1513428 (Refugee)

[2019] AATA 5172

1513428 (Refugee) [2019] AATA 5172 (31 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513428

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Tigiilagi Eteuati

DATE:31 March 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 31 March 2019 at 2:24pm

CATCHWORDS
REFUGEE – protection visa – Nepal – particular social group – HIV positive status – limited treatment available in Nepal – social attitudes to HIV positive status – social attitudes to divorced women – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations (Cth), Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379

MIEA v Guo (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 on 2 September 2015 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 on

   
   

   22 January 2015. The delegate refused to grant the visa on the basis that the Applicant did not meet the criteria for the grant of a Protection visa in s.36 of the Act.

3. The Applicant appeared before the Tribunal on 7 April 2016 and 17 February 2017 by video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

CRITERIA FOR A PROTECTION VISA

1. 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, he or she 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.

2. 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 because the person is a refugee.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

4. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

5. The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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: Chan Yee Kin v MIEA (1989) 169 CLR 379.

6. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.

1. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s claims were summarised in her statutory declaration of

   
   

   9 August 2016. The statutory declaration provided as follows:

   “I have a number of fears in relation to my health, wellbeing and safety if I have to return to Nepal, including fears which have arisen since my Interview with the Tribunal on 7 April 2016.

   I was diagnosed with HIV in May 2016.
   I am in good health now and am advised by my treating doctor that I will have a normal, healthy and productive life as long as I can access the treatments that I need. I will need to be on treatment for the rest of my life.

   There is little knowledge around HIV and AIDS in Nepal. People still consider the condition to be fatal and there is a lot of stigma around HIV. People living with HIV are treated very badly by their families and the community.

   I believe that it is very hard to get treatments for HIV in Nepal. I do not believe there is enough treatment in Nepal for everyone who needs it. The health system provides free treatment to a limited number of people and there is a queue. You need money to access medication and treatment that allows your condition to be monitored.

   I am afraid of returning to Nepal due to my HIV status. I fear that as result of being a person living with HIV I will face physical and psychological harm that will affect my ability to subsist.

   People with HIV are cast out from society and will not invite you to any events or functions or provide you with any care or support.

   I fear that I will be socially ostracised and eventually die because of my HIV condition.

   Background

   I am a citizen of Nepal, born on [Date].

   I grew up in [a village] 2 or 3 days walking distance from Kathmandu. My parents were separated when I was very young. My mother moved to Kathmandu and my father was married to another woman. I lived with my father until 1999 when my mother asked my sister and I to come live with her.

   I lived with my mother and sister until I got married [in] April 2007. I then lived with my then-husband in Kathmandu until we departed for Australia.

   My mother is re-married now and my sister was smuggled to India. I have not had any contact with them for 2 or 3 years. I do not know the whereabouts of my sister and have never had the opportunity to speak with her since she was taken to India.

   I was informed in a [social media] message by an old friend, [Ms A], that my sister was sold to India by my father as he was in debt. I believe that I too will be sold to India by my father.

   The [social media] message was sent to me after my interview with the Department of Immigration and before my interview with the Tribunal, this is why I hadn't mentioned the message in my interview with the Department of Immigration. I no longer have this message.

   I tried contacting [Ms A] to ask her more questions but I could not find her on [social media] and it seems she may have deactivated her [social media] or blocked me.

   I tried to contact my mother and sister on the only contact numbers that I had for them but I did not receive any reply and could not reach them.

   I came to Australia as a dependent on my then-husband's [temporary] visa. In Australia, I worked [doing a job task] in [City] while he [was] in Sydney.

   We divorced [in] January 2014. My husband is now remarried and lives in Sydney.

   After the divorce, I was in a relationship until November 2015.

   I received a text message from a 'no caller ID towards the end of April or the beginning of May, stating that my ex-boyfriend has HIV. At first I thought it was a prank but I went to undertake a blood test in May to solve the uncertainty in my mind. I was so shocked when I found out that I am HIV positive. Initially, I felt suicidal due to my medical condition.

   Prior to the relationship with my ex-boyfriend, I had never been in any other sexual relationship other than with my husband. My ex-boyfriend did not inform me that he was HIV positive when we had sex, the first I knew this was from text message that I received.

   The doctor and support workers at [Organisation] told me that as long as I take my medication I can have a completely normal life and normal life expectancy.

   I had a limited knowledge about HIV back when I was in Nepal. I felt very sad and lonely due to the divorce and threats I received from my ex-husband's family, even before having this medical condition. Now I feel more dejected and lonely, and sometimes I have even consider dying is the only option I have in my life right now.

   Fears of inadequate treatment and Discrimination against PLHIV in Nepal

   Treatment facilities for HIV in Nepal are poor.

   I do not believe there is an enough medical treatment in Nepal that will be enough to prevent my HIV condition resulting in my health declining. I fear that returning to Nepal means I am going there to die.

   As I was diagnosed with HIV in Australia and have never had to access treatment for HIV in Nepal, I do not know where HIV clinics are, or where to access HIV treatment. I also do not personally know of anyone in Nepal who is HIV positive.

   HIV is considered to be a very bad disease in Nepal. It is associated with taboo behaviours. Due to the fact that HIV is associated with homosexuals, drug users and sex workers, this makes it highly stigmatised.

   I had a few friends in Nepal before I moved to Australia but I have lost contacts with them since and I am not sure they would remember me ill were to return to Nepal. Even if they remember me, when they find out about my medical condition they will have different attitudes towards me. I have not kept in touch with my parents and I do not know where my sister is, no one in Nepal knows about my HIV status and I am too scared to tell anyone.

   I am frightened if I were to return to Nepal, people might find out about my HIV condition which would cause them to treat me differently.

   I wouldn't be able to survive living in Nepal by keeping my HIV status secret as I would need to ask for help from HIV clinics and family to try to get treatment. I do not believe that I will be able to reliably and consistently access treatment for HIV, if I can't get treatment I will die.

   In Nepal, if people know you have HIV they will not let you go to places, in some situations they can even burn people alive. People are ignorant about HIV and are scared that they will contract the virus if they have any contact.

   People in the community will look down on you and judge you. I do not want to live in a community where I will be constantly judged, where people shun me because I am HIV positive and cannot be free to live a normal life.

   People do not respect the law In Nepal. I fear that because I am HIV positive I will be excluded from home, the community, shunned by society and suppressed until eventually I would feel that I had no option but to take my own life.

   Fears of Discrimination against Divorce Women

   In Nepal, being a divorced woman carries a huge stigma, and the likelihood of re-marriage is low. The majority move back in with their parents and will usually have a very difficult life. Gender equality is non-existence in Nepal. In my case, as I have already lost contacts with my parents, I do not know how to survive due to my social status if returned to Nepal.

   My mother faced a lot of harm as a result of being a divorced woman. She was beaten and treated badly, but I know that there were many more things that happened to her that she didn't tell my sister and I, perhaps to try to protect us. My mother didn't remarry until after I had left Nepal so I do not know how she was treated in that new relationship; I do know that after I arrived in Australia my mother contacted me a number of times asking for money so I don't think she was well cared for.

   There are many sexual violence Incidents in Nepal towards women who have been divorced. A divorced woman can be a rape victim because of her divorce status. Society will look down on me as an easily available woman.
   There are assumptions that divorced woman are regarded as having a bad character, these assumptions will be strengthened because I am HIV positive.

   I have heard a lot of incidents where single, especially divorced women, were treated violently in Nepal.

   After divorce, I asked my ex-husband's family whether I could live with them as the sole reason why I first came to Australia was to contribute financially towards their son's [visit to Australia]. I explained to them I am alone and I have no family members who I can get help from. They responded harshly telling me there is no place for me in Nepal; they said you can die In Australia and whatever I do is not a matter of their concern.

   Now because I am divorced I have no one and nowhere that I can turn to for help and support. With no help from family I don't know how l will survive in Nepal or how I will access treatment for HIV.

   I am even scared that if I did try to get help or support from my father that he would then sell me to India like my friend warned me on [social media].

   Inability to relocate within Nepal

   I am not able to relocate to other parts of Nepal to find safety. I will not be able to have the financial security to live In different parts of Nepal. Once the community find out I have HIV I will be discriminated against and my employment chances will be none existent.

   I have never received any education because the village that my family lived before moving to Kathmandu was very remote. My father left the family very long ago and my mother was busy supporting my sister and I; therefore, nobody sent me to school. Thus, I have very limited skills In order to get a job in Nepal.

   I have been working on a farm since arriving in Australia but it would be difficult to find the same line of work in Nepal as most of the farms are family owned and operated, and if people knew that I am HIV positive then there would be no chance of them letting me work on their farm. If I cannot get a job and am unable to financially support myself, there is no way I can relocate within Nepal as it would be impossible without family support or financial security, of which I will have neither because I am divorced and because I am HIV positive.

   Inability to relocate in India

   I am aware of the Treaty of Peace and Friendship between Nepal and India.

   I do not believe that this treaty provides me with a legally enforceable right to enter and reside in India.

   I fear that even if I were to attempt to relocate to India that I would be at risk of being returned to Nepal and I also fear that I would face significant harm or persecution in India.

   I do not know anyone who lives in India. I do not have any family members or have any friends In India in which I can seek help from if I were to be relocated there.

   I have never been to India before, I do not know what the laws and customs are and I am terrified that I will not be able to access my HIV medication as the Indian people may discriminate against me due to my HIV status and because I would be a single migrant woman.

   I fear that even if there is HIV treatment in India that it would not be available to everyone.

   If I have to move to India I would not be able to find employment. Without employment, I would not be able to access my medication and in turn I will most likely end up dying.

   As a single and divorced woman without any family or community support in India I fear that I may face harm in India. I understand that women are treated badly in India if they are not see as respectable, as a migrant, single, divorced woman I would not be seen as respectable and I fear I may be physically harmed or attacked.

   I fear that the attitudes towards people living with HIV in India would be similar to those in Nepal. I fear that my ability to subsist would be further threatened in India as I would have even less of a hope of accessing community or familial supports.”

2. At the hearing before the Tribunal the Applicant claimed that she was born in a small village in Nepal in [Year] and moved to Kathmandhu in 1999. She said that her parents had separated when she was very young and that her father remained in the village with his new family while her mother moved to Kathmandu. The Applicant explained that she and her sister were raised by her grandparents in the village until she relocated to Kathmandu in 1999. The Tribunal asked how large the village was and whether there were any schools or hospitals in her village, to which the Applicant responded that there were about [number] houses and [number] schools. When asked which school she went to, the Applicant stated that she never attended school and was illiterate.

3. The Applicant explained that after her mother had separated from her father her mother had relocated to Kathmandu and worked making [products]. The Applicant said she was responsible for the housework.

4. The Applicant said that she married her ex-husband [in] April 2007 and that it was a love marriage. The Applicant explained that her ex-husband’s family did not accept her because she was of a different caste from her husband. She indicated that she was a [Caste 1] and her husband was a [Caste 2] and her ex-husband’s family opposed the marriage on the basis that it was an inter-caste marriage and that her ex-husband was from the [higher] caste.

5. The Applicant indicated that she was not accepted by her ex-husband’s family and was not welcome in their home. She said that after she was married she and her ex-husband lived together in rented accommodation before moving to Australia in 2009. The Applicant claimed that she was beaten by her ex-husband’s mother when she visited the rented accommodation.

1. The Applicant claimed that her husband had made her sign divorce papers in 2014. She said that her husband, who was living in Sydney, sent her papers to [City] where she was staying and then telephoned her asking her to sign the papers. She said that did so not knowing that they were divorce papers.

2. The Applicant claimed that two days after she discovered this, she telephoned her ex-husband’s mother in Nepal to tell her that her son had divorced her. She said that her ex-husband’s mother indicated that she had been involved in a plan to have the couple divorced. The Applicant was asked if she had ever been threatened by her ex-husband’s family. She said that she had told her ex-husband’s mother that she would return to Nepal and reside with her ex-husband’s family and that her ex-husband’s mother said that she could not reside at their residence. The Applicant said that the Applicant’s mother had said that if she tried to reside at her residence she would kill the Applicant, throw acid on her face, and pay for someone to kill her.

3. The Applicant stated that she could not return to Nepal as she had nobody to take care of her. She said that she no longer spoke to her mother or her sister. She said that she had stopped talking to her mother and sister in 2012 or 2013. She said that she was uneducated, poor, divorced, suffering from HIV, had never worked and had lost all contact with family members in Nepal.

4. The Applicant said that she had been told in December 2015 that her mother could not be located and her sister had been sold into slavery by her father. The Applicant also indicated that she could not reside with her ex-husband’s family as she was not welcome there and would be killed if she approached them for assistance.

5. The Tribunal indicated that the new claim regarding her sister being sold into slavery by her father had not been raised before the delegate. The Applicant responded that she had only been informed of her sister’s fate after the Departmental interview.

6. The Tribunal asked why the Applicant had not applied for protection sooner and she indicated that she did not know about Protection visas at the time. The Tribunal reminded the Applicant that she had previously said that she knew many people in the Nepali community in [City] that had applied for Protection visas. The Applicant said that she only found out recently that these people had made Protection visa applications.

7. The Tribunal asked whether the Applicant could reside in India and she said that people that look like her are mistreated in India and that it was not safe in India. She said that her sister was sold in India. The Tribunal asked how she knew her sister was sold in India. The Applicant said that she had been told that her sister was sold and she understood that it was common for poor young women to be sold and sent to India.

8. The Applicant said that after she had been divorced by her husband she began a relationship with another man. She said that she was diagnosed with HIV in

   
   

   May 2016, having contracted HIV in Australia. The Applicant provided medical evidence to the Tribunal that supported these claims.

9. The Applicant claimed that the fact that she now had HIV significantly added to her fears that she would be harmed if she returned to Nepal. She said that the population in Nepal was ignorant in relation to sufferers of HIV. She said that there was a general fear within the population in Nepal that HIV sufferers were highly contagious. She said that HIV sufferers in Nepal were discriminated against, ostracised and often harmed or killed. She said that HIV sufferers in Nepal were disowned by their relatives.

10. The Applicant’s representative had provided information to the Tribunal which supported the Applicant’s evidence. That evidence included articles and studies which indicated that HIV remained a highly stigmatised illness in Nepal whereby sufferers of HIV faced discrimination and harm from their family, society and health facilities. That information described social isolation, restrictions on participation of HIV sufferers in social events, exclusion from some public places including shops, social harassment and refusal of services including medical services.

11. The Applicant’s representative also provided reports which indicated that women with HIV were highly vulnerable to different forms of violence in Nepal. The report indicated that the prevalence of violence for women in Nepal almost doubled for HIV positive women. Some of the violence recorded included beating, slapping, kicking, strangling, stabbing and being hit with weapons and other objects.

12. The Applicant’s representative provided the Tribunal with a recent report which indicated that, of the 40,000 to 50,000 people with HIV in Nepal, only 8,860 were receiving antiretroviral treatment, necessary to manage the illness. The evidence provided indicated that approximately 2,300 people with HIV in Nepal died annually from HIV-related illness. This was compared to the situation in Australia where the death rate from HIV-related illness is almost non-existent.

13. The evidence before the Tribunal was that treatment for HIV was available to all in Australia and that the treatment available was much more advanced than that available in Nepal. In addition, Nepal faced severe funding restrictions in relation to the provision of HIV treatment to its people.

14. The Applicant’s representative provided the Tribunal with country information about the violence suffered by women in Nepal and particular by divorced women.

15. The Applicant’s representative provided the Tribunal with country information including various articles and reports which indicated that as a single, uneducated, divorced woman with HIV, that the Applicant would suffer similar or greater harm if she were to reside in India rather than Nepal.

16. The Tribunal considered the report by the Department of Foreign Affairs and Trade entitled “DFAT Country Information Report 1 March 2019.” That report contained the following information about the difficulties faced by women in Nepal:

    “Women

    3.61 The 2015 Constitution prohibits discrimination on the basis of gender in relation to inheritance and government employment and allows for ‘positive discrimination’ to establish special opportunities in relation to education, health, employment and social security. The constitution also prohibits physical, mental, sexual and psychological violence against women and establishes the right to compensation for such violence.

    3.62 The World Economic Forum’s Global Gender Gap Report 2017, an index that measures gender-based gaps in accessing resources and opportunities ranked Nepal 111 out of 144 countries.

    3.63 The practice of ‘chaupadi’, in which women are expelled from their homes during menstruation and sometimes after childbirth, persists, despite being outlawed in 2005 and prohibited in the 2017 criminal code. The practice sees menstruating women, particularly in rural western parts of the country, affected by ‘untouchability’. These women will live in sheds that are otherwise used by cattle or specially designed for this purpose as ‘menstruation sheds’ where they may be exposed to extreme temperatures and wild animals including venomous snakes. During this time they are not allowed to access green vegetables, fruit, other plants or milk and have limited access to water. Women are expected to engage in outdoor manual labour during this time. These conditions may be life threatening. Chaupadi may be known by different names including chhue, bahirhunu, chaukulla or chaukudi, depending on the district. While mostly associated with rural areas, particularly in the west of the country, taboos about menstruation can be found across the country, including in urban areas and among women who remain displaced by the 2015 earthquake and living in temporary shelters.

    3.64 Nepali women and girls across society, regardless of their economic, caste or ethnic status, are vulnerable to violence in many forms, including rape, sexual abuse and human trafficking. Nepal’s laws contain a narrow definition of rape and have a 180-day limitation period for filing complaints. Penalties for marital rape are low and the crime is rarely reported. The 2017 criminal code set new, higher gaol sentences for rape, however DFAT is not aware of whether this provides an effective deterrent. Police frequently fail to register complaints or investigate and prosecute rape cases, and often divert cases to settlement though informal justice mechanisms, particularly in rural areas.

    3.65 Reports of sexual assault to police are increasing as awareness of the criminal nature of that act and the police response increases. Most rapists are close family members and women from low socio-economic communities are particularly vulnerable.

    3.66 According to the 2018 statistical update to the United Nation’s Development Fund’s Human Development Report, 25 per cent of women have experienced intimate partner violence in Nepal. Domestic violence shelters do exist in small numbers in some districts. They do not provide long-term solutions, often limited to 45 days of residence, and women who temporarily live in shelters are often forced to return back to their violent domestic situation due to a lack of alternative options. Many women lack financial independence and are reluctant to seek help in situations of violence because of the risk to their security and livelihood.

    3.67 The 2009 Domestic Violence Act provides for monetary compensation and psychological treatment for victims, but authorities generally do not prosecute domestic violence cases. The legislation has a reconciliation and mediation approach and compensation must be pursued through the courts.

    3.68 Sexual harassment is a commonly reported problem. The practice is banned, but women’s groups report that penalties are not severe enough to act as a deterrent. Women who work in the informal sector are particularly vulnerable to sexual harassment.

    3.69 The mistreatment and killing of women for allegedly practising witchcraft is still prevalent in Nepal. Allegations of witchcraft most often relate to the onset of sickness or death amongst people and animals. Diseases spread through epidemics are also believed to be related to black magic. Victims are often beaten and forced to consume human excrement. Victims are usually poorly educated, economically vulnerable, from low-castes with little support around them. Widows are particularly vulnerable. Women do not often report cases because of a fear of being abandoned by their families and ostracised from their communities. The Anti-Witchcraft Act 2015 provides for jail sentences of 5 to 10 years and fines of up to AUD$1,400 for those convicted of maltreatment of anyone on accusations of witchery.

    3.70 Nepali police have set up special women’s cells in police stations that are staffed by female police officers to facilitate the reporting of crime by women in all districts. NGOs report that many of these cells are not fully operational, but that the situation is improving and that the police have continued to resource and improve these services.

    3.71 Nepali women rarely receive the same educational, employment and economic opportunities as men. Girls in particular are vulnerable to early marriage which disrupts or ends their formal education. Single women and widows are particularly vulnerable. While a widowed woman is legally entitled to her late husband’s estate, many widows are unaware of their rights or unable to enforce them due to traditional attitudes and weak legal protections.

    3.72 Part 2 of the 2015 Constitution has introduced positive changes to the citizenship rights of women. Children’s citizenship can now be conferred through a mother or father, whereas in the past citizenship had to be attested to by a husband or father.

    3.73 Current laws allow foreign women married to Nepali men to immediately obtain Nepali citizenship while foreign men married to Nepali women can only become a naturalised Nepali after domiciling permanently in Nepal for fifteen years. These men also face other restrictions including restrictions on employment and restrictions on the length of visas that they are able to obtain. Legislation stemming from the constitutional changes has not been finalised. The United States 2015 Human Rights Report for Nepal noted the ongoing difficulties faced by people whose citizenship was based on naturalization (rather than descent). However, endorsement from a husband is required for citizenship by descent for women, which this has been known to be refused by husbands (or their families, in the case of widowed women), for example in property disputes; a non-citizen cannot own property.

    3.74 Women’s NGOs report that it is difficult to obtain a divorce in Nepal. Legal changes have made it possible for a woman to divorce her husband and still keep some of the property, and even to gain child custody rights. However, such court cases can be lengthy and expensive and it can take many months to obtain a divorce if the woman makes any kind of property or custody claims.

    3.75 DFAT assesses that women in Nepal face high levels of societal and official discrimination and a moderate risk of violence. However, the experience of individual women varies. Women from poorer or lower-caste backgrounds experience a higher risk of discrimination and violence.”

17. The DFAT report contained the following information about victims of human trafficking in Nepal:

    “Victims of Human Trafficking

    3.90 The US Department of State gave Nepal a ‘Tier 2’ (out of 4) rating for trafficking in persons in its 2018 report, noting that the government does not fully meet US-legislated standards to end human trafficking but that it is making significant efforts to do so, including increasing numbers of investigations, NGO activities including shelters for victims and new regulations on recruitment agencies.

    3.91 Child labour and traditional practices of bonded labour such as haliya (the system whereby agricultural tillers in the western hills of Nepal are indebted to their landlords), kamaiya (a system of bonded agricultural labour outlawed in 2002) and kamlari (domestic work undertaken by the unmarried girls of kamaiya families) are still prevalent in some remote regions of Nepal. In June 2013, the government officially abolished the kamlari system of bonded domestic slave labourers and in July 2018 the Supreme Court ordered the government to provide rehabilitation services to victims within three years. Under the 2015 Constitution every citizen has a right to choose their own employment and a right to fair remuneration.

    3.92 Overseas worker remittances form an important part of Nepal’s economy. Bonded labour may result from debts incurred to recruiters, who may misrepresent the services that they provide and demand payment for overseas placement. Women under the age of 24 are banned from overseas travel for the purposes of domestic employment, in an attempt to prevent human trafficking. This has allegedly led to women choosing to go to India via informal channels. Trafficking of young women from Nepal for prostitution in India is common and trafficking via India to the Middle East and Africa is also reported to occur. Women may also be trafficked into domestic service and men may be trafficked into the construction business.”

18. The DFAT report contained the following information about State protection by police, the judiciary and the government in Nepal:

    “ 5.7 Police effectiveness is limited by a lack of resources, corruption, nepotism and a culture of impunity, particularly among low-level officers. Nepali police agencies are hindered by a lack of adequate transportation, training, and equipment. Many crimes in rural areas occur with inadequate police intervention or follow-up.

    …

    5.12 Despite constitutional guarantees, many courts suffer from endemic corruption, and many Nepalis have only limited access to justice. According to Freedom House, frequently suspects can be kept in pre-trial detention for periods longer than any sentences they would face if tried and convicted owing to heavy case backlogs and a slow appeals process. DFAT assesses that vulnerability of courts to political pressure, bribery and intimidation is more pronounced in lower level courts.

    5.13 Supreme Court rulings, including in relation to human rights which are critical of the government, are not always adhered to by the government.”

19. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the Applicant satisfies s.36(2)(aa) of the Migration Act.

20. 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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the Applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the Applicant's case for him or her. It is the responsibility of the Applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

21. The Tribunal finds the Applicant is a national of Nepal. She provided a copy of the identity information pages of her Nepal passport to the Department. The Applicant made no claim to be a national of any other country. The Tribunal accepts the Applicant’s claims should be assessed against Nepal for the purposes of the s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).

22. The Tribunal considers that the Applicant does not meet the criteria for the grant of a Protection visa in section 36(2)(a) because she is not a refugee as defined in s.5H of the Act. That is because the Applicant does not have a well-founded fear of persecution for the purposes of s.5J as the Applicant does not fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. However, the Tribunal has found that the Applicant meets the criteria for the grant of a Protection visa in s.36(2)(aa) of the Act as the Tribunal has found that there is a real risk that the Applicant will suffer significant harm if returned from Australia to Nepal.

23. The Tribunal accepts that the Applicant is a single, uneducated, divorced Nepalese woman suffering from HIV. The Tribunal accepts that the Applicant is a Hindu of the [Caste 1] caste. The Tribunal accepts that the Applicant married her ex-husband, a [Caste 2], in 2007 in a love marriage. The Tribunal accepts that the Applicant’s ex-husband’s family were unhappy with the inter-caste marriage and wished for the couple to divorce. The Tribunal accepts that the Applicant was mistreated by her ex-husband’s family, that she was forbidden to enter his family’s home and she was assaulted by her ex-husband’s mother on occasion when the mother would visit their home.

24. The Tribunal accepts that the Applicant and her husband divorced in 2014. The Tribunal accepts that the Applicant was threatened by her ex-husband’s mother when she called the mother indicating that she intended to return to Nepal to live with her ex-husband’s family. The Tribunal accepts that the Applicant believed that she was entitled to the support of her ex-husband’s family as she had been supporting her ex-husband financially during their time in Australia. The Tribunal accepts that the Applicant’s ex-husband’s mother told the Applicant that she would be seriously harmed and killed by the ex-husband’s family, or their associates, if she attempted to seek their assistance on her return to Nepal.

1. Although the Tribunal has some concerns with the Applicant’s evidence in relation to her claims that her sister had been sold into slavery by her father, the Tribunal is willing to accept that the Applicant was told this in December 2015 and that she has not heard from her mother or her sister since.

2. The Tribunal is not satisfied that the Applicant meets the criteria for the grant of a Protection visa in s.36(2)(a) of the Act. That is because the Tribunal does not accept that the harm the Applicant fears arises for reasons of race, religion, nationality, membership of a particular social group or political opinion, as required by s.5J of the Act.

3. However, the Tribunal finds that the Applicant meets the criteria for the grant of a Protection visa in s.36(2)(aa) of the Act as the Tribunal has found that there is a real risk that the Applicant will suffer significant harm if returned from Australia to Nepal.

4. More specifically, Tribunal considers that the harm that the Applicant fears arises, not because of her membership of a particular social group, but because of a number of factors which relate to her in particular which, when considered cumulatively, present the reason that a real risk of significant harm to the Applicant arises.

5. Those factors include that the Applicant is a single, uneducated, divorced, Nepalese woman suffering from HIV. These factors when considered cumulatively in the Applicant’s circumstances give rise to a risk that the Applicant will suffer significant harm if she were to be returned to Nepal or India.

6. The DFAT report assesses that women in Nepal face high levels of societal and official discrimination and a moderate risk of violence. The DFAT report assesses that women from poorer backgrounds, such as that of the Applicant, experience a higher risk of discrimination and violence including rape, sexual abuse and human trafficking. That risk of harm is increased for divorced women.

7. In addition, the Tribunal accepts the Applicant’s evidence that women with HIV are even more susceptible to harm including violence because of societal attitudes towards women with HIV in Nepal. The Tribunal considers that her circumstances, including suffering from HIV, are likely to lead to a level of social isolation and an inability for her to support herself.

8. Additionally, the Tribunal accepts that there is a good chance that the Applicant will not receive adequate treatment for her HIV in Nepal. This may result in a deterioration of her health. This in turn would make the Applicant even more vulnerable and susceptible to harm including severe physical harm and the risk of being forced into slavery and prostitution. This risk is amplified by the possibility that the Applicant’s father may be seeking to sell the Applicant into slavery, as has been reported that he has done with the Applicant’s sister.

9. The Tribunal considers that as the Applicant is likely to find herself in a severely vulnerable position in Nepal, and as she has indicated a determination to do so, there is a real risk that the Applicant will seek assistance from her ex-husband’s family. This in turn would put the Applicant at risk of physical harm by her ex-husband’s family.

10. The Tribunal does not consider that relocation within Nepal would in any way remove the real risk that she will suffer significant harm. Further, the Tribunal accepts the Applicant's submission that, as with her situation in Nepal, that there is a real risk that the Applicant will suffer significant harm if she were to relocate to India.

11. The Tribunal does not consider that the Applicant would be afforded state protection given the evidence before the Tribunal of the limited effectiveness of the Nepalese authorities, including in protecting women from harm in Nepal. The Applicant is unlikely to be in a financial position to bribe the local authorities, or those in India in order to gain effective protection.

12. After assessing all the evidence and being mindful of the Applicant’s personal circumstances, the Tribunal has considered the claims of the Applicant individually and cumulatively. The Tribunal finds that there is a real risk that the Applicant will suffer significant harm at the hands of members of the Nepali society, and possibly her father and the family of her ex-husband, if she is returned from Australia to Nepal. That harm could include serious physical harm and being sold into slavery and prostitution. The Tribunal considers that this harm constitutes cruel or inhuman treatment or punishment; or degrading treatment or punishment for the purposes of s.36(2A) of the Act.

13. For the reasons given above, the Tribunal is satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s.36(2)(aa) of the Migration Act.

Tigiilagi Eteuati
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:

(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)that is not inconsistent with Article 7 of the Covenant; or

(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)that is not inconsistent with Article 7 of the Covenant; or

(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)for the purpose of obtaining from the person or from a third person information or a confession; or

(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)for the purpose of intimidating or coercing the person or a third person; or

(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
receiving country,  in relation to a non-citizen, means:

(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5J Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:    For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:    For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K  Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L  Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA  Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

..

36Protection visas – criteria provided for by this Act

…

(2A)A non‑citizen will suffer significant harm if:

(a)the non‑citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…