1513803 (Refugee)

[2017] AATA 2366

1513803 (Refugee) [2017] AATA 2366 (2 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513803

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Paul Millar

DATE:2 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 02 August 2017 at 3:55pm

CATCHWORDS
Refugee – Protection visa – Nepal – Imputed political opinion – Pro-Monarchist – Attacked by Maoist –– Allegedly killed by Maoists – Credibility issues – Remote risk of harm

LEGISLATION
Migration Act 1958, ss 5H(1)(a)-(b), 5J(1), 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A), 36(2B), 65, 438 ,499
Migration Regulations 1994 Schedule 2

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 [in] September 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).  The first named applicant (‘the applicant’) is a [age] year old man from Nepal and the second named applicant is his wife.  The second and third named applicants are their children.  The applicants, who the Tribunal finds to be citizens of Nepal, applied for the visas [in] April 2015.[1] Only the applicant made claims for protection. The delegate refused to grant the visas and the applicant and his wife appeared before the Tribunal on 19 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. 

   [1] The Tribunal's finding on citizenship is based on the applicants' Nepal passports produced at the Tribunal hearing.

   RELEVANT LAW

2. 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.

3. 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.

4. 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).

5. 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.

6. 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).

7. 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 (‘the department’) – 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[2]

   [2] In this respect, the Tribunal has taken account of DFAT Country Information Report Nepal issued on 21 April 2016 but the Tribunal does not rely on its contents in determining this review.

   FINDINGS

8. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the department and to the Tribunal, the applicant claims protection on the ground that Maoists will harm him.[3]  The Tribunal holds the following concerns about the credibility of the applicant’s account.

   Credibility concerns

   Evidence about the applicant’s life in Nepal prior to leaving his local area

   [3] The applicant's evidence to the department and the Tribunal comprises the contents of his protection visa application forms; his written statement dated  [September] 2015; his evidence at his interview with the delegate for which there is an audio recording on the department file and to which the Tribunal has listened and his evidence at the Tribunal hearing.  The Tribunal had access to the department files relating to applications made by the applicants for visitor visas.  The contents of those files are not relevant to the grounds on which this review has been determined.

9. To the Tribunal, the applicant said that he was born in the area [where] he attended school and lived with his family.   He recalled that in his last year of school, around [date], Maoists were present in his local area and he had difficulties with them. When asked what those difficulties were, the applicant said that the Maoists would tell him that he should join and fight for them.  He said that this occurred when he saw them on the street, at school and on one occasion when they came to his home. He said that they came in a group to his school and they threatened to beat him and those with him if they did not join them.  Even so, the applicant said that on these occasions he would argue with the Maoists and put his pro monarchy views to them.  On the occasion they came to his home, they took him to a [location] where they held him for about two hours again asking him to join them, threatening to kill him if he did not and warning him not to raise political issues, demands he refused.  The applicant said that he was never assaulted by Maoists on any occasion.

10. In his written statement of [date] September 2015, the applicant referred to the outbreak of war in 1996, school friends becoming Maoists and abuses being committed by both government security forces and the Maoists with large numbers of innocent people being killed.  The applicant said that he was ‘absolutely terrified’ by the conflict.  He mentioned an occasion when Maoists detained him for nearly two hours, which left him ‘mentally tortured’ and during which they said they would kill him if he supported the monarchy.  He said that he thought that he was going to be killed anytime by the Maoists if he stayed in Nepal. The Tribunal put to the applicant that his statement made no mention of the evidence he gave to the Tribunal that he had been argumentative with Maoists and directly asserted to them his pro monarchy (and therefore anti Maoist) views when he encountered them.  If anything, the reference in his written statement to being ‘absolutely terrified’ along with the omission of this evidence from the statement conveyed the impression that the applicant in fact did not argue with Maoists and assert his political views as he had claimed to the Tribunal.

11. In response, the applicant said that maybe he left some things out of the written statement.  The Tribunal can allow for the omission of evidence from written statements lodged in support of protection visa applications but what is at issue here is actually an inconsistency in his account.  The impression conveyed by the applicant’s written statement is that he was afraid during this conflict due to abuses committed by both sides and at no stage did he ever confront Maoists with his views and argue with them.  That is inconsistent with the account he has given to the Tribunal about this and his claim that perhaps some things were left out of the written statement is not a satisfactory explanation for this discrepancy.[4]

    Evidence about return visits to Nepal from [Country 1] including the final return in January 2015

    [4] The Tribunal acknowledges that in his written statement the applicant did make reference to being unable to stay silent if he saw something was wrong and arguing with anti-monarchists but this was in relation to the period after he stopped working in [Country 1] and returned to Nepal to live in early 2015.

12. The applicant told the Tribunal that later in 1996 he stopped living in his native area to apply [for a job] culminating in the applicant going to live in [Country 1] from January 1997 where he worked as a[occupation].  The applicant said that he ceased living in [Country 1] in January 2015 when he returned to Nepal with the intention of living there permanently.   The applicant also told the Tribunal that before and after he went to live in [Country 1] his father was an active local leader in [a] committee and the Rastriya Prajatantra Party (‘RPP’) which led to him being threatened by Maoists on a number of occasions and on some occasions beaten.  In September 2007, his father was abducted by Maoists and killed by them in a nearby jungle.

13. The applicant told the Tribunal that in the period he lived and worked in [Country 1] he returned to Nepal on a number of occasions.  The Tribunal questioned the applicant closely about these occasions and understood from the applicant’s evidence that he did not consider it safe to stay in his native area for any period, preferring to stay in Kathmandu, including return trips made after the Maoists came into government, according to the applicant, in 2008.  He would go in a form of secrecy to his village, back and forward, staying only a few nights not wanting to expose himself to harm from Maoists. Even so, the applicant said that in 2003 he got married in his native area, albeit, due to his fear of harm from Maoists there, he stayed mostly in Kathmandu.

14. When asked why he would risk getting married in his native area if, at the same time, he was unwilling to stay there due to his fear of Maoists, the applicant said that it was village tradition and his wife, who lived in Kathmandu with her family, was born there. He said that he did not have the same fear at that time because his brothers told him he could come to the local area then.  The Tribunal is not persuaded by these responses because the applicant said that he nevertheless stayed mostly in Kathmandu on that trip.  In addition, notwithstanding this willingness to get married in his local area, the applicant told the Tribunal that he was too afraid to return to Nepal in September 2007 to attend his father’s funeral.  In his evidence, the applicant said that on subsequent trips to Nepal only sometimes would he go to his native area, because, as the Tribunal understood it, he feared for his safety.

15. Finally, in early 2015, the applicant returned to Nepal with the intention of residing there permanently. Surprisingly, notwithstanding his reluctance to stay in his local area on previous trips, just one week after returning to Nepal, on this occasion, the applicant went to his local area and remained there for two weeks.  He said that he was very involved in local  [work] being undertaken in the village. He was giving donations for those public works as well as encouraging people to become involved in them.  Because of this and because he had returned to Nepal from living and working in another country, the applicant came to the attention of Maoists who, after he had been there about two weeks, came to his family home in the evening demanding a large sum of money from him.

16. The applicant paid a smaller amount, promising to pay the remainder on [date] April 2015. The Maoists threatened to kill the applicant if he did not pay and the applicant immediately returned to Kathmandu where his wife and children were staying.  The family left Nepal soon after and came to Australia. The Tribunal had difficulty accepting the applicant’s willingness to go to his local area in early 2015 and become involved in projects and behave in a manner that brought him to the attention of Maoists when the Tribunal understood his evidence to be that on previous occasions he stayed only briefly in his local area, went there more or less covertly, not wanting to encounter and suffer harm at the hands of Maoists. 

17. The Tribunal put this to the applicant and he said that when he returned to Nepal in early 2015 he thought that the Maoists would change and just be normal.  When asked why he thought that way, he said that the Maoists were in government.  The Tribunal does not accept that explanation because he also said the Maoists came into government in 2008 and the Tribunal understood the applicant’s evidence to be that on return trips to Nepal he feared for his safety in his village, staying briefly and in secrecy, the only exceptions to this being the year he married and his final trip in early 2015. 

18. In response to this concern, the applicant also said that he never claimed he did not stay in his local area due to any fear. He said that when people from Nepal returned there to live after working abroad they favoured urban areas where it was better to raise children that being the reason the applicant lived in Kathmandu when returning to Nepal to live in early 2015. The Tribunal rejects the applicant’s denial that he ever said that due to fears for his safety he did not stay in his local area.  That is because, in his earlier evidence, the Tribunal understood the applicant to give that very evidence which is why he said he went in secrecy and stayed only a few nights, staying the rest of the time in Kathmandu.  He may well have stayed in Kathmandu because it was an urban area but the tenor of his evidence was that he also did that for his safety on previous trips.

19. As a further explanation for his willingness to stay in the village in early 2015 and behave as he did, the applicant also claimed that on that occasion he wanted to contribute to his local village and a lot of building work was going on at that time.  Even if that was the case, the Tribunal still does not accept this sudden and complete change in his behaviour and attitude from his behaviour on previous trips to Nepal.  At another stage of his evidence the applicant said that he had contributed to the village while he was living and working in [Country 1] from where he also provided small donations to the RPP through the internet.  However that also does not resolve the incongruity of the applicant’s change of attitude in early 2015 toward spending time in his local village and undertaking activities there.

20. Overall, the Tribunal finds that the applicant has given unconvincing and inconsistent evidence about the way he conducted himself on these return trips to Nepal.  On the one hand, he claimed that he did not feel safe staying in his native village.  On the other hand, he was willing to marry there, even though, after that he was too afraid to attend his father’s funeral there.  Then, in early 2015, he was not only willing to stay in his village but behave in a way that brought him to the attention of those he claims to fear and he has not given an adequate explanation for that.

    Evidence about events following the visit from the Maoists in early 2015

21. To the Tribunal, the applicant said that after the visit from the Maoists to his family home in his native area he immediately returned to Kathmandu where he and his family remained for one week before leaving Nepal.  He said that he did not tell his wife or any member of his own family about this incident with the Maoists until after he arrived in Australia.  The Tribunal asked the applicant what he told his wife when he returned to Kathmandu after the visit from Maoists and how he explained to her the need for the family to leave Nepal quickly.  In response, the applicant said that he just told his wife that they should visit Australia to go sightseeing.  When put to him that they had only just returned to Nepal to live there permanently after finishing work in [Country 1], the applicant said that his wife did think that the suggestion of visiting Australia at that time was odd but because they already had visas to visit Australia she agreed.

22. The Tribunal asked the applicant why he did not tell his wife about the incident with the Maoists when they were in Kathmandu before coming to Australia and that this was the reason why they had to leave the country quickly.  The Tribunal put to the applicant that it had difficulty accepting that he did not tell his wife or any member of his family what had happened until after coming to Australia. In response, the applicant said that he did not tell his wife or any member of his own family about the incident with the Maoists because he did not want to give any of them tension and, with respect to his wife and his mother, he said that women got emotional. 

23. The Tribunal put to the applicant that he would surely have been concerned that the Maoists could harm members of his own family when he was not going to meet the demand of paying money to them by [date] April 2015.  The Tribunal put to the applicant that for that reason he would surely have wanted to tell his family members straightaway what had happened and the Tribunal had difficulty accepting that he did not.  In response, the applicant said that he did worry about that but he thought that the Maoists would not harm ordinary [people] in the village.  The Tribunal finds none of the applicant’s explanations satisfactory.  The Tribunal does not believe that the applicant would be exhorting his wife to leave Nepal quickly for a visit to Australia and withhold from her what he claims is the true reason they had to leave, namely, that his life was in danger.  Similarly, the Tribunal does not believe the applicant would also withhold that information from his brothers.  The Tribunal does not accept he would do this believing Maoists might not harm them.

24. To the delegate, the applicant also related his account of Maoists coming to his family home in the local village in early 2015 demanding money from him. The delegate asked the applicant a number of times what the Maoists did after that in terms of locating or holding any interest in him. In response to those questions the applicant told the delegate that Maoists had never returned to find him nor made enquiries of members of his own family to locate him. In contrast to this evidence, to the Tribunal, the applicant said that after coming to Australia one of his brothers told him that people had approached him asking about the applicant, people the brother did not know and who the applicant asserted were the Maoists who had come and threatened him.

1. The Tribunal asked the applicant why he did not advance that evidence to the delegate, the applicant responding that his brother only told him about this approximately six or seven months after his arrival in Australia.  The Tribunal put to the applicant that his interview with the delegate was conducted on [date] September 2015 (the applicant having arrived in Australia on [date] March 2015).  The applicant said that he received this news from his brother after that time.  He added that his brother was approached by these people around the same time he conveyed that news to the applicant, the brother having made no mention of this in their previous contact. 

2. The Tribunal asked the applicant why Maoists would be making enquiries of him with his brother long after they had first come to the applicant and long after [date] April 2015 when the applicant was to pay the remainder of the amount they demanded from him.  In response, the applicant said that perhaps they thought that he would return to his village one day as he was rich.  The Tribunal is not persuaded by that response.  The applicant was in his local area for only a matter of days, two weeks by his estimation, when the Maoists came and threatened him.  If they really held that level of interest in him, such that they would be approaching him within a short period of his return to the local village, one could reasonably expect that they would maintain that level of interest after that, particularly from [date] April 2015, when the applicant was to pay a further amount to them.  Accordingly, his claim that some months after that the Maoists approached his brother about him does not bear the ring of truth.

   Conclusions on credibility

3. At the beginning of the hearing, the Tribunal put the applicant on notice that, although the delegate found his evidence about his difficulties with Maoists to be credible, it remained the Tribunal’s task to decide for itself whether or not he was relating a truthful account.  The Tribunal advised the applicant that this was a purpose of the questions it would be asking him.  Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false. 

4. Accordingly, the Tribunal disbelieves the applicant’s claims that he was approached, threatened and detained by Maoists at any time in his life in Nepal including the period before he went to live in [Country 1] and at any time after that until coming to Australia in early 2015.[5]  Because he is not a witness of truth, the Tribunal disbelieves the applicant’s claims that his father was an activist and member of the RPP, a leader of the village [committee] and that Maoists harmed and eventually killed his father.  Because he is not a witness of truth, the Tribunal also disbelieves the applicant’s claims about being a supporter of the RPP, donating money to that group and holding pro monarchist views and arguing with others about them.[6]  The Tribunal finds that it has no credible evidence about the applicant’s political views.

   [5] This includes disbelieving his evidence about people approaching his brother some months after he came to Australia enquiring about him.

   [6] The Tribunal similarly disbelieves his claims about supporting local works in the village and being involved in local projects as he claimed.

5. The Tribunal accepts that the applicant, after going to live and work in [Country 1], returned to Nepal on a number of occasions but the Tribunal has no credible evidence as to what he did and where he lived on those occasions.  Most importantly, there is no credible evidence before the Tribunal that the applicant or any member of his family suffered harm from Maoists or anybody else in Nepal.  There is no credible evidence that anyone in Nepal seeks to harm them.  There is no credible evidence before the Tribunal as to why the applicant, his wife and children left Nepal in early 2015 to come to Australia and why they do not wish to return to Nepal.  The Tribunal accepts that the applicant will return to Nepal as someone who has lived and worked in another country.[7]  However, the applicant does not claim to fear harm on that ground on its own.

   [7] The applicant submitted documents to the department as evidence of his life and employment in [Country 1] (see generally folios 156 – 167 of the department file).

6. Rather, the applicant claims that he was of interest to Maoists only partly on that ground and the Tribunal has disbelieved the applicant’s claims about Maoists harming and holding any interest in him.  There is otherwise no credible evidence before the Tribunal that any person or group in Nepal holds adverse interest in the applicant because he has worked in [Country 1] (and will receive a pension from that employment).  The applicant claimed that this meant he was ‘rich’ in Nepal and would be considered as such by other Nepalis. However, beyond his claims that Maoists took an interest in him for this reason, claims the Tribunal finds to be not credible, he has not otherwise established any basis on which the Tribunal could find there is a real chance he will suffer serious harm for that reason.  The Tribunal finds that risk to be remote.[8]

   [8] In his written statement the applicant also said that he was a Hindu from the Magar caste but he did not claim protection on these grounds.

7. In his evidence to the department and also to the Tribunal, the applicant made general claims about law enforcement being ineffective and Maoists still continuing to commit abuses but these claims were all made in the context of his account of Maoists harming him in Nepal, an account the Tribunal finds not credible.  The applicant’s wife and children did not make their own claims for protection. At the Tribunal hearing, the applicant’s wife broadly stated that her husband was at risk of harm from Maoists based on the events the applicant claims occurred in Nepal.  For the reasons given above, the Tribunal finds the applicant’s evidence about those matters to be not credible and statements of the applicant’s wife do not overcome the Tribunal’s concerns.

8. The applicant said that with respect to his children he was concerned that they did not speak Nepali well and they could suffer harm on that basis.[9] Although he makes those claims, the applicant was willing to take his children back to Nepal to live in early 2015 after he finished his work in [Country 1]. There is no credible evidence that his children suffered harm in that period and they will be in the custody of the applicant and his wife on return to Nepal.  For the reasons given above, the risk of the applicant suffering serious harm in Nepal is remote and the Tribunal finds that the risk of his wife and children suffering serious harm is also remote.[10]

   [9] The applicant speculated that this harm could be bullying, being the victim of human trafficking and general crime.

   [10] For the sake of completeness, the Tribunal records that at folio 208 of the department file is a certificate purportedly issued under s 438 of the Migration Act regarding disclosure of certain information on the department file (at folios 176 – 181). The information relates to applications made by the applicant and his wife to visit [Country 2], a matter the delegate discussed with the applicant at the interview. The Tribunal did not disclose this information nor discuss it with the applicant and his wife because it is not relevant to the grounds on which this review has been determined. Applications to visit [Country 2] have no relevance to the reasons the Tribunal finds that the applicant is not a witness of truth and the reasons why the Tribunal finds that the applicants' fear of persecution is not well founded.

9. For the reasons given above, the Tribunal finds that there is not a real chance that the applicants will suffer serious harm in Nepal.  They do not hold a well-founded fear of persecution based on a convention ground.

   Complementary Protection 

10. With respect to the complementary protection criterion, for the same reasons the Tribunal finds that there is not a real chance that the applicants will suffer serious harm in Nepal, it also finds that there is not a real risk that they will suffer significant harm.  The Tribunal repeats its finding that the applicant is not a witness of truth and the account of events on which his protection claims are based is false. There is no credible evidence that the applicants suffered harm in Nepal and there is no credible evidence that anyone in Nepal    seeks to harm them. There is no credible evidence as to why the applicants left Nepal and why they do not want to return there.  In those circumstances, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to the receiving country, Nepal, there is a real risk that they will suffer significant harm.

    CONCLUSIONS

11. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

12. The Tribunal affirms the decision not to grant the applicants protection visas.

Paul Millar