1513924 (Refugee)

[2017] AATA 2963

1513924 (Refugee) [2017] AATA 2963 (23 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513924

COUNTRY OF REFERENCE:                  Nepal

MEMBER:David McCulloch

DATE:23 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 23 November 2017 at 4:11pm

CATCHWORDS
Refugee – Protection visa – Nepal – Overstayed student and bridging visas – Applicant failed to attend the hearing – Medical condition – Representative withdrew their representation for the applicant – Imputed political opinion – Threatened by a political ethnic group – No real chance of serious or significant 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, 426A, 499
Migration Regulations 1994 Schedule 2

CASES

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] April 2014 and the delegate refused to grant the visa [in] October 2015.

3. A hearing of the Tribunal was scheduled for 11 July 2017. On 10 July 2017, given that the applicant had not returned the form indicating whether he would be attending the hearing, the Tribunal contacted the applicant’s representative to ask whether the applicant would be attending the hearing. The law firm concerned responded to the Tribunal indicating that the lawyer who was the applicant’s representative had left the firm. That person had left advice that the applicant had left the country. Although the firm had forwarded the notification of the hearing to the applicant by email, they did not follow up this request. The applicant only opened the email on 7 July 2017. On 10 July 2017, another lawyer from the same firm was appointed as the applicant’s representative. A request for an adjournment of the hearing was made. The Tribunal indicated to the representative that it intended to proceed with the hearing the following day in which it would discuss further the request for the adjournment of the substantive consideration of the applicant’s claims.

4. The applicant did not appear at the hearing that took place on 11 July 2017. The applicant’s representative, however, was present. The applicant’s representative indicated that it was not possible for the applicant to attend the hearing, because he was looking after a friend and was in [Town 1], which was [distance] from [a location], where the hearing was being conducted by a videolink with the Tribunal Member in Sydney.  The Tribunal indicated to the representative its concern as to the lack of the applicant’s attendance at the hearing, and the late request for the adjournment, coming only following an inquiry by the Tribunal. 

5. The Tribunal adjourned the hearing to a later date. The hearing was subsequently rescheduled for 9 August 2017. On the 7 August 2017, the applicant’s representative contacted the Tribunal indicating that, since receiving notification of the adjourned hearing, numerous attempts had been made to contact the applicant, but with no success. Evidence was provided of numerous emails and phone calls to the applicant without a response. The representative indicated that they wished to withdraw their representation for the applicant in the matter.

6. On 8 August 2017 at 7:24pm, the applicant himself sent an email to the Tribunal indicating that his health was getting worse and that he requested a few months extension for the hearing. He indicated that his doctor states that he needs complete bed rest. Provided was a Medical Certificate from [a doctor] dated [August] 2017 indicating that the applicant is suffering from ‘sever (sic) anxiety and depression for a while’ and that he is unable to attend the Tribunal on 9 August 2017.

7. The Tribunal reschedule the hearing to be held on 22 November 2017. On 12 September 2017, the Tribunal wrote to the applicant as follows:

   I am writing in relation to the application for review made by you in respect of a
   decision to refuse to grant a Protection visa.

   The Tribunal has not received a response to you from its letter dated 10 August 2017
   requesting, by 4 September 2017, medical evidence supporting your request for a
   three month extension, based on suffering from depression and anxiety.

   As it is, the Tribunal has rescheduled the hearing until 22 November 2017, which is
   longer than the three months requested. You will receive separate notification of this
   hearing.

   In the event that you do not attend this hearing due to illness, the Tribunal requests
   that you provide, in advance of the hearing, a detailed medical report, from either your
   general practitioner, a clinical psychologist or psychiatrist, setting out the history and
   nature of the conditions that you are suffering from, details of past and ongoing
   treatment, and medications that you have been prescribed. The report should detail
   how the conditions from which you are suffering impact upon your ability to give
   evidence to the Tribunal and the prognosis in relation to your conditions, with an
   assessment as to likely timeframe in which you will be able to give evidence to the
   Tribunal. The Tribunal would also request an opinion in terms of your capacity to give
   evidence from your home by telephone.

   In the event that a report covering these issues is not provided as justifying nonattendance
   at the scheduled hearing, the Tribunal may proceeded to make a decision on the material before it, without giving you a further opportunity for a hearing.

   If the information is in a language other than English, it must be accompanied by an
   English translation from an accredited translator.

8. The applicant did not respond to this letter or provide a response to the invitation to attend the Tribunal on 22 November 2017, or attend at the time and place requested, or make any contact with the Tribunal to inform it of any change to his contact details or any reason why he was unable to attend.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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).

11. 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.

12. 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’).

13. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Report – Nepal, 21 April 2016.

14. The issue in this case is whether the Tribunal can be satisfied as to the truth of the applicant’s claims and whether he meets the criteria for protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and claims

15. The decision of the delegate, a copy of which the applicant has provided to the Tribunal, indicates the following. The applicant arrived in Australia [in] September 2008 on a [Student] visa. This visa was cancelled [in] April 2010. The applicant was granted Bridging visas to enable him to make arrangements to depart Australia. [In] April 2010, the applicant provided evidence of a flight booking departing Australia [in] May 2010. The applicant was requested to present himself to the Department [in] April 2010 with evidence that the ticket had been paid for. The applicant subsequently became an unlawful noncitizen when his Bridging visa expired [in] April 2010. [In] May 2010, the applicant informed the Department that he did not have enough money for his ticket and the applicant was granted another Bridging visa on departure grounds. The applicant became unlawful noncitizen when he failed to depart Australia after his Bridging visa ceased [in] May 2010. He continued to live in the community as an unlawful noncitizen for approximately four years.

16. The application for the Protection visa was lodged [in] April 2014. The applicant informed the Department that he did not previously depart Australia because he had been depressed.

17. The application forms for the Protection visa indicate the following. The applicant was born on [date] in [[District 1]], Nepal.  He is of the Hindu religion. The applicant has never been married. The applicant lists his parents and [siblings] living in Nepal. The applicant indicates that he is in contact with relatives in his home country by phone and Internet. The applicant lists one address in [[District 1]] from birth until September 2008. From [date] until [date] for the applicant attended a boarding high school. From [date] until [date] the applicant undertook 10+2 level at secondary school. The applicant indicates no employment in the Nepal.

18. The applicant provided a Statutory Declaration setting out his claims which provided as follows:

    My name is [name]. I was born on [date].

    I have been living in this country for more than five years. I came to Australia on a student visa and my student visa got cancelled [in] May 2009 for not achieving satisfactory course attendance.

    I was unable to attend classes due to suffering from depression and fear of being returned home and being harmed.

    I have been living in Australia for my own personal reasons, the reason being that I am protecting myself.

    I have been threatened to be beaten to death from a political group. This political group originated in Nepal. They are a group of ethnic young people who wants so much from the Government and full support from the people and they call themselves "Limbuwan."

    Most of these people are not even from my town. They entered a town and established a headquarters, which we young people were completely against their approach. They held many strikes in order to get the Government's attention which directly affected our daily life.

    So we established an "Anti-Limbuwan" group to fight against them. We were first a bunch of young people who were fighting for our right, but these people were really strong and armed. So many of our members were beaten up badly. A lot of the members of our group had fled the country and went overseas for protection.

    I was lucky to escape their torture. I hid in my city, and finally I got my visa to Australia.

    Now to my knowledge this ethnic group has become really powerful. They are demanding the government provide them with their own state and government.

    I have come to hear that they are still looking for me and few of my friends. If I go back they will torture me and kill me.

    Since I received this news, I have become very fearful of returning. Since then this news has been bothering me for a long time. I was not able to concentrate on my study and I did not want to return home. I don't miss my country, but I miss my family. So then I preferred to live as much as I can, no matter what problems I go through. I really need help from the Australian government to protect me from the Limbuwan group.

19. The applicant provided to the Department, following the interview with the delegate, the following documents in support of his claims:

    ·Document in English on the letterhead of Communist Party of Nepal (Unified Marxist – Leninist), District Office, [District 1], dated [September] 2015.  The letter condemns the fact that the applicant, who is a member of the party, has faced problems and injuries. It is requested that this intimidation will not be tolerated and the incident is recorded as a threat to the country and its citizens.

    ·Document in English on letterhead of [a] Village Development Committee Office, dated [September] 2015, referring to an incident involving the applicant (with no details) and requesting the police to investigate and make sure that the individuals are brought to justice. It indicates that the applicant and his family are held in high esteem in the community. It indicates the applicant has undergone a frightening experience at the hands of Limbuwans who make sure that ideologies are known and will create dangers to individuals who are against them.

    INDEPENDENT INFORMATION

20. The DFAT Country Report – Nepal, 21 April 2016 provides as follows:

    Political actors (from all major political parties and smaller identity-based groups) are key elements of Nepali society. Political affiliation, both at an organisational and individual level, is an important aspect of identity. This was a cause of instability during the conflict and in the years immediately following. Political youth wings, bandhs (strikes), demands for donations from local authorities and the private sector, and the obstruction of tender-bidding processes in line with political interests all contributed to this instability.

    A diverse and competitive array of political parties operates in Nepal, though the system has faced considerable instability in recent years. Unlike the 1990 constitution, the 2015 Constitution has no limitation on parties formed along ethnic lines. Prior to the 2013 elections, the political environment suffered instability, including some violence by supporters linked to the main Maoist party on members of other parties, and on people who allegedly informed on the Maoists during the civil war. Supporters linked to the other leading parties were also accused of attacking supporters of the Maoists during 2013.

    At the time of publication, the situation has significantly changed. Nepal’s lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected.

    DFAT assesses that while violence has occurred in the aftermath of the release of the new Constitution and Maoist/and disillusioned splinter groups continue to threaten a return to bandhs and or violence, the overall risk [based on political opinion, actual or imputed] is low.[1]

    Limbus

    [1] DFAT Country Report – Nepal, 21 April 2016, para 2.36-3.29

21. DFAT Country Report – Nepal, 21 April 2016 provides as follows:

    Limbus are the descendants of Tibetan migrants who came to Nepal centuries ago. Limbus mainly reside in the regions of Taplejung, Khotang and the Arun Valley located in the extreme east of Nepal. Limbus speak a distinct language based on a mixture of the Devenagri and Tibetan alphabets. The Limbuwan movement which advocates for autonomy for the Limbu. DFAT is aware of reports of violence against Limbus but there are also allegations of Limbus violence against other community groups.[2]

    [2] DFAT Country Report – Nepal, 21 April 2016, para 3.9

22. According to Wikipedia, today, Limbuwan are found in the districts of Taplejung, Panchthar, Ilam, Jhapa, Terhathum, Sankhuwasabha, Dhankuta, Sunsari and Morang.[3]

    [3] and assessment

23. By letter dated 13 September 2017, the Tribunal invited the applicant to appear before it on 22 November 2017 to give evidence and present arguments. That letter was sent to the applicant’s last identified address for correspondence and noted that, if the applicant did not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear The applicant did not respond to the invitation or make any contact with the Tribunal in respect of his scheduled appearance, or the review application more generally.  In addition, the applicant did not respond to the letters sent to him by the Tribunal on 10 August 2017 and 12 September 2017, as indicated above.

24. Based on the evidence before it, the Tribunal finds that the hearing invitation was sent to the last address for service provided in connection with the review and, in the circumstances, pursuant to section 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

25. The mere fact that a person claims fear of persecution or harm for a particular reason does not establish either the genuineness of the asserted fear or that it has a real chance or real risk or arising, 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).

26. The Tribunal is satisfied that the applicant is a citizen of Nepal and accordingly his claims will be assessed against Nepal.

27. The applicant’s written claims are not overly detailed, and invite many questions, as does the evidence of the applicant provided in the interview with the delegate of the Minister. In the absence of the applicant appearing at any of the three scheduled hearings, the Tribunal has been unable to explore or test the claims. In the absence of the Tribunal being able to explore the claims, the Tribunal is not satisfied as to any substantive aspect of the applicant’s claims.

1. The Tribunal is not satisfied that the applicant has had any political involvement in Nepal, including being involved in a group opposed to Limbuwans.  The Tribunal is not satisfied that the applicant and his colleagues were threatened and had their office ransacked by Limbuwans, as claimed by the applicant in the interview with the delegate. The Tribunal is not satisfied that Limbuwans subsequently threatened or harmed the applicant or his colleagues or that they have any intention to threaten or harm the applicant should he return to Nepal. The Tribunal is not satisfied that Limbuwans have been looking for the applicant seeking to harm him, or requesting that they join their party, either before or after the applicant came to Australia.  The Tribunal is not satisfied that the applicant has or would face a real chance of serious or significant harm based on any other political activity.

2. The Tribunal has taken into account the supporting statements provided by the Tribunal. The provision of those supporting statements, in the absence of the applicant appearing before the Tribunal to answer questions in relation to his claims, do not satisfy the Tribunal as to the truth of the applicant’s claims.

3. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm on return to Nepal, or any of the reasons claimed, or for any other reasons.

4. In summary, in relation to the Refugees Convention criterion, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason, for any of the reasons claimed, or for any other reason.

5. In summary, in relation to the complementary protection criterion, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm, for any of the reasons claimed, or for any other reasons.

6. 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).

7. 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).

8. 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

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

   David McCulloch
   Member