1514915 (Refugee)

[2017] AATA 2572

1514915 (Refugee) [2017] AATA 2572 (26 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514915

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Paul Millar

DATE:26 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 26 October 2017 at 11:08am

CATCHWORDS

Refugee – Protection visa – Nepal – Political opinion – Rastriya Prajantantra Party – Victim of violence – Fear of Maoists – Witness credibility

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 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] October 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of Nepal, applied for the visa [in] December 2014.[1] The applicant appeared at a hearing before the Tribunal on 20 October 2017 to give evidence and present arguments in relation to the issues arising in the review.  The hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

   [1] The Tribunal’s finding on citizenship is based the applicant’s Nepal passport which he produced at the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

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 21 April 2016 to the extent that it is cited further below in this decision.

   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 the Tribunal, the applicant claims protection on the ground that Maoists in Nepal will harm him because of his support for the Rastriya Prajatantra Party (‘the RPP’).[3]  The Tribunal holds the following concerns about his credibility.

   Credibility concerns

   Omission of claims about [relative] from protection visa application forms

   [3] The applicant's evidence to the department and the Tribunal comprises the contents of the protection visa application forms; his written statement submitted to the Tribunal and his evidence at the Tribunal hearing. The applicant did not attend an interview with the delegate.

9. To the Tribunal, the applicant said that his [relative] was a member of the RPP.  For this party, the applicant’s [relative] would, at gatherings in the village, encourage people to support the party.  He would also do this at home with family and friends who came there.  Because of these activities, Maoists would come to the family home and threaten the applicant’s [relative], warning him not to help the RPP.  The applicant’s [relative], however, continued his activities and, as a result, Maoists took him from the family home.  The applicant found his dead body the following day hanging from a tree and he understood that the Maoists had killed his [relative]. 

10. The applicant twice approached the district police to complain about this but they did not take any action. Approximately two years after his [relative] was killed, the applicant became a member of the RPP and began undertaking activities for that party.  He did this because he wanted justice for what happened to his [relative] and, to that point, had not received any.  Like his [relative], the applicant would also go around villages in the district telling people to join the party. In addition, the applicant would also talk about how the Maoists took and killed his [relative] and that he did not get justice for that.

11. Because of this, whenever they saw him, Maoists would threaten the applicant not to undertake these activities and not talk about what happened to his [relative].  The applicant continued these same activities and, approximately three years after joining the party, while on the stage at a concert held for the party and while again talking about what happened to his [relative], a group of Maoists attacked him.   The Tribunal understood from this evidence that a significant factor in the applicant’s decision to join the RPP, the activities he undertook for the party and the harm he encountered from Maoists, was his [relative]’s own support for that party which led to Maoists killing him and the failure of the authorities to provide justice to the applicant in response.

12. The Tribunal was therefore concerned that in his protection visa application forms, in particular, in that part of the application forms where asked to specify the reasons for claiming protection, the applicant made no mention of these important claims.  In the application forms the applicant declared having an interest in the monarchy ‘flowing from the life-long links of [his] family tradition, religion and political opinion’.  He said that his own political involvement was based on his ‘genuine belief in democracy [and] the role of the Monarchy as a positive force for the betterment of the Nepalese people’.  He stated that he would tell the villagers to support the party and monarchy, to not support the Maoists and to defend and rebuild their human rights and political freedom.  For this, the Maoists argued with and physically attacked him.

13. The applicant made no mention whatsoever about his [relative]’s involvement, the harm his [relative] suffered because of that and the role his [relative]’s death played in his own decision to support the party, what he told the people to whom he spoke about the party and why the Maoists harmed him.  When the Tribunal put this discrepancy to him, the applicant said that his [relative] had helped the Nepal army to fight Maoists.  He then said that perhaps he did not remember some of the things that happened in his life. 

14. None of those responses satisfactorily explain the omission of important claims from the applicant’s protection visa application forms.  While the Tribunal would not expect the applicant to set out in full detail all of his claims about his [relative]’s political activities in his application forms, given their significance to his account, he can be reasonably expected to mention, even if only briefly, that his [relative] belonged to and undertook activities for that party, that Maoists killed him for that reason and that the authorities failed to respond.  The applicant has not done so and this reflects poorly on his credibility.

    Inconsistent evidence about the manner in which the applicant was attacked by Maoists

15. In his protection visa application forms, the applicant stated that because of his political activities, as he described them in the forms, Maoists beat him ‘mercilessly’ which left him with [specific injuries] ‘as a result of [the method used to assault him]’.  The Tribunal questioned the applicant closely about the manner in which he was attacked and beaten by the Maoists on this occasion, this being, according to his evidence to the department and Tribunal, the only occasion on which he was physically attacked by Maoists. 

16. To the Tribunal, the applicant said that one of the Maoists ran onto the stage, took him by [an area of his body] and took him off the stage.  At that point another [number of] Maoists appeared and the applicant was hit with [weapons], kicked and one man [detail of assault].  The applicant said that after the attack friends took him to a hospital where he remained for [number] days.  When asked what injuries he had, the applicant mentioned [specific injuries].  When asked what caused that pain in that part of his body, he said it was from being hit with a [specific weapon].

17. The applicant made no mention in his evidence to the Tribunal of the specific claim made in his protection visa application forms [of the details of the assault that caused his specific injuries]. The Tribunal put this to the applicant and, in response, he said that he was held by one of the Maoists as he had described in his protection visa application forms but he did not mention it to the Tribunal perhaps because he had forgotten it.  If the applicant was relating a truthful account he would not forget to advance this specific claim to the Tribunal when questioned closely about the manner in which he was attacked by Maoists.  The fact he did not advance this claim to the Tribunal reflected poorly on his credibility.

    Inconsistent evidence about the timing of the attack and the period in which the applicant lived away from his native village before leaving Nepal

18. After he gave evidence about being attacked at the concert by Maoists, the Tribunal asked the applicant what he did once he left the hospital where he had been receiving treatment.  In response, the applicant said that he went to the police to complain but they did not take any action. When asked what he did then, the applicant said that he returned home and tried to forget about things. At that time the applicant was employed working on the family farm but also operating a [business] with another person which was located in the central area of his district [travelling time] from his village.  He said that sometimes he would go to that place to operate the business and sometimes the other person did that.

19. When asked if he returned to working at the [business] after he came out of hospital, the applicant said that he did not. He just stayed in the house trying to get better. In this period while he was recovering, a period of one month, Maoists approached him a few times saying that they had killed his [relative], they would therefore kill him and he should not help the RPP.  Because of this, the applicant thought that he could not safely stay in his village, his mother feared for his safety and he went into hiding.  He said that for a period of approximately five or six years, from the time he stopped living in his village and up until the time he left Nepal, he stayed for varying periods in Kathmandu, Pokhara and other places for his safety.  In these various locations he met people from his village who told him not to go back there. 

20. In this period, when on the road, he would also encounter Maoists who recognised him for his work for the RPP and they threatened him.  Approximately six or seven months before he left Nepal, the applicant located an agent who was able to arrange for him to obtain a visa to come to Australia.  The Tribunal understood from the applicant’s evidence to that point in the hearing that he lived in his native village up until the time that he was attacked by Maoists at a concert and that, for a period of some five or six years, he lived in different places in Nepal in hiding before leaving the country (in June 2013).

21. The Tribunal put to the applicant that in his protection visa application forms in that part of those forms where required to give details of where he lived in Nepal, he stated that he lived in his native village from the time he was born until March 2013.  He stated that from March 2013 until June 2013 when he left Nepal he lived in Kathmandu.  The Tribunal put to the applicant that this evidence was inconsistent with his evidence to the Tribunal that for a much longer period of time he had lived away from his native village.

22. In response, the applicant introduced new evidence saying that once he joined the RPP he stopped living in his village and instead stayed in the main centre of the district in which his native village was located. This was because he was on high alert from being threatened by Maoists and from that time he would only visit his village.  When asked why it was necessary to actually stop living with his mother in the native village when he joined the party, he said that it was not secure there.  He said that after he was attacked by Maoists at the concert, he went back to his village once but his mother was afraid for his safety so he left and never returned again.  At that point, he then, for the period of five or six years, lived in different places. 

23. The Tribunal put to the applicant that it understood his initial evidence to be that he did not stop living in his native village until after he was attacked by Maoists at the concert which he had initially said occurred some three years after he joined the RPP.  In response, the applicant said that once he joined the party he went to live in the main centre of the district and only sometimes returned to his native village with friends.  The Tribunal asked the applicant why, in his protection visa application forms, he did not state or indicate what he now claims to be the correct time he stopped living in his village and that for the lengthy period of five or six years he was living in different places in Nepal.

24. In response, the applicant said that it was perhaps his mistake or weakness and he could not recall writing things down or repeating things.  If the applicant was relating a truthful account, he would not forget to state or indicate in his protection visa application forms that he ceased living in his village a number of years before he left Nepal and not just three months as he indicated in the application.  The Tribunal was also concerned by and unimpressed with his introduction of new evidence as to when he stopped living in his village once confronted with the evidence in his protection visa application forms (changing from ceasing to live there from the time of the attack to ceasing to live there from the time he joined the RPP).  Even if the Tribunal was to overlook that change of account in his evidence to the Tribunal, his failure to specify in his protection visa application forms what he now claims is the correct time from which he stopped living in his village is not credible.

25. The Tribunal then put to the applicant that according to his written statement, he was attacked by Maoists at the concert (in December 2012) approximately six months before he left Nepal (in mid-June 2013).  The Tribunal put to the applicant that this was inconsistent with his evidence to the Tribunal that there was a period of some five or six years between the attack at the concert and his departure from Nepal.  In response, the applicant said that the attack was in 2069 (in the Nepali calendar) and he left Nepal in 2070.  The Tribunal again put to the applicant that his account in his written statement and his account to the Tribunal about the period of time between being attacked and leaving Nepal were inconsistent.

26. In response, the applicant again repeated the account he had earlier given about hiding in different places for five or six years after being attacked. He then said that in 2069 or 2070 he totally abandoned his village.  As none of those responses dealt with the concern being put to him, the Tribunal again asked him to comment on this discrepancy.  Again, the applicant did not directly respond. He said he went into hiding from the time he was being threatened by Maoists and that was in 2066 or 2067.  None of those responses explain the significant discrepancy between his claim in his statement that he left Nepal approximately six months after being attacked by Maoists and his evidence to the Tribunal that, in fact, he left Nepal some five or six years after this attack.   

    Inaction and delay in applying for protection

27. At the Tribunal hearing, the applicant confirmed the evidence he gave in his written statement that the reason he applied for protection in December 2014 was because, in November 2014, the woman with whom he travelled from Nepal to Australia said she would no longer help him and he would therefore not have a visa to remain in Australia.  He told the Tribunal that, prior to that time, he had made no enquiries about how he could remain in Australia to be safe from the harm he claims to fear in Nepal.  It was only once this woman warned him that she would not help him that he then began making inquiries and, one month later, applied for protection.  The Tribunal was concerned that the applicant would wait for almost 18 months after arriving in Australia to begin making inquiries about how he could remain here to be safe from harm he claims to fear in Nepal and not actually apply for protection until December 2014. 

28. The Tribunal had difficulty accepting that someone in the applicant’s claimed circumstances would behave in that fashion.  In this respect, the applicant told the Tribunal that he left Nepal to be safe from Maoists.  He said that in the period of five or six years he lived in hiding in various locations before leaving Nepal he was approached by Maoists on the road who actually recognised him as an RPP member and threatened him.  Indeed, when asked how Maoists in other places in Nepal where he stayed would know about him and his work for the RPP, he said that the Maoists have a strong network and people from his village came to places like Kathmandu and Pokhara where he was staying. In this evidence, the applicant was strongly indicating that there was, in effect, no place in Nepal he could live and be safe from Maoists.  In addition, the applicant also told the Tribunal that approximately six or seven months after he arrived in Australia he learned that Maoists had gone to his family home looking for him and his mother told him not to come back to Nepal.

1. The Tribunal put to the applicant that, in those claimed circumstances, it had difficulty accepting that for almost 18 months after he arrived in Australia he chose to make no enquiries about seeking protection.  In response, the applicant said that the woman with whom he travelled to Australia told him that while they or she studied he would eventually get permanent residence, but, at a later stage, she asked him for money.  Because he refused, she said that she would have him sent back to Nepal and so he began making enquiries about protection. 

2. The Tribunal put to the applicant that it had difficulty accepting that someone in his claimed circumstances would be content to rely on the representations of this person to the effect that he would eventually be able to stay here permanently. In response, the applicant said that this woman told him not to worry; that they would get permanent residence through study and he just trusted her.  The Tribunal is not persuaded by those responses and, if the applicant was genuinely in fear of harm in Nepal, he would not have behaved as he did and make no effort to seek protection until almost eighteen months after he arrived in Australia. His inaction and the delay on his part in doing so only further reflected the lack of credibility of his claims.

   Conclusions on credibility

3. 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.  The Tribunal therefore disbelieves the applicant’s claims that his [relative] was involved with the RPP; that his [relative] in any way assisted the Nepal army against the Maoists; that his [relative] was threatened and then killed by Maoists; that the applicant joined and undertook activities for the RPP; that Maoists approached, threatened and physically attacked him; that the applicant lived in different locations in Nepal to hide from Maoists; that he left Nepal due to a fear of harm from Maoists and that Maoists ever went to his home in his native village after he came to Australia (or at any time).

4. There is no credible evidence before the Tribunal that the applicant suffered harm in Nepal and no credible evidence that any group or person in Nepal wishes to harm him.  There is no credible evidence before the Tribunal as to why the applicant left Nepal and why he does not want to return there.  The sole ground on which he seeks protection is his claimed fear of Maoists based on events he claims occurred in Nepal, claims the Tribunal disbelieves. 

5. The applicant told the Tribunal that a few days ago in elections in his local area a Maoist had been elected as the chairperson.  The Tribunal put to the applicant that, according to country information, since 2008 Maoists had been participating in elections and holding positions of government.[4]  The applicant, in response, said that this was correct but there was no law and order in Nepal so those who had power could do anything they wanted.  The applicant made these claims in the context of his overall claims that Maoists in Nepal wish to harm him because of his activities for the RPP.

   [4] See DFAT Country Information Report Nepal 21 April 2016 2.3 – 2.5.

6. For the reasons given above, the Tribunal disbelieves the applicant’s claims about that. There is no credible evidence that the applicant suffered harm in Nepal including in the period since 2008 when Maoists have held public office. Accordingly, his claim that a Maoist has been elected as chairperson in his local area does not demonstrate that there is a real chance the applicant will suffer serious harm. For all of the reasons given above, the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in Nepal. He does not hold a well-founded fear of persecution within the meaning of s 5J(1) of the Act.

7. For the sake of completeness, the Tribunal had access to the department file relating to the application for a student visa made by the applicant and the woman with whom he travelled to Australia.  The applicant told the Tribunal that he did not know what information was contained in this application only that representations in it that he and this woman were married were false.  The Tribunal notes that some information in the application related to the applicant’s employment appeared to be inconsistent with his evidence about that to the Tribunal, but, the Tribunal does not regard this as adverse to him.

8. The Tribunal is willing to accept the applicant’s claims, in effect, that the application for the student visa and whatever evidence was lodged in support of it is false and concocted by the agent who prepared it.  However, the fact that the applicant resorted to those means to be able to leave Nepal does not demonstrate that the reasons he gives for wanting to leave that country are true. For the reasons given above, the Tribunal finds that the applicant’s claims about leaving Nepal in fear of harm from Maoists are all false.  There is no credible evidence before the Tribunal as to why the applicant left Nepal and why he does not want to return there.

   Complementary protection

9. With respect to the complementary protection criterion, 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. For the same reasons the Tribunal finds that there is not a real chance the applicant will suffer serious harm in Nepal it also finds that there is not a real risk that he will suffer significant harm there. Accordingly, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to the receiving country, Nepal, there is a real risk that the applicant will suffer significant harm.

   CONCLUSIONS

10. 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 s.36(2)(a).

11. 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).

12. 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

13. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Paul Millar
    Member