1514938 (Refugee)

[2017] AATA 2735

1514938 (Refugee) [2017] AATA 2735 (9 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514938

COUNTRY OF REFERENCE:                  Nepal

MEMBER:David McCulloch

DATE:9 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 09 November 2017 at 10:11am

CATCHWORDS
Refugee – Protection visa – Nepal – Maoists – Witness credibility –Significant discrepancies in written and verbal claims – Applicant untruthful – Delay seeking protection

LEGISLATION
Migration Act 1958, ss 36(2)(a), (aa), (b), or (c), 65, 499
Migration Regulations 1994, Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA(1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

3. The applicant appeared before the Tribunal on 2 November 2017 to give evidence and present arguments. The Tribunal was assisted with the use of an interpreter in the Nepali language.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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).

6. 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.

7. 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’).

8. 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.

9. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background and claims

10. The decision of the delegate, a copy of which has been provided by the applicant to the Tribunal, provides the following history of the applicant’s migration and other history:

    [date]/10/2008 Commenced [Visa 1] application offshore as dependent on Spouse (so claimed.)

    [date]/12/2008 [Visa 1] granted

    [date]/01/2009 Entered Australia on Nepal issue passport number [deleted] evidenced with [Visa 1], in effect till [date]/05/2011— Immigration Cleared

    [date]/9/2010   Departed Australia without Spouse (so claimed); Re-entered Nepal;

    [date]/11/2010 Re-entered Australia

    [date]/03/2011 Commenced [Visa 2] application as dependent on Spouse (so claimed).

    [date]/05/2011 [Visa 2] granted, in effect till [date]/03/2013

    [date]/01/2012 Divorce Registration Certificate issued, Kathmandu

    [date]/03/2012 Commenced [Visa 3] application as Main Applicant (Divorced);

    [date]/03/2012 Bridging Visa WA-010 granted, in effect till [date]/02/2013

    [date]/08/2012 [Visa 3] Refused

    [date]/09/2012 Review Commenced at MRT

    [date]/11/2012 Departed Australia for Nepal

    [date]/2/2013   Re-entered Australia

    [date]/2/2013   Bridging Visa WA-010 granted, in effect till [date]/09/2013

    [date]/09/2013 Bridging Visa WB-020 granted, in effect till [date]/10/2013

    [date]/9/2013   Departed Australia for Nepal

    26/09/2013     MRT Outcome — Refusal Affirmed

    [date]/10/2013 Re-entered Australia

    [date]/10/2013 Federal Court Appeal

    [date]/10/2014 Federal Court Outcome — Minister Win

    [date]/10/2013 Bridging Visa WA-010 granted, in effect till [date]/11/2014

    [date]/11/2014 Commenced Permanent Protection (XA 866) visa application

    [date]/11/2014 Bridging Visa WC-030 granted, in effect till [date]/11/2014

    [date]/11/2014 Bridging Visa WC-030 granted, in effect till [date]/04/2015

    [date]/04/2015 Bridging Visa WC-030 granted, associated with PV application

11. The application forms for the Protection visa indicate the following in relation to the applicant. The applicant was born on [date] in Rupandehi, Butwal, Nepal.  The applicant is Hindu. The applicant reads, writes and speaks Neplai and English.  The applicant was divorced in [city] [in] January 2012. The applicant lists one address lived at in Rupandehi, Butwal from birth until January 2009.  The applicant completed [number] years of education ending in June [year]. In [year] the applicant completed a [course]. The applicant lists his occupation or profession before coming to Australia as ‘business’;  however, the applicant provides no details of any past employment in Nepal. The applicant indicates that he has no close relatives who are not in Australia at the time of the application.

12. The applicant indicates that he left his country because of social race, religion, opinion and political situation. The applicant refers to the civil war with the Maoists when he left Nepal. He indicates that his family were harmed by the Maoists.  His [sibling] was taken and killed by them. They were trying to take the applicant. All the applicant’s money and property was taken by the Maoists. The applicant tried to escape from his country. The applicant indicates that, on his three trips back to Nepal from Australia, he got into trouble with society and political leaders. The applicant was asked for money, which he did not give, and he was threatened with being killed, as a result of which the applicant gave them what he had. On the last visit, they tried to kill the applicant and he was in hospital for [number] weeks. The applicant was in a motorbike accident. People tried to break the applicant’s bike with a truck while he was on his bike.  Since then, he has not returned to his country. The applicant indicates that he will be harmed by the Maoists.  The applicant indicates that he would complain to police but they would not listen. They took the applicant’s whole property.

13. The applicant refers to being divorced by his wife. He indicates that he will suffer from society because of this situation.

14. The applicant provided a Divorce Registration Certificate dated [in] January 2012 concerning the applicant and [name]. The applicant provided a letter from [a] Hospital and [a] College dated [in] May 2015 indicating that the applicant was in a motorbike accident [in] January 2013 and he was in treatment in the hospital.

    INDEPENDENT INFORMATION

    Political situation and political violence

15. The following information is provided from a Background Paper – Nepal: Maoists in Nepal, prepared by the Country Advice section of the Refugee Review Tribunal, issued 7 June 2013 and reviewed in December 2013:

    Violence and intimidation remain features of Nepal’s political landscape; though no longer on the scale that it was prior to the 2008 constituent assembly elections, or during the war.[1] Members of the UCPN-M [Unified Communist Party of Nepal – Maoist] and associated groups have contributed to this culture of violence; the ICG posits the argument that as cadres of a Maoist revolutionary party, some members of the UCPN-M continue to believe that violence can be a legitimate political tool, particularly as a means to “resist oppression”.[2] Another contributing factor to Nepal’s violent political culture is the ongoing impunity enjoyed by cadres of numerous political parties.[3]

    Prachanda and other leaders of the UCPN-M have stated that political violence needs to be eliminated; indeed following the pre-election violence of 2008, Prachanda reportedly stated that violence perpetrated by Maoist cadres and the YCL had undermined the legitimacy of the party, and he vowed to de-militarise the YCL.[4] While the level of political violence no longer reaches the levels of 2008, UCPN-M cadres, particularly in remote regions of Nepal, continue to be implicated in violent acts against political rivals and others, including journalists.

    [1] Racovita, M et al 2013, In Search of Lasting Security: An Assessment of Armed Violence in Nepal, May, pp.17-18, 21 < Accessed 22 May 2013

    [2] International Crisis Group 2010, Nepal’s Political Rites of Passage, Asia Report N°194, 29 September, pp.4-5, 7-10 <Attachment>; see also Racovita, M et al 2013, In Search of Lasting Security: An Assessment of Armed Violence in Nepal, May, pp.17-18, 21 < Accessed 22 May 2013

    [3] United Nations 2011, Report of the United Nations High Commissioner for Human Rights, 16 December, p.15

    [4] Bangerter, O 2012, Internal Control: Codes of Conduct within Insurgent Armed Groups, Small Arms Survey, November, p.49 < Accessed 19 April 2013; Upreti B R & A 2012, Conflict, Transition, and Challenges to Nepal’s Peace Process, January, p. 14, Nepal Centre for Contemporary Research < Accessed 27 May 2013

16. More recent information about political violence in Nepal is contained in a report prepared in January 2015 by the Country of Origin Information Section (COISS) of the Department of Immigration and Border Protection in response to a request from the Tribunal. It contains the following information:

    Reports located indicate that inter-party violence amongst Maoists and the Nepali Congress has diminished considerably in recent years. During 2014, there were no reports of inter-party violence in general across Nepal.

    According to the South Asia Terrorism Portal’s 2015 assessment of Nepal, no violent inter-party clashes were reported during 2014:

    The successful holding of elections for the second Constituent Assembly (CA) on November 19, 2013, have, in some measure, transformed the political environment of the country and diminished violent inter-party clashes. As against 22 such clashes resulting in four deaths and 167 injuries in 2013, no such clashes were reported through 2014.[5]

    [5] South Asia Terrorism Portal 2015, Nepal Assessment 2015, n.d., para.2 < Accessed 27 February 2015 CISEC96CF1246

    South Asia Terrorism Portal’s 2014 assessment of Nepal reported that 2013 was the first year of no reported insurgency-related violence. Political violence however did increase during 2013:

    … political violence did increase considerably during 2013. Activists of political parties clashed with each other on at least 22 occasions resulting in four deaths and 167 injuries. There were four such incident resulting in seven injuries and no fatalities in 2012. Further, activists of political parties clashed with law enforcement personnel on at least four occasions in 2013, with 14 persons injured.[6]

    On 27 May 2013, Business Standard reported that the ‘Nepali Congress today accused UCPN-Maoist cadres of attacking its youth leader and abducting an ex-Maoist who had defected to the party’. Repordedly, Maoists pelted stones at the vehicle that the youth leader and central committee member Gagan Thapa were in. Additionally, Jeevan Khatrichhetri, who defected from the UCPN-M was reportedly abducted by the UCPN-M.[7]

    The recent attempts to promulgate a constitution resulted in UCPN-M led violent outbreaks and nationwide protests:

    … In a clear manifestation of growing political volatility in the Republic, opposition members of the CA, led by UCPN-M, vandalized Parliament and attacked ruling party leaders and security staff, leaving four security staff members injured, on January 20, 2015. Again, on January 22, 2015, opposition CA members threw microphones and shoes at the members of the ruling alliance. On this day, protests also erupted across Nepal, in which several persons were injured and a substantial quantum of property was damaged. In fact, as the deadline for the Constitutional draft approached, protests and bandhs (general strikes) became the order of the day. Significantly, during one such bandh enforced by the UCPN-M-led alliance, which turned violent in several parts of the country, a protester, identified as Rajaram Jha (25), died at Bhramarpurachok in Dhanusha District on January 12, 2015.[8]

    According to a 25 February 2015 report, the UCPN-Maoist youth wing (Young Communist League) staged a March in Kathmandu on 24 February to express their intent to rally on February 28.[9] The 28 February protests resulted in injuries to several policemen, protestors and onlookers as police baton charged and used tear-gas to control protestors in New Baneswaor.[10]

    [6] South Asia Terrorism Portal 2014, Nepal Assessment 2014, n.d., para.2 < Accessed 27 February 2015 CIS2F827D92146

    [7] ‘Nepali Congress claims Maoists attacked party leaders’ 2013, Business Standard, 27 May, para.8 < Accessed 27 February CXC28129413976

    [8] South Asia Terrorism Portal 2015, Nepal Assessment 2015, n.d., para.2 < Accessed 27 February 2015 CISEC96CF1246

    [9] Jayshi, D 2015, ‘Nepal Maoist youth wing stages show of strength’, The Hindu, 25 February, para.1 < Accessed 27 February 2015 CXBD6A0DE2008

    [10] ‘Opposition Protest’ 2015, Nepali Times, 28 February, para.5 < Accessed 3 March 2015 CXBD6A0DE2133

17. The recent 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.[11]

    Divorce

    [11] DFAT Country Report – Nepal, 21 April 2016, paras 2.36-3.29

18. The Country Advice section of the former Refugee Review Tribunal provided the following relevant information in relation to the prevalence of divorce in Nepal dated 17 May 2012[12]:

    In Nepal during the past decade, legislative changes which allow women to initiate divorce and which provide some protections regarding division of property following divorce, together with women’s increased awareness of their rights and the entry of more women into the workforce, have contributed to an increasing divorce rate.

    An article published by the Global Press Institute on 4 May 2012 reported data from the Kathmandu District Court showing that 640 divorce cases were filed in 2005 to 2006, and 1317 cases in 2010 to 2011, a more than doubling of the rate of lodgement. Reportedly, women’s rights advocates are of the view that more women were seeking divorce because increased awareness of their legal rights had helped “combat the social stigma against women for filing divorce”. The article reports that the act of filing for divorce is now easier for women than it is for men, however the divorce process remained “wrought with challenges for women, as society tends to blame them for failed marriages”, and rights that exist in law may be outweighed by cultural norms. For example, an amendment to the Country Code in 2002 gave women the right to property after divorce, however “institutional biases and socially discriminatory practices many times block women from exercising this right to property after divorce... Despite what the law says, many acknowledge that society looks down upon divorce and in most cases blames the women for failed marriages”.[13]

    A September 2011 article in The Kathmandu Post reported that filing for divorce by women was “no longer confined to urban centres” and cited the example of Jajarkot District Court which in recent years has seen the number of divorce applications from women “increase precipitously”, with most of these women aged between 15 and 25 years. It reported also that:

    ...the enactment of Nepal’s Family Law, 2006, which ensured equal distribution of assets between men and women following divorce, allowed women more financial room to lead an independent life. Besides these, growing female literacy and entry of more women into the workforce has also had a visible effect on the divorce rate.[14]

    In May 2011, an article in Republica reported that the average age for divorce in cases filed with the Kathmandu District Court was between 20 and 35 years. It stated that  women had become able to put aside social stigmas relating to the breakdown of marriages, and that urbanisation, modernisation and female empowerment have  “strengthened women to take bold and radical steps which were once considered taboo in Nepali society”. It noted that greater financial security and job opportunities also contributed to women being able to initiate divorce.[15]

    An editorial in The Kathmandu Post in October 2010 earlier reported that the reasons for the rising divorce rate included the 2006 legislative changes that had “allowed women the legal option and the means to leave their spouse”, but additionally stated that “along with the growing acceptance of ‘love marriages’, the social stigma attached to getting divorced is slowly loosening”.[16]

    [12] RRT Country Advice 2012, Country Advice NPL40596, 23 July;

    [13] Bhusal, K 2012, Rising awareness of legal rights doubles divorce rates in Nepal’s capital, Trust Law, source: Global Press Institute, 4 May < Accessed 9 May 2012

    [14] ‘No men, no cry’ 2011, The Katmandu Post [sic], 10 September, FACTIVA – Accessed 15 May 2012

    [15] ‘On divorce’ 2011, Republica, 13 May, FACTIVA – Accessed 15 May 2012

    [16] ‘It’s complicated’ 2010, The Kathmandu Post, 28 October < Accessed 15 May 2012

1. The DFAT Country Report – Nepal, 21 April 2016 provides as follows in relation to divorce (in the context of women):

   According to the Women’s Foundation Nepal (a non-profit NGO that assists women and children victims of domestic violence, abuse and poverty), 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. Social stigma against divorced women, who can be seen to have contravened family honour, is high.[17]

   [17] DFAT Country Report – Nepal, 21 April 2016, para 3.53

   Hearing, credibility, findings and assessment

2. In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA  (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

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

4. The Tribunal has the following credibility concerns with the applicant’s claims.

5. Firstly, there are very considerable differences between the applicant’s written claims, in the application forms for the Protection visa, and what he indicated in the Tribunal hearing.

6. Contrary to the written claims that the applicant was being targeted by Maoists, that his [sibling] had been killed by Maoists, and that he had travelled to Australia to escape these difficulties, in the Tribunal hearing, the applicant indicated that he came to Australia for a new life experience, and that he had not had any difficulties in Nepal prior to his first visit to Australia. The applicant indicated that he has only one sibling, and had only ever had one sibling, who was still living.

7. Contrary to the written claims, in which the applicant claimed that all his property had been taken by Maoists, in the Tribunal hearing, the applicant indicated that he had extensive property in the Nepal, income from which he relied upon to survive in Australia.

8. Contrary to the written claims, which indicate that the applicant had difficulties with society and political leaders on all of his three visits back to Nepal, in the Tribunal hearing, the applicant indicated only one problem on his return visits, which occurred on his second return visit, which was the source of his fear in returning to Nepal. This occurred during the second return visit from November 2012 until February 2013. The applicant indicated that he intervened to complain to noisy customers in a restaurant. He indicated that subsequently this group/gang ran the applicant down in a van on his motorbike, causing him to be hospitalised. The applicant indicated that this group intimidated him into not complaining to the police. The applicant indicated that the sole basis of his fear in returning to Nepal is harm from this group/gang.

9. In the hearing the applicant indicated, contrary to his written claims, that he does not have a fear of returning to Nepal based on being divorced.

10. In response to the Tribunal putting to the applicant a number of the above inconsistencies as between the written claims and what the applicant indicated in the hearing, the applicant indicated that it has been a long time since the 2013 incident and that he has forgotten, and was depressed and has been stressed. When the Tribunal indicated to the applicant it had difficulty accepting that he could confuse his reasons for coming to Australia in the first place, or if he had a [sibling] who had been killed, the applicant indicated that someone else wrote down his claims for protection and he did not read them.

11. The applicant indicated that, although there were donation requests from Maoists, Maoists were not a serious problem.

12. The Tribunal is not satisfied that the explanations adequately explain the inconsistencies. There is no medical evidence of the applicant suffering any cognitive impairment or diagnosis of mental health issues. At the beginning of the hearing, the applicant indicated that he had no difficulty in answering the Tribunal’s questions. In any event, the Tribunal does not accept that stress or depression would cause the applicant to mistakenly indicate that Maoists had killed his [sibling] or that the applicant fled to Australia in 2009 because of his fear of the Maoists or any other key prior claims. The Tribunal does not accept that the applicant would not have been aware of the claims that were made in the application for the Protection visa. The Tribunal is of the view that the very significant discrepancies between the applicant’s written claims and what he told the Tribunal is as a result of untruthfulness on the part of the applicant.

13. Secondly, the written claims indicate that it was on the applicant’s last return visit to Nepal (in October/September 2013) that the incident occurred where he was knocked off the motorbike. The written claims indicate that the applicant had not returned to Nepal since. In the Tribunal hearing, the applicant said that this was as a result of confusion. The Tribunal indicated that it had difficulty accepting that the applicant would be confused as to whether this attack, and the subsequent risk of harm to him, occurred on his last or previous visit to Nepal.

14. This concern was in the context of the applicant explaining in the Tribunal hearing why he would have returned to Nepal for the third visit, if he feared harm from this group on his prior visit. In response, the applicant indicated that his mother was sick and he had no choice but to support her during her illness, notwithstanding the fear.

15. In that context, the Tribunal does not accept that the applicant would be confused as to whether the incident with the group/gang and the motorbike occurred on the last visit or the prior visit. The Tribunal would think that the applicant would have been acutely aware that, on his last visit to Nepal, he felt at a risk of being harmed from this group/gang in relation to the attack that took place on the prior visit.  He would not readily mistakenly believe that the attack occurred on the last visit.

16. The Tribunal considers that this inconsistency on this issue is undermining of the truth of the applicant’s claims.

17. Thirdly, the Tribunal considers that the fact of the applicant returning to Nepal for the third return visit to his home area as confirmed in the hearing, when he claims that he faces a real chance of serious or significant harm from the group/gang is undermining of the truth of the applicant’s claims.  Given the significant credibility issues set out in relation to the applicant, the Tribunal is not satisfied that the applicant’s mother was ill, resulting in the applicant feeling compelled to return

18. Fourthly, on the basis of the applicant claiming that it was the incident on return to Nepal in 2012/13 that created the fear of returning, the delay by the applicant of approximately 21 months after returning to Australia in February 2013, until applying for the Protection visa, is undermining of the fear claimed to be held by the applicant.

19. In response to this concern in hearing, the applicant indicated that his plan was to study and to thereafter work and obtain the right to live in Australia.

20. The Tribunal is not satisfied that the applicant could have been assured that he would meet requirements for such a pathway that would lead to a permanent right to stay in Australia. This is in significant part because his [temporary] visa had been denied by the Department and the applicant was in a review process at the time he claims the fear of harm arose. On the basis that the application had been rejected by the Department, the Tribunal considers the applicant could have had no confidence that the [temporary] visa would ultimately have been granted which would be a first step to gaining qualifications, then work rights, and then permanent residency. The ability to achieve these additional goals would be uncertain.

21. The Tribunal considers, if the applicant had a genuine fear of serious or significant harm, then he would have made an application for a Protection visa at a much earlier point than 21 months after returning to Australia in February 2013, to provide a basis to be able to remain in Australia permanently, to avoid the claimed harm in Nepal.

22. The cumulative impact of these four credibility concerns are seriously undermining of the applicant’s overall credibility. The Tribunal is not satisfied that the applicant has been a truthful witness. The Tribunal is not satisfied as to any of the applicant’s substantive claims.

23. The Tribunal is not satisfied that there was a group/gang who the applicant confronted in a restaurant in 2012/13, who targeted the applicant by running him down on his motorbike, causing him to be hospitalised, and threatened him not to go to the police, or who otherwise have an intention to harm the applicant should he return to Nepal.

24. Other claims by the applicant have not been maintained in the Tribunal hearing. For the avoidance of doubt, the Tribunal is not satisfied that the applicant or his family suffered problems from Maoists which caused the applicant to flee to Australia in 2009. The Tribunal is not satisfied that Maoists or anyone else have taken all the applicant’s property or requested payments with threats to kill the applicant if the payments were not made. The Tribunal is not satisfied that the applicant suffered difficulties from society or political leaders on his various return visits to Nepal, or previously.

25. The Tribunal accepts, based on the medical report, that the applicant was hospitalised in 2013 in Nepal due to a motorbike accident. However, that fact is not probative of claims that the applicant was deliberately targeted for the reasons claimed.

26. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm based on being divorced. The applicant has retracted this claim.  In any event, the Tribunal notes that the independent information contained in this decision would not support the contention that the husband in a divorce would face significant difficulties or social stigma to being divorced. Divorce is becoming more common and easier to obtain in Nepal.  Independent information indicates that the stigma in relation to divorce is focused on the wife in the relationship. This is consistent with Nepal being a patriarchal society.

27. Given its findings, the Tribunal is not satisfied that there is a real chance of the applicant facing serious or significant harm on any of the grounds claimed, including the claimed grounds of race, religion, opinion, political situation, being a divorcee, or for any other reason.

28. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason on any of the grounds claimed, or for any other reason.

29. 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 on any of the grounds claimed, or for any other reasons.

30. 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).

31. 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).

32. 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

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

    David McCulloch
    Member