1515288 (Refugee)

1515288 (Refugee) [2019] AATA 4066 (9 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1515288
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Christine Cody
DATE:9 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 09 June 2019 at 11:54am
CATCHWORDS
REFUGEE – protection visa – Nepal – complementary protection – fear of harm from Maoist –mixed race child – particular social group – divorced women – not provided satisfactory evidence to support key claim – credibility issues – delay in seeking protection – not a genuine marriage – right to enter India – open boarder policy – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5A, 36, 65, 424SS
Migration Regulations 1994 (Cth), Schedule 2
CASES

MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZFDV v MIAC (2007) 233 CLR 5
SZRSN v Minister for Immigration and Citizenship [2013] FCA 751
SZATV v MIAC (2007) 233 CLR 18
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 - SUMMARY

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). A summary of the relevant law is provided at Annexure A.
The applicant is a citizen of Nepal who applied for the protection visa on 17 December 2013 on the grounds that she is a refugee or entitled to protection under Australia’s complementary protection provisions. She has made numerous claims; her initial main claim was a fear of harm from the Maoists. The delegate refused to grant the visa on 13 October 2015. Numerous other claims have been added by the applicant and her solicitor throughout the process.
The applicant had been represented by registered migration agents before the Department, and received assistance from a solicitor at an asylum seeker organisation during the application for review, both prior to and after the first hearing. Prior to the second hearing the same solicitor then informed the Tribunal that she represented the applicant on a continuous basis. The applicant and her solicitor requested a number of extensions of time to provide submissions/documents which were granted; although certain documents (such as relating to the applicant’s child’s citizenship) have never been provided by the applicant or her solicitor, despite requests from the Tribunal. There were also delays also in reaching a decision on this complex case by the Tribunal, for which the Tribunal has apologised to the applicant. A further difficulty in reaching this decision has been the significant adverse credibility concerns in relation to the applicant, consideration of the applicant’s past proceedings seeking to remain in Australia based on circumstances relating to her three marriages, and considering future scenarios hampered by a lack of credible information from the applicant. The Tribunal considers that she has not been honest or forthright in her dealings with the Department or numerous tribunals, including in relation to her family members and circumstances in Nepal. The Tribunal for the most part does not accept her assertions, however it has in some instances given the applicant the benefit of the doubt.
The Tribunal has a number of files before it, relating to the current protection visa application and review, as well as files relating to the applicant’s previous applications seeking to stay in Australia:
·     Two Departmental files relating to the protection visa application ([file deleted]) contained documents including the applicant’s protection visa application forms, her Form 80 (Personal Particulars), identity documents and supporting documents including a psychological report, numerous pages of country information about Maoists and Nepalese history. There was the recording of the delegate’s interview with the applicant on 10 March 2015 (to which the Tribunal has listened), as well as copies of documents from her other proceedings (relating to her marriages).
·     A Departmental file relating to the offshore student visa application of her first husband, [Mr A] (the applicant came to Australia as his dependent) ([file deleted]);
·     A Departmental file relating to the application to remain in Australia as the spouse of her second husband, [Mr B], whom she married in Australia ([file deleted]);
·     A Tribunal file relating to an application for review of the Department’s decision to refuse the applicant’s application to remain permanently in Australia as the spouse of her second husband ([file deleted]).
·     The Tribunal file relating to the current review, containing the application for review and a copy of the delegate’s decision record provided by the applicant, as well as further supporting documents, and numerous submissions.
The applicant appeared before the Tribunal on 25 August 2017 by with video link to give evidence and present arguments. She brought her child (from her third husband) and a support person with her. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The Tribunal put to the applicant that it had significant concerns with much of her evidence and the credibility of her claims and background. It also put information to her pursuant to s.424AA of the Act. After the hearing the applicant forwarded further documents to the Tribunal, including in August 2017, November 2017, April 2018, September 2018, and November 2018. A second hearing was held on 5 March 2019 and further post hearing submissions were received in April 2019.
The Tribunal has considered available country evidence including the documents provided by the applicant and her agents/solicitors and other available country information. Further, in accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the country information assessments prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Report Nepal, 1 March 2019 (“the DFAT report).
For the following reasons, the Tribunal has arrived at a decision that there is a small, but nevertheless real risk of significant harm for this applicant if returned to Nepal.
CLAIMS AND EVIDENCE
The applicant’s migration history and background - Nepal
As noted in the credibility section below, aspects of the applicant’s background and claims have changed throughout the process. The following is a general summary of the applicant’s claims and background:
·     The applicant was born in a village in Panchthar, Nepal. She speaks, reads and writes in both English and Nepali.
·     Her ethnicity is Nepali and her religion is Hindu/Orthodox.
·     Her father is deceased. She declared in her application form that she has a mother and [brothers] in Nepal. Later at interview she disclosed that she has [sisters] and [brothers] who reside in Nepal[1]. She said that a [brother] lived in Kathmandu. She told the Tribunal that her mother lives in the village with her [brother] who is around [age] years old. He is [employed]. Her other brother is [age] years old and is in India doing various jobs; he lives there with his girlfriend. She speaks to her mother about three times per month; they are excited about the birth of her child and want to meet the child.
·     She lived in the village until she moved to Kathmandu a few years before she came to Australia. She was educated and completed tertiary college from [date]. She worked in her local area. She came from a prominent//known family; her father was [employed in Occupation 1] and she followed in his footsteps in the village. She was [employed in Occupation 2 for Workplace 1] (she told the Tribunal that although this was her written claim, she was not employed [at Workplace 1]).
·     In the village, she was required to pay her wages to the Maoists; she was also kidnapped by Maoists in 2006 and taken back to their base and they attempted to convert her to their ideology. They took her because her father was influential ([information deleted]) and they thought that if she converted, then others would follow. They let her go but later returned to take her again. After being held for three days she escaped. Her family hid her, but the Maoists came and ransacked the home, and took her brother, threatening to kill him if she did not give herself up. She gave herself up and they let her brother go. She was made to stand in front of everyone and pretend to be a Maoist but she cried so they saw it was not true. She then ran away to Kathmandu in fear of her life, to escape the Maoists[2].
·     She went to visit relatives in India in 2005[3]. She told the Tribunal that the family has relatives in India in Manipur Assam; they lived there over 50 years.
·     From January 2006-September 2008 she was working in Kathmandu [at Workplace 2], then at [Workplace 3 as Occupation 3]. She also attended a [a] College in [year].
·     In Kathmandu too, she lived in constant fear and felt that she had no choice but to run away.
·     Her passport was issued [in] 2008.
[1] Source: delegate’s decision record provided to the Tribunal by the applicant.
[2] This was sourced from the application form; at the hearing she said there was an error in the application form about how often she was kidnapped.
[3] See application forms submitted to Department.
The applicant’s migration and background history - Australia
The applicant’s migration and background history in Australia is set out below:
·     She came to Australia with her first husband, [Mr A], whom she married in about November 2007. She travelled to Australia as a dependent upon his student visa [in] September 2008[4].
[4] See: the applicant's evidence; the delegate's decision record provided to the Tribunal by the applicant.
·     She started working in Australia [in an occupation] (December 2008-November 2010); thereafter she worked [in another workplace] (from December 2010 to (at least) the date she signed her protection visa application: December 2013). For part of this time she also worked part-time [in another occupation].
·     She separated from her first husband after she arrived in Australia. She divorced him in 2010[5].
[5] Applicant’s evidence as set out in the delegate’s decision record provided to the Tribunal by the applicant.
·     She married her second husband [Mr B], an Australian citizen, [in] October 2010. She lodged a partner (Class UK/BS) visa application [in] October 2010[6].
[6] DF10.
·     The applicant and her second husband separated less than one year after marriage, [in] September 2011, and subsequently divorced.[7]
·     The applicant claimed (in her ongoing application for a permanent visa based on her marriage) that the relationship had broken down due to family violence. Her application was refused by the Department (around this time it appeared she started living with her third partner) and she lodged an application for review in the MRT relating to her second marriage which was unsuccessful on 19 November 2013. The MRT found that the second marriage relationship had not been genuine[8].
·     As noted above, the applicant lodged a protection visa application on 17 December 2013. She claimed that six months before she sought protection in Australia, her brother was told that if the applicant returned to Nepal, she would be killed, because the local group blames the applicant for the failure of the Maoist party to maintain power in Nepal [the Maoist insurgency ended in 2006 with an agreement being reached[9]]. She believes she will be harmed by Maoist rebels and people associated with the Unified Communist Party of Nepal and its splinter groups who engage in acts of terror in the local community that go unchecked by the party leadership. She believes that she will be targeted because she is well known, her family is well known and that death threats have been received by members of her family. Additionally she claims there is no policing in the village and so there is no protection against these people.
·     She provided to the Department a report from a meeting with a psychologist [Mr C], forensic and consultant psychologist dated 14 December 2013 (three days prior to the lodgement of her protection visa application). It was noted that the psychologist had had one meeting with the applicant and her then partner, and he provided an opinion that although this was her third marriage, they showed genuine affection and devotion, and they were likely to maintain a long and satisfying relationship. He noted she claimed to have been born in Nepal to a middle class family [in] Nepal. Her first marriage broke down because they were not compatible as a couple; she described this as “a very big mistake”. She comes from a large Nepalese family and maintains regular contact with her unwell mother and her siblings in Nepal. She had never received any psychiatric treatment and she has generally enjoyed good physical health. In his opinion, she is not currently suffering from any diagnosable psychological disorder but she is highly anxious and worried about her current migration predicament. They would both be emotionally shattered if she was not granted a visa. Although he was sceptical given her two previous relationships, after speaking with them he considered there was genuine devotion and obvious affection and he is strongly of the opinion that they are highly compatible, genuinely in love and likely to maintain a long and satisfying relationship if they are afforded the opportunity to do so [by the applicant not being asked to leave Australia].
·     Her partner [Mr D] attended the protection visa interview with the applicant on 10 March 2015[10] (some of her evidence at interview was set out in the delegate’s decision record). She asserted that he is an Australian citizen and that he would return with her to Nepal because he also fears for her life.
·     She married her third husband [in] May 2015.
·     The applicant gave birth on [date]; she has a [child] who is now aged over [age]. The child is not an applicant in these proceedings.
·     The applicant has not worked since the birth of her child.
·     The agent sent a letter to the Department stating that the applicant had left her third husband [in] September 2015, asserting that she was suffering from post-natal depression (no medical evidence was provided to that effect).
·     At the first hearing the applicant told the Tribunal that she left her third husband [in] April 2016; she has the care of their child; he has supervised access to the child, and there were reciprocal apprehended violence orders in place against both of them. The applicant provided further documents after the first hearing, as discussed below. The applicant’s solicitor later submitted that there were not reciprocal apprehended violence orders; instead there was one against the third husband for the benefit of the applicant and the child.
[7] Application for divorce lodged with Federal Circuit Court provided to the Department by the applicant.
[8] Per the applicant’s evidence to the current Tribunal.
[9] See footnote 25
[10] Delegate’s decision record provided to the Tribunal by the applicant.
The delegate’s decision record
On 13 October 2015, the delegate refused to grant the application for a protection visa.
The delegate was not satisfied the applicant's claims of fearing harm in Nepal were credible; her claims of harm were critically lacking in detail and she has not provided satisfactory evidence to support her key claim of fearing harm at the hands of the Maoists and police protection not being available to her or that she cannot safely relocate anywhere in Nepal. Inconsistencies in the applicant’s claims included that she gave changing evidence (including a support letter from Nepal and a psychological report in Australia) as to who she actually worked for in Nepal which had led to her problems with the Maoists ([Workplace 1], or [a branch] Office or unemployed at the time); and she undermined her support letter from [an official of Organisation 1] by saying the letter was incorrect; further the letter was not an original but a copy, and the delegate gave it minimal weight. It was also noted that although the applicant had provided reports in proceedings (psychologist and psychiatrist) there was not mention of any previous harm in Nepal; when the delegate asked her why, she said that this was because she was in deep depression so she did not mention the harm in Nepal; the delegate did not find this plausible given she was questioned about her life in Nepal, and if she was fearing a return to Nepal, it was considered that she would have mentioned this.
The delegate noted that she claims that she was kidnapped by the Maoists over 10 times and held for periods of time that varied between 5 to 22 days. These instances of harm occurred between the years 2002 to 2003. Despite the 10 instances of claimed harm experienced by the applicant, she was able to provide only minimal details about what happened during the time she was held by the Maoists; it was also considered that her claim to have been declared as a leader of the Maoists despite her resistance to them was not credible. Further, while claiming she was in fear of her life, she claimed to have lived and worked in Kathmandu from January 2006 until September 2008 unharmed, which detracts from her claims.
The delegate considered that she was just seeking to remain in Australia to be with her husband and to have her child in Australia, and her delay in seeking protection for 5 years after she arrived undermined her claims.
In addition to finding that the applicant was not a refugee or entitled to complementary protection, the delegate found that the applicant had not taken all possible steps to avail herself of a right to enter and reside in India, whether temporarily or permanently, and having considered s.36(3), (4), (5) and (5A) of the Act, the delegate found that the applicant was not owed protection obligations by Australia.
The Tribunal
As noted above, there was significant oral and written evidence, and submissions and documents provided; this is discussed further below when relevant, as are the issues and adverse information put to the applicant.
At the first hearing the applicant only initially claimed to fear harm in relation to the Maoists (in relation to both herself, and her child upon return). Thereafter, numerous other claims were made, including claim that the applicant belonged to a number of particular social groups.
At the start of the second hearing the Tribunal said that the credibility concerns raised at the first hearing remained, and it gave the applicant a further opportunity to comment on these. Post second hearing submissions also referred to these concerns. The Tribunal also referred to the latest DFAT report and the issue of the child’s citizenship and the applicant’s lack of attempts to date to obtain proof of this. Further information was put to the applicant pursuant to s.424A of the Act.
FINDINGS AND REASONS
Country of reference
The applicant produced Nepali passports during her protection visa application process and in earlier applications. The Tribunal finds that the appropriate country of reference for the assessment of her refugee claims, and the receiving country for the purposes of her complementary protection claims, is Nepal.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
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).
The Tribunal had concerns with the applicant’s inconsistent, changing and unlikely evidence, as discussed below.
Firstly, the Tribunal was concerned that the applicant gave inconsistent evidence about whether or not she had an intention to return to Nepal since she had been in Australia.
In this regard, she told the Tribunal that she would have returned to visit her mother in Nepal; as her visas would have allowed her to travel to Nepal and then return to Australia; but she did not do so because she had such a fear of harm in Nepal from the Maoists. The Tribunal asked if she was saying that she has never intended to go to Nepal because of her fear of harm and she agreed. This however was inconsistent with four assertions she had made on separate occasions, as set out below:
The Departmental file relating to the applicant’s onshore spouse visa application (relating to her second husband) contained:
·     The 21 October 2011 report of the psychiatrist [Dr E] stated that when interviewing the applicant, she was “uncertain as to whether she would stay in Australia”,
·     A letter from the applicant’s agent dated 16 February 2012 stated that the applicant is contemplating returning to her home country at the earliest opportunity as her mother is ill[11].
·     The applicant’s statement in those proceedings signed 10 December 2012 included her family members suggesting that she return to Nepal (after there were problems in Australia with her first husband), and she also stated that “in recent days, we [her husband [Mr B]] started dreaming a beautiful future. We had planned to visit my family in Nepal and have children together”.
[11] This is referred to in a DIAC note on the spouse visa file [file deleted]; the note also stated that a subsequent letter was provided dated 1 March 2012 indicating that “circumstances are such that our client will not be returning home in the near future”.
The Tribunal put to the applicant that these instances indicated that she had had an intention to return to Nepal (and that relatives at least in 2012 considered that she should return). In response she said that whatever she said is true. Her family told her she could come back and maybe nothing will happen to her but some people told her that there is danger if she comes back and whatever the situation she is fearful. The reality is different, she only wanted her second husband to go to Nepal and meet her mother. She said that she told her second and third husbands that because of the situation she can’t go back and only they can go there. Her explanation however is different to the above assertions that the applicant is recorded as having made to different people at different times, asserting an intention to return to Nepal. The Tribunal noted that she had also, on a fourth occasion, said that she would return to Nepal. The report from psychologist [Mr C] dated 14 December 2013 provided to the Department in the current proceedings stated that she and her third husband both hope to travel to Nepal in the future so he can meet her family and better understand the cultural background. The Tribunal asked if she wished to comment and she said that is true.
It thus appeared that (even after she was lodging her protection visa application, and indeed beforehand), the applicant told a number of people that she intended to or was prepared to go to Nepal. This contradicts her assertion to the Tribunal that she has never intended to return to Nepal because her fear of harm from the Maoists is so strong. The Tribunal considers that this undermines her credibility and her claims relating to harm from and fear of the Maoists in Nepal.
When this was raised at second hearing she said that she met numbers of lawyers and agents before and at the time she was not mentally strong and the information she provided may have been inconsistent but she was not lying. The solicitor said that the context of her comments should be taken into account. These explanations do not however adequately explain why the applicant told the Tribunal that she had never had any intention of going to Nepal because of her strong fears, while telling others that she did indeed have such intentions. The Tribunal considers that her willingness to go to Nepal undermines her claims that she was targeted by and faced and faces harm from the Maoists everywhere in Nepal, such was the reason why she had to flee to Australia; it also undermines her credibility.
Secondly, the Tribunal was concerned that although the applicant produced a number of mental health reports throughout different proceedings, in none of those reports was it mentioned that she had suffered any previous harm in Nepal[12]. The reports included the psychological report she had provided to the Department on 14 December 2013 in support of her protection visa application, a psychologist report dated 12 October 2010 in relation to the spouse visa proceedings before the Department and the psychiatrist report dated 21 October 2011 ([file deleted]). As noted above, the applicant told the delegate that she was in “deep depression” and she did not mention her suffering in Nepal to the specialists she was consulting. The Tribunal was concerned that the reports indicated that she was questioned about her life in Nepal and the causes of her claim to have a deep depression; it put to the applicant that if she had attended upon three different mental health specialists (psychiatrist and psychologists) for the provision of reports and discussed her life in Nepal and if she had suffered terribly at the hands of the Maoists including being kidnapped, living in hiding and needing to escape Nepal, then the Tribunal would think that this is something that she would have mentioned to these professionals preparing reports on her behalf. In response, the applicant said that this was her past, she escaped from there and didn’t want to share that with anyone and make the pain fresh. She had difficulties sleeping so she did share this information with others. The solicitor suggested it would be misguided to rely upon the applicant’s failure to mention these difficulties in Nepal. The Tribunal does not accept these explanations. It is not prepared to accept that when discussing her life in Nepal with mental health specialists she failed to ever mention that Nepal was a place where she had feared for her life (especially noting that one of the reports was provided in support of her protection visa application). The Tribunal considers that this undermines her claims of past harm and distress caused by the Maoists, as well as her claimed fears.
[12] Refer to delegate’s decision record page 15.
Further, the applicant went further than just not mentioning her horrific experiences in Nepal which she told the Tribunal caused her difficulties in sleeping; she told one psychiatrist, according to the report of [Dr E], 21 October 2011), that she had had a happy childhood. The Tribunal put to the applicant that it was difficult to understand why she would say this to a psychiatrist instead of referring to the difficulties in Nepal: the situation in her village, her escape to Kathmandu and her subsequent escape to Australia. She said she wanted to share with the psychiatrist the happiness, she did not want to share the negative things in her life, her troubles started when she was older. The Tribunal is not prepared to accept that, having attended upon a psychiatrist, and considering her claim that she had difficulties sleeping as a result of what had happened in Nepal, she did not mention her suffering in Nepal at all, but instead said that she had a happy childhood.
The Tribunal had further concerns about what she told the psychiatrist; it was her (protection visa) claim that her father [worked in Occupation 1], and she had followed in his footsteps and also [worked in Occupation 2] (which had led to her problems), but she told the psychiatrist that her father [worked in Occupation 4]. In response, the applicant said that even though her father was involved in [Occupation 1], he was also [employed in Occupation 4]. Her solicitor said that her father was a [employed in Occupation 4] by trade although he conducted himself like [Occupation 1] in the community (the solicitor said that, contrary to the applicant’s written claim, he was not [employed in Occupation 1]). These explanations are different to the applicant’s initial claims and the Tribunal is not satisfied that the explanations account for the changing evidence. As noted below, the applicant did not claim in her application form that her father was [employed in Occupation 4].
Thirdly, the Tribunal was concerned that the applicant provided inconsistent claims as to where she lived and what she did as a result of her fear of the Maoists:
·     In some parts of the applicant’s application forms, she claimed to have lived in her village all of her life until she went to Kathmandu in September 2006[13].
·     In other parts, she was unemployed and in hiding due to Maoists threats and kidnapping for 13 months, from December 2004 until January 2006 (while living in her village), and then she moved to Kathmandu in January 2006 (working [in Workplace 2] from January 2006 until December 2007[14]).
·     In her application form she claimed to have gone to India to “visit relatives” in December 2005.
·     The applicant told the Tribunal that she left the village for Kathmandu in November 2006. Prior to this she resided in the village but she “went in and out” a few times. When asked when, she said in around February 2006 she went to Sikkim in India, not too far away from her home, because of Maoist problems (this was contrary to the claim in her application form that she went to India to visit relatives in 2005). She then went to Terai Jhapa (about [number] hours walk plus public transport time away from her home) in Nepal and stayed there for a few months (about March – June 2006) (this was not a claim previously made).
[13] DF 39.
[14] DF22, 39.
The Tribunal put to her the inconsistencies concerning her claimed movements to escape Maoists. Initially she said that she thought her evidence was consistent; then she said that she can’t recall dates; she was in hiding due to a fear of being killed by Maoists, in different locations for about 5-6 months. The solicitor submitted that she had difficulties with dates and converting dates and that she was stressed which has impacted her memory. The Tribunal notes that there is no current evidence to this effect concerning the applicant’s mental state or memory and the Tribunal notes that the solicitor herself suggested that any past reports be treated with caution as they were taken after only one session with the applicant. While the Tribunal has been prepared to accept, when considering the situation upon return in Nepal, that the applicant has had difficulties with her third husband and that she will be vulnerable, it is not satisfied that this cannot explain the inconsistencies and difficulties with her evidence arising in the previous proceedings, as well as in her written protection visa application materials and at the interview with the delegate. Further, the Tribunal took evidence on two separate occasions from the applicant and considered that she had capacity and was able to give evidence and present arguments in support of her case. While giving her the benefit of the doubt in the findings as to her vulnerabilities upon return, this does not mean that the Tribunal is prepared to accept that she has any condition which can explain the changing and inconsistent evidence. The Tribunal has found that the reason for this is that she is not a witness of truth. The Tribunal has considered the solicitor’s assertion that the applicant felt “pressured” to give dates and that she has tried to be honest. The Tribunal does not accept that the applicant was pressured by being asked to provide information about her claims; it also notes that her differences were not only in relation to dates, but also periods of time, and even locations. The applicant’s evidence was internally inconsistent in her application forms; as well as when comparing her written and oral evidence. The solicitor has also asserted that the applicant’s “limited legal representation” is a mitigating circumstance on her behalf; the Tribunal does not accept this assertion given that she has given inconsistent evidence even when represented. When allowing for the passage of time and not expecting perfect recall, the Tribunal considers that the differences in when and where the applicant moved to avoid the Maoists undermines her credibility and claims.
Further, there were additional concerns with her evidence given to the Tribunal. As noted above, she claimed that after her problems in her village, she went to India and then to Terai Jhapa in Nepal. When the Tribunal asked where she went afterwards, she said she then returned back to her home in the village, where she lived for more than one month; she then went to Kathmandu. The Tribunal put to her that it was difficult to accept that she would have returned home to the village and remained there for over one month, given her written claims (that she was avoiding kidnapping and threats at the hands of the Maoists, who had targeted her in her village) and her oral evidence to the Tribunal (that she thought the Maoists would kill her).
In response, the applicant said that the Maoists had kidnapped her brother and held him hostage so that she would turn herself in to the Maoists to obtain the release of her brother. The Tribunal sought confirmation that this was her evidence; she confirmed it was true. Although this was a claim she had made in her application form (that her brother had been kidnapped and she had given herself up to secure his release), this claim was inconsistent with her evidence given at interview on 10 March 2015. At that time, when the delegate referred to her application form which stated that there was one instance where she had been kidnapped and she had to give herself up to secure her brother’s release, she had specifically told the delegate that this assertion was incorrect, this did not happen.
The Tribunal put to the applicant her changing evidence. She said that what she is recorded as having said at interview is not correct, she did give herself up in order to protect her brother, who was being forced to do hard labour. Despite having the assistance of a solicitor she did not provide evidence from the interview recording to support that she did not say this to the delegate. The post second hearing letter (from the solicitor) just states that the evidence she gave at interview is “incorrect”, there was no credible explanation as to why she said that at the interview; the Tribunal considers that her changing evidence on this significant claim (as to whether or not she returned, putting her life at risk, or at the very least at risk of being kidnapped, in order to save her brother), undermines her credibility and her claims that she or her brother were kidnapped.
Further, in addition to the changing dates about when she went to Kathmandu, the applicant also gave vague and changing evidence about what she did in Kathmandu (concerning her studies). She said to the Tribunal that she started [Course 1] in Kathmandu in around 2006. She studied for the first year but that she did not attend the first year exam. She then said that she didn’t attend classes and she studied at home. The Tribunal asked her why she didn’t attend her classes and she said it was “because of my situation”. The Tribunal asked what this meant and she said she was doing [Course 2] in Kathmandu which she started January 2007. The Tribunal suggested that attending a course in 2007 should not have prevented her from attending her classes in 2006. She then said that in November 2006 she went to Kathmandu and she enrolled in both courses and [Course 2] started in 2007 and she only did that one course; she did not do [Course 1]). The Tribunal noted that this was inconsistent with her initial evidence that she had done one year of her [Course 1]. She responded that she had thought about studying it, but she did not. At the second hearing her evidence was again inconsistent, she said she “prioritised” [Course 2], although she did attend [Course 1]. The Tribunal considered that her changing evidence as to what she did in Kathmandu undermines her credibility.
Additional inconsistent evidence was provided about where she lived in Nepal prior to coming to Australia. On the Departmental file relating to her onshore spouse visa application, the applicant provided a Certificate of Nepalese Citizenship issued [in] 2008, which provided space for her to state her current address as well as her place of birth. This document noted that her present address at that time was the same as her place of birth, namely [a village], Panchthar[15]. This was inconsistent with her evidence in her protection visa proceedings that, by this time, she had escaped to Kathmandu due to a fear of harm from the Maoists, and she was living there. In response, the applicant said that she didn’t have any address in Kathmandu, so she gave her current address as her village address, although she said the information she gave was not true. This response however appeared inconsistent with her claim that she had a genuine first marriage (in November 2017) and was living with her husband who she claimed had been living “for a long time in Kathmandu”. If this was the case, it does not makes sense for her to claim that she did not have an address in Kathmandu. The Tribunal considers that she has again given inconsistent evidence as to where she was living in order to escape the Maoists (her village or Kathmandu) which further undermines her credibility.
[15] Folio 93.
Fourthly, the Tribunal was concerned with the differing evidence about the applicant’s work in the village in Nepal, as well as events which occurred there.
The Tribunal noted that according to her application form, [Occupation 2] was the important work carried out in her family; she agreed. When the Tribunal asked what was her job in her home area in Nepal she said she was [employed as Occupation 2] selected by the government; she was not a government employee. When asked for further details of the job, such as when she stopped, her evidence was somewhat vague. She said that she stopped the job in about 2004, 2005, 2006. The Tribunal noted that these were all different years. She said it is hard to recall perhaps it was 2007/2008 but she is not sure.
The Tribunal then asked her what made her give up her job and she said the Maoists threatened her. The Tribunal put to her that this would have been a significant event and it was difficult to understand that she could not recall which year this occurred. The applicant said again that she could not recall. She later said that she gets confused about dates, sometime she thinks she stayed in Kathmandu for 5 years. While the Tribunal accepts that these events occurred some time ago, she has provided different dates spanning four years concerning a crucial event which led to her having to flee her home country. The Tribunal considers that her claim that she can only provide a date range of four years for the year that this occurred to be unlikely. Further, she then said she knows she ran away to Kathmandu; she stayed there for two years. The Tribunal considered that if she was in Kathmandu for two years before coming to Australia (2008) then this would mean she left her home town in 2006; if this was the case, the Tribunal would think that she would have been able to estimate when she had to leave her important work as [Occupation 2] due to the Maoists threats.

Further inconsistencies about where and when and for whom she worked included:
·     A letter from [Organisation 1] dated 16 December 2013 which had also been discussed at interview[16]. It stated that the applicant had been appointed [in Occupation 2] in Panchthar in 1995 and had been forced to resign due to the Maoist insurgency; as the village environment was uninhabitable, she moved to Kathmandu in 2006.
·     The above was inconsistent with her application form: that she had worked [for Workplace 1 in Occupation 2] from March 1999 to December 2004. She was then unemployed from December 2004 to January 2006 as she was in hiding from Maoist rebels. There is a 9 year difference in start date and a two year difference in when she ceased her job as a result of the Maoists’ intervention, when considering her application form and the letter.
·     The report of the psychologist [Mr C] states that the applicant worked at [Workplace 1] until she came to Australia in 2008 (which is inconsistent with being forced to resign from her job and fleeing her village for two years to Kathmandu).
·     Her previous passport, issued [in] 2006 provided to the Department, stated that she was [employed in Occupation 4]. However according to her written claims, she had been [employed in Occupation 2] (for either 5 or 9 years depending upon the version put forward) then a student and working in [another industry] in Kathmandu. It was not in her written claims that she had ever been [employed in Occupation 4].
[16] Page 14, the delegate’s decision record.
Concerning the first two inconsistencies (1995-2006 v. 1999-2004) the applicant said there was a mistake with the dates in the letter and she cannot recall any date exactly; concerning the psychologist’s report that is a misunderstanding and she did not work [in Workplace 1] and she did not work [in Occupation 2] up until the time she came to Australia; this must be due to a lack of interpreter. At the first hearing the applicant responded that she doesn’t know what is written in her old passport, which has since been stolen, and [Occupation 3] was not her job. The Tribunal noted that this did not explain why she claimed at that stage to be [in Occupation 4]. At the second hearing she said that she came from [information deleted] family so she wrote that. If this was the case, it is hard to know why she did not offer this as an explanation at the first hearing when asked. The Tribunal is not prepared to accept that there are credible explanations for the extent of the changes and inconsistencies about her background.
Further, the applicant provided changing evidence about the kidnappings (some of this was in explanation for inconsistencies, which led to further inconsistencies). Her protection visa application form refers to two kidnappings (the first was in 2006, and the second one thus had to be in 2006 or later, when she gave herself up for her brother, escaped after three days and ran away to Kathmandu). Later however she claimed she was kidnapped on 10-12 occasions; and she also said that the kidnappings occurred over a period of several years (not just in 2006). As noted above, she also changed the period of time she was in hiding (from 13 months down to 4-5 months), and changed her evidence as to whether she came back to the village after having been kidnapped. Further, she made a new claim at interview, not referred to at all in her application form, that the Maoists forcibly introduced her as a leader of [a] committee which then got her in trouble with the army, the authorities placed her on bail and she had to report to the authorities.
By way of explanation the applicant said that “kidnappings” included periods where she was pressured to attend ideological meetings by the Maoists. While the Tribunal would accept that being forced to do actions in a captive situation is kidnapping, this does not explain the inconsistencies in her evidence about the kidnappings, the surrounding circumstances, and the new claim as to adverse attention from the authorities as a result of her interactions with the Maoists.
Fifthly, the Tribunal was concerned with the inconsistent evidence as to whether or not the applicant needed to leave Nepal in fear of her life. In this regard, the Tribunal noted that, as set out in the delegate’s decision record (page 15), the applicant claimed at interview that she and her first husband came to Australia because she feared for her life, and her husband was equally concerned for her. The Tribunal suggested that this did not appear to make sense, because after the events occurred leading her to fear for her life, she had continued to stay in Nepal, namely in Kathmandu, where she lived unharmed for at least two years before travelling to Australia. The Tribunal put to her that it appeared that she did not need to leave Kathmandu due to fear of harm or to save her life.
In response, the applicant said that when she was in Kathmandu she was living in fear and she used to walk a lot; sometimes she caught public transport. The Tribunal put to the applicant that her activities, which included working at [Workplace 2] and [Workplace 3][17], and enrolling in/ undertaking studies in Kathmandu[18]; walking around and catching public transport, did not indicate that she was living in hiding in Kathmandu. In response she said she had a fear and she couldn’t go and see her mother before she left Nepal. The Tribunal considers that the applicant’s actions and manner of leading her life in Kathmandu undermine that she was in hiding; that she faced any harm from Maoists in Kathmandu; and that she had to flee Kathmandu to Australia because both she and her first husband were in fear for her life. The Tribunal considers this also undermines her credibility.
The applicant’s relationships
[17] In her application form she claimed to have worked [in Occupation 3 at Workplace 2], Kathmandu from January 2006 until December 2007, and to have worked [in Occupation 3 at Workplace 3] Kathmandu from December 2007 to September 2008.
[18] In her application form she claimed to have studied (unnamed) courses [at a centre during various dates] in Kathmandu (leading to a qualification in 2007 of[an Occupation 3]”).
The Tribunal was concerned that the evidence suggested that the applicant appeared prepared to engage in untruths and activities, including relationships, in order to obtain a visa outcome. For example:
Concerning her first husband: This relationship lasted just over one year: late 2007 until sometime in 2009; they divorced in Australia in 2010. Her evidence was that they started living together as soon as they were married [in] November 2007, that he stayed with her the whole time except he would go see his brothers and sisters in Kathmandu. She then said that he was [employed] so he would go and [work] in Lalitpur (near/in Kathmandu), where he [worked] for 2.5 years. Her evidence however, was contradicted by documents in the offshore student visa file of her first husband, including:
· A letter dated 10 May 2008 from [her first husband’s employer] in [a village in] Panchthar, noting that her first husband is a permanent resident of [Panchthar] district, and that he had been [employed] [from] January 2004 until [April] 2008.
· His student visa application confirmed that he had been working [in] her home area of Panchthar, from January 2004 until April 2008.
As put to the applicant, the documents indicate that he was [employed] in her home area both before and after their marriage, and if they were living together after marriage, this means they were both living at her village home area at the time she claims to have fled to Kathmandu and never to have returned to her village. An alternative is that she was living in Kathmandu but that she falsely claimed they lived together in a genuine relationship in Nepal. The Tribunal was concerned that this indicated that but that they did not live together after marriage and that the marriage was just part of an arrangement to allow her to come to Australia.
The applicant said that this form was filled in by her first husband she doesn’t know what he said in it. She said that he lived in Kathmandu for a long time, and after she came to Kathmandu, she never went back to the village. The Tribunal notes that there is no explanation as to why, if her first husband was [employed] in Kathmandu and had lived there for a long time as claimed, he would have needed instead to provide documents showing he was [employed] in her village.
Further, there were even inconsistencies with the applicant’s evidence as to where she lived in Kathmandu, both before she was married, and after she was married. For example, the applicant said at hearing that when she went to Kathmandu, she first went to Lalitpur (in Kathmandu) where she stayed with a [relative], then she moved to other districts within the same area. When asked, she was unable to give the name of an apartment building where she stayed. This was of concern, given her application form had provided the name of a single building where she had lived the whole time she was in Kathmandu ([in a location]) from September 2006 to September 2008. Only after she was reminded of this did she agree with this. She then said that she moved, then she got married and stayed with her husband in [in a location] but a bit far from the hostel. The Tribunal said that it did not appear that she was explaining the inconsistencies. She said that she can’t explain, it must be a mistake.
The Tribunal considers that her changing evidence as to where she lived in Kathmandu undermines her credibility, her claims about her background and the claimed genuine nature of her first marriage.
Concerning her second husband: Although the applicant told this Tribunal that her marriage to her second husband was genuine, there was significant evidence to the contrary. The Tribunal notes that the MRT did not accept it was genuine, finding that although they were living at the same address it was not a genuine marriage:
The Tribunal does not accept the applicant’s evidence that she married the sponsor because she was in love and not because she wanted a visa to stay in Australia. The haste in which the wedding was arranged and the applicant’s conversion to a new religion without any religious instruction or prior meeting with the priest, all indicate that timing for the wedding was paramount. While the Tribunal accepts that a migration outcome is not necessarily inconsistent with a genuine married relationship, on the evidence before it, the Tribunal is not satisfied that the social aspects of the relationship and the nature of the commitment of the applicant and the sponsor to each other supports a conclusion that the relationship between them was genuine and continuing. After considering all the circumstances of the relationship, the Tribunal finds that while the applicant and sponsor may have shared an address, the relationship between the applicant and sponsor was not genuine and continuing[19].
[19] MRT decision.
This Tribunal is not bound to follow those findings; it makes its own findings. However, when this Tribunal considers the evidence, concerns include:
·     An allegation was made [in] September 2011 that the applicant had married an Australian citizen to get permanent residence; she had paid already [amount] and needed to pay [amount] more[20].
·     Her then sponsor told the Department that they never had sex, they resided together only 4-5 months, he thought she was using him to get a visa, they broke up not because of family violence, but because the applicant started going out with someone else.
·     The Tribunal also noted that according to the wedding photos on the MRT’s file [file deleted], the only persons present at the wedding were the applicant and her husband (and the required two witnesses)[21].
[20] Departmental notes as referred to in the delegate’s decision record refusing her partner visa application located in the Departmental spouse visa file.
[21] Folios 138-141 of the Tribunal file.
The Tribunal put to the applicant that the above indicated that she had not been in a genuine relationship with her second husband but instead had married him to obtain a migration outcome. In response she said that whatever is written there is not true; she has tried to have a relationship with him. There was a dispute about [an issue] at home, she tried to get him out of bad habits. They stayed together before they got married and his address was different to hers. She could not go to his address because he lived in a share place with Chinese. She did not get married to get a visa; it was a genuine marriage. If it was fake she could have given him more money. It was 100% real marriage, she had no such intention and there is no evidence she paid him.
A further concern was that the applicant gave different reasons before the current Tribunal and the MRT as to why she changed her religion. She told the current Tribunal that the only reason she changed it was out of love and that she was not happy with her Hindu religion. This however appeared inconsistent with her evidence to the MRT that she essentially changed her religion because her visa was expiring and she wanted to marry an Australian man and lodge an application for a partner visa:
The applicant told the Tribunal she changed her religion in order to marry the sponsor. She told the Tribunal the sponsor had organised their wedding and, at that time, both she and the sponsor believed her visa was due to expire on 10 October 2010. The applicant told the Tribunal she and the applicant visited the marriage registry office in order to get married [in] [October] 2010 but were told they could not get married until a date in November. The applicant told the Tribunal the sponsor asked registry staff what they could do to get married earlier and was advised by registry staff to get married in a Church. She told the Tribunal her landlord helped organise a priest and she was baptised into the Orthodox Church [in] 2010 and married in the Church [in] 2010. On questioning by the Tribunal, the applicant told the Tribunal the baptism took place in her landlord’s office and she had not met the priest prior to the baptism, or had any kind of religious instruction. When questioned by the Tribunal about why the baptism and wedding was organised in such haste, the applicant told the Tribunal the applicant and the sponsor were worried about her visa expiring. On questioning from the Tribunal, the applicant told the Tribunal she did not marry the sponsor in order to get a visa to stay in Australia, she told the Tribunal she could have gotten a student visa instead, or left Australia and gone anywhere, and that she married the sponsor because she was in love. She told the Tribunal they had initially planned to visit [a country] together and work hard and buy some land and have children sometime in the future but the relationship had deteriorated[22].
[22] Paragraph 19, MRT decision.
The Tribunal put to her that it appeared she was prepared to change her religion to get a visa. In response she said that she loved him, she did not see any documents stating that he was an Australian citizen, she just loved him, she just knew he was residing in Australia for 20-25 years but she did not know his status. She could have married anyone. The wedding date had to change and that’s why her friends were not available. They had to go to a church because otherwise her visa would expire. The Tribunal has also considered the post second hearing submissions but does not find them a persuasive explanation for the evidence, which indicates that the applicant was not in a genuine relationship, she changed religion and married because her visa was expiring and she sought a visa outcome to remain in Australia. It does not accept the applicant’s assertion that the second husband was violent and this was the reason she pursued a permanent visa to remain in Australia.
The applicant claimed at the second hearing that that her mother was not happy about the change in religion and nor were her brothers. She also claimed that she will face harm because she married a Christian, and the mentality is because she is a Brahmin she can only marry a Brahmin. The Tribunal asked why she did not explain this at the first hearing and she said that she thought she did but she might have forgotten. She then asserted that as a result of her change of religion she would not be accepted in her village and if for example her mother was to die she would not be allowed to touch her because of the change of religion.
The applicant made no claims about how her change of religion would affect her in her protection visa application, nor did she claim that she would face any difficulties because she had married a Christian. The Tribunal considers that she would have made these claims if they were true, but she did not do so until towards the end of the proceedings because they were and are not a genuine source of harm for her. The Tribunal considers that these are further claims made up by the applicant. It is not prepared to accept that she had a genuine change in religion, that she informed anyone in her home country that she was baptised, nor that getting married in a church or changing religion had any real meaning for her. There was no evidence provided suggesting that she has continued to practise Christianity.
Concerning her third husband: The Tribunal had concerns that the applicant did not know the surname of the third husband she married. The applicant told the Tribunal that she had separated from her most recent partner, [Mr D]. The Tribunal asked whether her partner had any other name, and she said no. The Tribunal asked who is [Mr F] and she said she had no idea. The Tribunal asked whether he was the same person as her partner, [Mr D]; she did not agree.
However, the birth surname of her third husband, the father of her child, appeared in numerous locations on documents that had been provided in these proceedings on behalf of the applicant. The references to [Mr F] were in:
·     The report of the psychologist [Mr C] that the applicant had provided to the Department in support of her protection visa application. It was stated that on 10 December 2013, she had attended his consulting suite “with her partner, [Mr F]”, where the psychologist had engaged in separate assessments, and then had a joint discussion with both of them. The report mentions the name “[Mr F]” on about 50 occasions.
·     The delegate’s decision record dated 13 October 2015 (provided by the applicant to the Tribunal). This notes that she was accompanied to the interview with the delegate on 10 March 2015 by [Mr D] also known as [Mr F], and that the applicant’s agent had informed the Department she had married him [in] May 2015 and that she had given birth to his child on [date].
·     The child’s birth certificate provided to the Department by the agent recorded the father of the child as [Mr D], stating his birth name was [Mr F].
·     The applicant provided a signed Form 80 dated 17 December 2013 to the Department in support of her protection visa application, which listed her partner as “[Mr F]”[23].
[23] Folio 42, Departmental file.
The Tribunal put its concern that she did not know the name of her husband. She said that she knows the name of the father and son is different. The Tribunal put to her that it did not understand what she meant by this. She said she only knew her partner as [Mr D]. The Tribunal notes that the marriage certificate provided to the Tribunal by the agent, shows the witnesses to the marriage of the applicant and her husband both have the last name of [Mr F’s surname] (one being the applicant’s son [Master G][24], the other one being [another person with Mr F’s surname]), Further, she said he has a different history and he changed his name and she heard that from other people; she knew that he lied to her. The Tribunal has considered this explanation however if she had known that he had another name, when the Tribunal was asking if she knew who [Mr F] was, it would think that she would have told the Tribunal this, especially given his son’s name is [Master G] and that she was living with his son (according to the Psychologist [Mr C]’s report). She later asserted that when the concerns were raised by the Tribunal at the first hearing, she did know that [Mr F] was [Mr D] but she did not say so because she was worried that evidence would be asked for but now she can tell the truth as the birth certificate has his name on it. This evidence indicated that the applicant was prepared to knowingly lie when give evidence to the Tribunal. Given she made other assertions without supporting evidence (for example that she had been kidnapped by the Maoists, the Tribunal is not prepared to accept her claimed reason for telling untruths. In the post hearing submissions this evidence was changed to say that she had misunderstood the initial questions and thought that the Tribunal wanted evidence of his alternative surname. The Tribunal does not accept this new explanation.
[24] [Mr F’s] son's name according to the [Mr C] psychologist’s report provided to the Department by the applicant; it was also noted that the psychologist had been informed that the applicant was living with [Mr F] and his mother and son [Master G], all of whom enjoy "very warm relationships".

Further, the Tribunal has considered each of the exceptions relating to complementary protection and for the same reasons as discussed when considering those exceptions for Nepal, the Tribunal considers that the applicant will still face a small but real risk of significant harm in India for reasons of her particular vulnerabilities which are not the same as the rest of the population, and that country information does not indicate that she will not face a real risk of significant harm as a result of relocation in India, nor, having regard to the decreasing conviction rates for rape and the high number of unreported cases and noting that women have complained that police refuse to file reports of sexual violence, it is satisfied that the laws and protection framework of India relating to discrimination and mistreatment of women will reduce the risk to the applicant to less than a real risk.
Accordingly, the Tribunal is satisfied that for the reasons above, that in the particular circumstances of this case, the conditions prescribed in s.36(4) are satisfied such that s.36(3) does not apply.
Conclusion
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).
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 satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Christine Cody
Member
ANNEXURE A- RELEVANT LAW
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.
Refugee criterion
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).
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
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.

[2019] AATA 4066

9 June 2019

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

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Remedies