed she entered into a love marriage with the husband in 2003 in Nepal and her husband’s family did not approve as they were from an upper caste. As a result of untouchability and racism, after the marriage, the husband’s parents did not allow her to enter the house. Therefore, the applicant was an outcast and she and the husband had to live in Kathmandu.

37. While the applicant claimed her in-laws did not approve of the marriage and tried to separate them by the husband going to Australia, this was not consistent with the evidence on the student file. The applicant and the husband both applied for student visas and were granted them at the same time. Further, the family relationship certificate and bank documents provided showed it was the husband’s parents who supported the application for both of them. Further, the applicant and the husband were recorded as residing at the same [address] as the husband and his family, not Kathmandu, as the applicant claimed. The applicant’s passport address was also registered as [that address].

1. Further, the applicant’s evidence about the marriage ceremony was hesitant, evasive and changed at hearing.  When asked if the family attended the wedding, the applicant’s answer was evasive. First, the applicant said it was not a big ceremony.  . Then the applicant said one time they came to an agreement. The tribunal checked that the applicant understood the interpreter, which the applicant confirmed. The applicant then added that the in-laws did not come to the wedding.

2. Further, as discussed at hearing, the marriage certificate had a number of anomalies and did not appear to be genuine. For instance the MC number was blank and the borders around the document were not consistent. In her s424AA response, the applicant said it was the official’s mistake and she was married. However, the tribunal does not accept the applicant’s explanation as the document clearly does not accord with the legal form in a number of respects. It did not appear to be an official document and there were a number of spelling mistakes. Further, it does not accord with official Nepal marriage certificates as set out in the Marriage Registration Rules, 2028 (Schedule 5) as the format and wording was not consistent with the form in a number of respects.[2]

   [2] >

   On the evidence before it, the tribunal has serious doubts that the applicant was ever legally married to her claimed [husband]. The tribunal does not accept that the applicant’s inlaws disapproved of the marriage, or that she was outcast or untouchable or that they threatened her, tried to kidnap the applicant or her family or that they have any interest in her.

   Delay

3. Further, as discussed at hearing, the applicant has not mentioned these claims or fear in any of her prior applications – the [temporary visa] and appeal to MRT. The tribunal notes the applicant was refused the [temporary visa] because she provided false documents and falsely claimed that she had completed a [qualification] (PIC 4020). The applicant applied for review of the decision to the MRT, but did not advance any claims of compelling reasons. If the applicant had feared return or feared the husband, it would be reasonable to expect she would have raised this as a compelling reason to waive PIC 4020. Further, the applicant made no mention of her fear of harm from the husband or his family in her ministerial intervention request.  While she claimed she would face enormous hardship if she had to return and her parents would be very disappointed, this was because returning without acquiring good qualifications in Australia would leave her in a situation of poverty in Nepal. The tribunal considers that if the applicant feared return, she had plenty of opportunity to make those claims in prior applications and since she arrived in Australia in 2009 or in 2011 after her claimed separation. The tribunal does not accept that the applicant was not aware or did not know how to make those claims, as she had the wherewithal to lodge [temporary visa] application, MRT review and Ministerial Intervention request. The tribunal considers the applicant has fabricated her protection claims.

4. The tribunal does not accept that the applicant’s husband or family have threatened her, have interest in her or want to harm her if she returns to Nepal. The tribunal does not accept that the applicant faced any harm in the past. The tribunal finds the applicant is not a credible witness.

   Future harm

5. Looking to the future and given the tribunal’s findings above, the tribunal does not accept the applicant faces a real chance or real risk of harm in the future. As discussed above, the tribunal does not accept that the applicant faces any harm from the husband or his family as these claims were fabricated.

6. While not raised, by implication, the tribunal does not accept the applicant faces any serious or significant harm in terms of employment, being without Australian qualifications or poverty or general economic issues. The applicant has lived and worked in Nepal in the past without qualifications. She has also worked in Australia and supported herself and the husband.

7. While the tribunal has serious doubts that the applicant was ever legally married to the husband, on the benefit of the doubt, the tribunal accepts that the applicant was married but separated in 2011.  However, for the reasons set out above, the tribunal does not accept that the applicant is an outcast or untouchable, or her that her in-laws disapproved of her as claimed.  Further, the tribunal notes there is no legal barrier to intercaste marriage and the government has provided monetary incentives to each intercaste couple married since 2009.[3] 

   [3] DFAT Nepal country report para 3.35

8. The tribunal does not accept the applicant faces a real chance of serious harm or real risk of significant harm upon return to Nepal for reasons of her race, religion or particular social group. The tribunal accepts country information[4] that there is some societal discrimination in respect of women, intercaste marriages and divorced women. However, as discussed above the tribunal does not accept the applicant was kidnapped, threatened by the husband or his family or that they disapproved because she was a lower caste. The tribunal does not accept that societal discrimination as single, separated or divorced woman amounts to serious harm or significant harm. Further, the tribunal does not accept the applicant faces a real chance of serious harm or real risk of significant harm because the applicant has lived and worked in the past in Nepal as a [occupation] for many years and could do so again, even as a single or separated woman. Further, the applicant could live with her parents, with whom she is still in contact.

   [4] DFAT Nepal country report

9. While the applicant may return as a single or separated woman, the tribunal does not accept she faces harm as a single or separated woman as the applicant is contact with her family in Nepal and the tribunal considers she could return to them and find employment as she has before.

10. The tribunal has considered the claims of the applicant individually and cumulatively. For the above reasons, the tribunal finds the applicant faced no serious harm in the past. Looking to the foreseeable future, the tribunal is not satisfied the applicant faces a real chance of serious harm upon return to Nepal for a Convention reason. The tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if he returns to Malaysia.

11. The tribunal has also considered the application of s.36(2)(aa) of the Act to the applicant’s circumstances. In making its findings, the tribunal has considered the Complementary Protection Guidelines as required by Ministerial Direction No.56, made under s.499 of the Act.

12. Considering the applicant’s circumstances and having regard to definition of ‘significant harm’ in s.36(2A), the tribunal does not accept the applicant faces a real risk of arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. As discussed above, the tribunal does not accept the applicant faces any risk of harm from the husband or his family. The tribunal does not accept that return without Australian qualifications or as a single or separated woman amounts to significant harm.

13. The tribunal does not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act.

    CONCLUSIONS

14. 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).

15. 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).

16. 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

17. The tribunal affirms the decision not to grant the applicant a Protection visa.

    Michelle Grau
    Member

    
    

    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.