1515754 (Refugee)

[2018] AATA 466

1515754 (Refugee) [2018] AATA 466 (14 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515754

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Meena Sripathy

DATE:14 February 2018

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 14 FEBRUARY 2018 AT 11:26AM

CATCHWORDS
Refugee – Protection visa – Nepal – Particular social group – Single and vulnerable unprotected woman –Victim of gender based violence – Married off as child –  Sexual and physical abuse – Fears harm from Maoists and her former husband – No family support in India – Cannot relocate to India  

LEGISLATION
Migration Act 1958, ss 5(1), 36(2)(a), (aa), (b), or (c), 36(2A) and (2B),65, 91R, 91R(1), 91R(1)(a), 91R(1)(b), 91R(1)(c), 91R(2), 91S, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v MZYYL (2012) 207 FCR 211
MIMA v Rajalingam (1993) FCR 220
MIMA v Respondents S152/2003

(2004) 222 CLR 1
(1994) 34 ALD 347
[2014] FCA 1245

Selvadurai v MIEA& Anor
SZSPT v MIBP

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 2013 and the delegate refused to grant the visa [in] October 2015. The delegate refused to grant the visa on the basis that the delegate finds the applicant the has effective protection in India under s36(3) of the Migration Act. The delegate was not satisfied that she had taken all reasonable steps to avail herself of a right to enter and reside in India. The delegate also considered the credibility of the applicant’s claims for protection and did not accept her claim of being married previously in Nepal and her specific claim of suffering harm in that context, although the delegate gave her the benefit of the doubt that she may have suffered sexual violence in the past. Notwithstanding this, the delegate was not satisfied that she has a genuine fear of harm in Nepal.

3.    In reviewing the decision, issues for the Tribunal in this review are whether there is a real chance, if the applicant returned to Nepal, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Nepal, there is a real risk that she will suffer significant harm.  If found to satisfy either of these criteria, the Tribunal will consider whether she has a right to enter and reside in a third country.

4.    For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

Evidence before the Department

5.    The applicant is [an age] woman born in Myagdi Nepal.  She states her marital status as ‘married’ and ‘separated’. She indicates she speaks, reads and writes Nepali.  She is the holder of a Nepali passport valid until [month] 2018.  She arrived in Australia [in] November 2008 as the holder of a [temporary] visa valid until [date] March 2011. She provides two residential addresses in Nepal in the period from birth to her departure in November 2008, in [addresses], Nepal. She has completed [number] years of education, to the age of [age].

6.    She refers to a statement of claims attached with the application.  She came to Australia to ‘have her freedom’ and ‘to save her life’. She cannot return to Nepal because the Maoists will abduct her.  She also fears her brutal husband will kill her.  She is a single woman and will be discriminated by society. She claims she was raped by [number] men and also her husband and the same will be repeated. She fears harm from the conservative and male dominant society and the Maoists who mistreated her in the past.  She claims the police and authorities only give protection to high profile leaders and she will get no protection from them. 

7.    The translation of her statement includes the following information:

·She was born in Myagdi District, West Nepal.  She provides details of her parents and a [sibling] who is working in a [workplace] in [another country].

·Her father was a poor [occupation] who struggled to feed and support the family.  Because of financial difficulties her parents, who were uneducated, did not send her to school until she was [age].  She studied for [number] years from [year] to [year].

·The Maoist Party was operating from underground.  They came in small groups a few times to their house to demand food and blankets in the beginning.  When she was around [age], they increased in number and came to the village more frequently. They were involved in the people’s war and fought with the army. She had to walk [to] school and encountered them in the bush and was scared of them.

·There were many girls her age in the cadres and they stopped her and demanded she join them to free the country. They were not good and killed many innocent people and she disliked and was scared of them.

·One day as she was returning from school [number] of the men stopped her and [assaulted her].  She had to keep quiet and tolerate it because they had [weapons] and she was scared. 

·They told her if she did not support and join them they would beat and rape her.  She was so scared after this incident she stopped going to school.  During this time the Maoist movement intensified and they came to the village more frequently.

·Her father was also very troubled by them because they demanded money from all the households.  One day she was approached by [number] Maoist men and one woman while bringing home water from the nearby tap.  They slapped and pushed her and threatened to kill her if she did not join and support them.  She ran home and told her father.

·Her father became very worried and in response he married her off to a man in [another] [District]. She was married to [Mr A] at the age of [age] in 2003. Her father did this to try and keep her safe from the Maoists.

·She had no troubles for the first few years.  Her husband did not work, and their only income was from the sale of [goods]. He often came home drunk. After some time he started to disrespect her and shout at her.  He started to physically assault [her].  He was not happy that she did not get pregnant.

·She ran away to her family on one occasion but he came and brought her back.  He started to spend nights away from home.  He also began bringing friends home and they got drunk and abused her.

·One night her husband was away in [town] for a few days and [number] of his friends came and [raped] her. They threatened her with a knife if she screamed.  After they raped her they left.  She felt like ending her life after this incident.

·After a few days her husband returned [home].  When she told him what his friends had done he showed no sympathy but instead [abused her]. He threatened to kill her.  She ran away and hid behind a bush 200-300 metres from the house.

·After this she returned to her house, took some belongings and ran to a friend’s house where she stayed for a few days. Her friend’s husband was a government officer and he suggested she go to India or overseas to save her life from her husband.  They took her to the police to report the incident but they only wrote something in the register book and made her sign on the side.

·She went back to her parents house, but they were afraid her husband would return looking for her there.  Her father suggested she go to his [relative]’s house in [City 1].

·After the constituent assembly elections the Maoists became the rulers of Nepal and became even more powerful. There were incidents happening every day where people were assaulted, kidnapped and murdered.

·She stayed in [City 1] from early August to November 2008.  Her [Relative 1] is a former [occupation] and has [number] sons [and] is very wealthy. Her father and [sibling] asked him to help her.

·Her [Relative 1] made loan arrangements and contacted an agent who arranged for her to get a [temporary dependent] visa, on the basis of a fake marriage to a person called [Mr B].

·She came to Australia [in] November 2008 and stayed with [Mr B] for 7 days and then went to [a rural town] for work. After that she went to [another State] and found other work.  While working she saved money which she gave to [Mr B]. He promised her he [apply] for permanent residency with her as a dependent. 

·After two years she had no contact with [Mr B] and does not know here he is.  One of his friends told her that he [returned] to Nepal.

·She is helpless and has no eligibility to get a visa by herself.  She does not feel safe to return to Nepal because she has no one to support her there. She is fearful of the Maoists and her husband.   

·She cannot go to India because it is just as unsafe for her as a single and vulnerable woman.  Her [Relative 1], [sibling] and father did not let her go to India and sent her to Australia for her freedom and life.

8.    The applicant was interviewed by a delegate of the Department [in] April 2015. A copy of the audio recording is on the Department file and the Tribunal has listened to it. 

Tribunal hearing

9.    The applicant appeared before the Tribunal on 11 December 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant’s registered migration agent did not attend the hearing.

1. The Tribunal noted at the commencement of the hearing the information provided on the Response to Hearing form that she has been suffering from [a medical condition] and undergoing treatment at hospital and asked the applicant how she was feeling.  She confirmed she had been in hospital for some days at the end of September, beginning of October and is now being treated with medication. She indicated she felt fine to go ahead with the hearing, and would let the Tribunal know if she felt unwell during the course of the proceedings.  The Tribunal proceeded with the hearing on this basis, took a break in the middle and did not observe the applicant to experience any obvious difficulties or discomfort during the course of its questioning. 

2. The applicant provided the following background information.  She completed the forms mostly on her own, only seeking assistance from her migration agent with the translation of the statement.  She confirmed that she wrote the statement herself in her language and it was translated into English. She had nothing to change or add.

3. She presently lives in [a suburb] in share accommodation with [other] women.  She pays fortnightly rent and works at a [workplace].  She was working [number of] days a week until she became ill, and since then has reduced to [number of] days a week.

4. She confirmed she only completed [number] years of education [and] she did not work before coming to Australia in 2008. Her family in Nepal comprises her parents and one [sibling], and provided their names.  Her father is [an occupation].  [Her] [sibling] was in [another country] at the time the applicant left Nepal, but returned in 2010 and has been back since then.  [Sibling] lives with [their] parents in the village.  [Sibling] is married and has [a child].  [Sibling] is not working, other than doing [certain work] like [their] father.  The applicant has been in regular contact with her family since she came to Australia.  She speaks with them about once a month by phone.  They have not reported any problems to her.  The applicant sent money to her family in the first few years after she came to Australia, but has not in recent years.

5. Regarding other relatives, she indicated her father has one living [sibling], who lives in a neighbouring village, and her mother has one [sibling], also in a neighbouring village.  She has no close relatives living elsewhere in Nepal or in India.  Her [relative] who helped arranged her departure from Nepal passed away last year.  He used to live in [City 1].  His three [children] live [overseas].

6. The applicant told the Tribunal she came to Australia as a dependent wife of a man named [Mr B]. She was not really married to him.  Photos were taken of them at a [venue] and documents created to show they were married for the purposes of obtaining a visa.  She met [Mr B] for the first time when they had their photos taken at [a venue].  She next saw him when they travelled together to Australia.  They stayed together for about one week and then she went to [a rural town] for work.  They remained in contact by phone for several years after that, until 2011. She deposited money into his bank account as per their arrangement that she support [him] and he would continue to include her in his visa application.  In 2011 he told her his visa is going to expire and he needed more money to apply for another one or he would have to return to Nepal. She was not well at this time and was not working and asked him if he could include her and she would pay him later. She subsequently heard from his friends that he returned to Nepal. The applicant said she did not know what to do then, and did nothing.  Eventually she told a friend whom she worked with about her circumstances and why she could not go home. This friend introduced her to her migration agent and she lodged the present application.

7. The Tribunal asked the applicant why she cannot return to Nepal.  She said she was married when she was very young and she was harmed by some friends of her husband’s and following this incident she ran away and came to Australia. 

8. The Tribunal asked her to explain what led to her early marriage. She said when she was going to school, it was a long walk from home and she would be threatened by Maoists along the way. They pressured her and other school children to join them or they would be harmed.  She had other friends who joined because of this.  If they did not join they would be harassed.  She was about [age] at the time.  Her parents would be pressured to provide food and shelter for the Maoists.  They gave them food because there was no choice.  They did not have money so they did not give money. When asked if they did anything to her personally, the applicant said one day she was confronted by a group of [boys].  They threatened [her].  She came home and told her father and he said that she should get married.

9. She was married to a man named [Mr A]. He was [age], from a neighbouring village.  He used to come and visit their village and he asked her father if he could marry her. She doesn’t know if he was involved with Maoists himself, but now when she thinks about it, she wonders if he was. His friends referred to him as comrade. 

10. Their marriage was not a big ceremony.  Only her family and his mother attended.  She is not sure if there was any paperwork as they lived in the rural area so did not need documents.  She went to live in his village.  He lived separately from his mother because they did not have good relations. She only saw her mother in law once after the marriage. 

11. The first few years were okay.  She looked after the house.  He [sold goods].  She saw her family during festivals.  After a few years he would come home drunk and ‘torture’ her.  When asked to elaborate what she meant she said he forced himself on [her].  He got angry with her for failing to get pregnant. She never told her parents about his torture. This went on for some [number] years.  Then one day he was away in [town] and a group of [number] of his friends came over and raped her.  She knew these men though her husband.  She knew one of them by name. 

12. After they left, her mind stopped working and she did not know what to do.  About 2 days later her husband came home and she told him.  She thought he may have sympathy but he didn’t.  He blamed her for it happening and beat her and called her a prostitute.  The Tribunal asked her why she did not tell anyone else after the incident.  She said she did not know what to do.  She thought she should tell her husband first.  She had no way of contacting her parents. After her husband reacted the way he did she ran away and went to a woman who was one of her neighbours and after a few days with her she returned to her parents home.  The Tribunal asked the applicant if she ever went to this woman before when her husband was mistreating her. She said she did not because she did not know the woman so well.

13. When she returned to her parents she told them she cannot go back to her husband.  Her father went to speak with his [relative], who suggested that she be sent overseas.  He made all the arrangements for this using an agent.  The applicant said she stayed with her [Relative 1] in [City 1] from this time until she departed Nepal in November 2008.  Her husband came looking for her at her parents place.  Her mother told him she was not coming back to him.  The applicant never saw or heard from the [men] or her husband since she left his village. 

14. The applicant said her husband came to her parents looking for her a few times after she departed the country until around 2012, but after that he has not come.  Neither she nor her parents know anything about his whereabouts now.  The Tribunal put to her that this sounds like he has lost interest in her also. She said that when he used to come to her parents he told them it would not be good for her if she came back. 

15. The Tribunal asked the applicant if she made a complaint to the police about the incident with the [men] or her husband. She said she went to the police in her husband’s village when she was staying with the woman she first went to. The police did not take any action. Her parents did not take it any further because they felt powerless as poor people. 

16. The Tribunal asked the applicant why she did not consider going to India given that Nepalis are free to travel and live there.  She said they had heard that there are many cases of rape and violence against women in India.  She said she believes she will be vulnerable to harm in India as a woman who has no support or family there. She does not know the language and has heard that many Nepali woman are trafficked there.  She is afraid she will be harmed in India as a Nepali woman with no support.

17. The Tribunal asked her why, in light of what she said happened to her, her father and [Relative 1] were prepared to send her to a foreign land with an unknown man.  She said her mind was not stable after what she experienced and they felt that she needed to go to a safe place. Her [Relative 1] told them Australia was a safe country and they trusted him. When asked what she was told to do once she got to Australia, she said she was told that if she helped [Mr B] [he] would include her in his visa applications.  She was prepared to help him so that he would help her in this way. The Tribunal put to her that this suggests she was prepared to provide false information to the Department to obtain a visa and continue to do so after getting here.  It asked her why then should it believe she is now telling the truth.  She said she did this for survival, to save her life and get out of Nepal.  Now she is telling the truth about what happened to her in Nepal.  If she knew about applying for this visa earlier she would have but she did not know.

1. The Tribunal asked her about the documents on her [temporary] file, namely the marriage certificate and Nepal citizenship certificate, naming her father as the person she has referred to as her husband. She said she did not know anything about this until the Department interview when it was pointed out to her. She does not know how this happened. The agent and her [Relative 1] arranged all the documents for her [temporary] visa application. Their mistake should not affect her ability to obtain protection in Australia. The Tribunal notes the Nepal Citizenship Certificate provided with her protection visa application is different to the one on her [temporary] visa application and asked her where she got this from. She said it was in a file of documents given to her when she came to Australia by her father and [Relative 1]. The Tribunal asked her if this document was available then, why was a different Citizenship certificate provided for her [temporary] visa application? The applicant said she does not know.

2. The Tribunal asked the applicant what she fears in Nepal now, given that over 9 years have passed, the political situation is very different, and her husband does not appear to have any ongoing interest in her.  She said she is afraid of what the society will think and do with her as a result of the reason she left the country all those years ago. She fears that they will treat her badly and think very poorly of her.  When asked who would know about what happened to her and how would they know, she said if even one person knows they will spread it around.  The woman she ran to may have told people and they will all know.  Even if her husband does not come after her she does not feel safe in her own mind as a result of what happened to her.  She feels safe in this country and would like to stay here.

3. The Tribunal put to the applicant that, in addition to having a subjective fear of harm, the Tribunal must be satisfied there is an objective basis to her fear of harm upon return. It put to her that independent information before the Tribunal indicates that while there has been a history of violence by Maoists, (and also credible allegations of sexual violence committed by both sides) particularly in the period 1996-2006 and during, and just after, the 2008 election campaign, since elections in November 2013 an environment of peace has prevailed and there have been few reported cases of Maoist related violence.  It put to her that on the basis of this information it may find there is not a real chance she will suffer harm on this basis in future.  The applicant said in response that even if she does not suffer physical violence she will continue to suffer mental torture because of what happened to her and if she returned to that same place.  She fears psychological harm caused by returning to the place where she suffered torture at the hands of her husband and those men.

4. When asked if she has sought any assistance or counselling since being in Australia she said she has not.  

5. When asked if there are any other reasons she fears return to Nepal she said she would like the Tribunal to consider her circumstances as a woman who has been through what she has been through and what it would be like for her to return to Nepal alone now.

Country Information

Maoist political violence

1. The November 2006 signing of a Comprehensive Peace Agreement (CPA) ended a decade long Maoist insurgency known as the “people’s war”.  In the following year, the Maoists joined an interim government then led by Nepali Congress Prime Minister Koirala. In April 2008, Nepal’s first Constituent Assembly (CA) election was held, resulting in the Maoists winning a majority of seats. Subsequently in May 2008 Nepal became a federal, democratic republic. In CA elections held in November 2013, the Maoist led 22-party alliance lost their grip on power to the NC-UML alliance.[1] 

   [1] The Carter Center 2014, Political Transition Monitoring in Nepal, 2009-2014: Final Report, 20 August, Timeline of Key Events <>

   Following the Comprehensive Peace Agreement 2006, Maoist intra-party violence and inter-party violence continued periodically up until 2012. In 2012 inter-party violence greatly diminished, while no reports of inter-party violence were recorded during 2014. 

2. The 2015 South Asia Terrorism Portal’s Nepal Assessment  summarises inter-party and intra-party violence during 2014:

   The environment of peace that had been established in Nepal in 2013 survived, despite challenges, through 2014, with not a single insurgency-related fatality on record. … [I]t was in 2013 that the Himalayan Nation did not record a single insurgency-related fatality during the course of a year, for the first time, and remained completely free of insurgency-related violence.

   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.[2]

   [2] South Asia Terrorism Portal 2015, Nepal Assessment 2015, para.1-2 < Accessed 8 April 2015 <CISEC96CF1246>

3. There have been no fatalities recorded relating to the Maoist insurgency since 2013, with the peak numbers of fatalities occurring in the years between 2002-2006.[3]

   [3] South Asia Terrorism Portal , Fatalities in Maoist Insurgency 2000-2018 , >

   In relation to political opinion, DFAT’s Country Information Report- Nepal states:

   3.28 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.

   3.29 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 is low.[4]

   [4] DFAT Country Information Report –Nepal 21 April 2016, p12

Violence against Women

1. Corruption, bribery, a weak judicial system, discriminatory attitudes, political intimidation and affiliation, and a culture of impunity impact negatively on the capacity of the Nepali police to protect women from violence in Nepal. USDOS, Human Rights Watch and Freedom House all noted in previous annual reports that domestic violence against women is a serious problem that is generally underreported.[5] Sources also indicated that authorities generally do not prosecute offenders of domestic violence.[6] According to USDOS, the majority of domestic violence cases in 2011 were settled through mediation rather than legal action. USDOS noted that this reluctance to prosecute stems from entrenched discriminatory attitudes towards women. Police are also insufficiently trained and have minimal resources to deal with victims of domestic violence and trafficking.[7] In a 2010 case, the perpetrators of a gang-rape allegedly escaped prosecution because they were affiliated with a political party.[8]  Regarding the status of single women, it is noted that divorce in Nepal is uncommon, and those who do divorce tend to be stigmatised and disadvantaged.[9]

   [5] Human Rights Watch 2012, World Report 2012 – Country Summary: Nepal, 22 January <Attachment>; Freedom House 2012, Freedom in the World – Nepal, 24 July <Attachment>; US Department of State 2012, Country Reports on Human Rights Practices for 2011 – Nepal, 24 May, Section 6 <Attachment> Freedom House 2016, Freedom in the World – Nepal, Freedom House 2012, Freedom in the World – Nepal, 24 July <Attachment>; US Department of State 2012, Country Reports on Human Rights Practices for 2011 – Nepal, 24 May, Section 6 <Attachment>

   [7] US Department of State 2012, Country Reports on Human Rights Practices for 2011 – Nepal, 24 May, Section 6 <Attachment>

   [8] Muna, M 2010, ‘To be a woman in Nepal’, States News Service, source: United Nations Population Fund (UNFPA), 9 December <Attachment>

   [9] Jennings, E 2012, ‘Marital Dissolution in Nepal: The Influence of Spouses’ Perceptions of Marital Dynamics’, Paper presented at the 2012 Population Association of America Annual Meeting, Princeton University, 3-5 May < Accessed 26 March 2012 <Attachment>

2. In December 2011, the UN High Commissioner for Human Rights reported that “widespread impunity for perpetrators of gender-based violence continues” in Nepal. The report indicates that:

   Key challenges include the lack of access to justice for women victims, due in part to ineffective implementation of existing laws and policies, the failure of the police to take a gender-sensitive approach and a frequent resort to “mediation”. While the law allows for mediation in domestic violence cases with the consent of a victim, OHCHR [Office of the United Nations High Commissioner for Human Rights] found that pressure may be exerted on victims to accept mediation rather than to seek criminal justice in relation to other crimes, including sexual violence.[10]

   [10] UN High Commissioner for Human Rights 2011, Report of the United Nations High Commissioner for Human Rights – Addendum:  Report on the human rights situation and the activities of the Office of the High Commissioner, including technical cooperation, in Nepal, UNHCR Refworld, A/HRC/19/21/Add.4, 16 December, p. 7 < Accessed 2 May 2012 <Attachment>

3. The Asian Development Bank (ADB) reported in 2010 that the Nepal government formulated a national plan of action to implement twelve critical areas of concern, one of which was violence against women. However, the implementation of the national action plan was severely impacted upon by institutional ineffectiveness, weak capacity and inadequate resources. The same report notes that while the 2009 Domestic Violence (Crime and Punishment) Act recognised domestic violence as a crime punishable by law for the first time, the act also “contains provisions for negotiations through police offices, which seems contradictory.” [11] 

   [11] Asian Development Bank 2010, Overview of Gender Equality and Social Inclusion in Nepal, pp. 5, 6, 15 < Accessed 11 February 2011<Attachment>

4. In March 2012, the Asian Human Rights Commission (AHRC) concluded that “[t]he failure to protect women from gender-based violence is only the tip of the iceberg of the government’s ineptness to promote women’s rights, whether civil and political rights or economic, social and cultural ones”.[12] The report also indicated that “the state is notably failing … to guarantee women’s access to justice … and to adopt comprehensive policies to transform discriminatory and harmful views and practices which constitute violations of the women’s rights”.[13]

   [12] ‘Nepal: Women’s Day – Political Brinkmanship has sacrificed women’s rights’ 2012, Asian Human Rights Commission website, 8 March < Accessed 19 March 2012 <Attachment>

   [13] ‘Nepal: Women’s Day – Political Brinkmanship has sacrificed women’s rights’ 2012, Asian Human Rights Commission website, 8 March < Accessed 19 March 2012 <Attachment>

5. A report by the Secretary General to the UN General Assembly in 2010 stated that Nepal is a country in which “sexual violence…proliferate[s] in a culture of impunity associated with weakened or non-gender responsive security sectors”. The report cites a 2010 study carried out in three districts in Nepal, which concluded that sexual violence was the biggest cause of insecurity for women in the post-conflict context, contributing to womens’ lack of trust in the justice and security sector.[14]

Under-reporting of rape

[14] UN General Assembly 2010, Report of the Secretary-General on the implementation of Security Council resolutions 1820 (2008) and 1888 (2009), 24 November 2010 < Accessed 10 February 2011 <Attachment>

1. The 2010 US Department of State Human Rights Report for Nepal states that most incidents of rape in the country go unreported.[15] Amnesty International’s World Report for 2010 further notes that legislative weakness and inadequate policing obstruct prosecution of cases of sexual violence. Amnesty reports that Nepalese police refuse to record cases of violence against women, or to provide information to female human rights defenders on the status of investigations.[16]

   [15] US Department of State 2010, 2009 Human Rights Report: Nepal, Section 6, March 11 – Attachment 22

   [16] Amnesty International 2010, Amnesty International Report 2010, 15 May, p.241 – Attachment 23

2. A report published by the Informal Sector Service Centre (INSEC) on the incidence of rape in Nepal in 2007 noted that the majority of reported cases involved victims under the age of 18. This is considered an indication of the lack of reporting of rapes involving adult women. The report states that reluctance to report rape stems from fear of community and/or family stigmatisation and of being considered guilty and ‘polluted’. [17] Compounding the situation is the fact that the majority of perpetrators of sexual violence escape punishment under the criminal justice system:

   [17] Pietropaoli, I. 2008, Sexual Violence Against Women in Nepal: Report of Rape Cases in 2007, Informal Sector Service Centre (INSEC), 10 June, Terre des hommes Foundation Child Trafficking Digital Library – - Accessed 9 February 2011 – Attachment 26

3. Access to justice for victims of sexual violence continues to be a serious problem. It ranges from medical doctors refusing to give a medical examination in the absence of police report [sic], the police refusing to file a First Information Report (FIR) in the absence of a medical report, to threats against the victim and her family to withdraw the accusations in the rare case that she manages to press charges.[18]

   [18] Pietropaoli, I. 2008, Sexual Violence Against Women in Nepal: Report of Rape Cases in 2007, Informal Sector Service Centre (INSEC), 10 June, Terre des hommes Foundation Child Trafficking Digital Library – - Accessed 9 February 2011 – Attachment 26

4. The 2016 Freedom House Report stated:

   Women rarely receive the same educational and employment opportunities as men, and gender-based violence against women such as domestic violence, rape, and dowry violence continue to be major problems. The 2009 Domestic Violence Act provides for monetary compensation and psychological treatment for victims, but authorities generally do not prosecute domestic violence cases. The National Women’s Commission, charged with providing reparations to women subjected to gender-based violence, has been severely criticized for failure to implement its mandate and for politicized distribution of resources. Underage marriage of girls is widespread, particularly among lower-status groups.

   Trafficking of children and women from Nepal for prostitution in India is common.[19]

   [19] Freedom House, Freedom in the World 2016 

5. The US Department of State (USDOS) 2016 report on human rights practices in Nepal reported:

   Violence against women and girls remained a problem. Under the civil code, prison sentences for rape vary between five and 15 years depending on the victim’s age. The law also mandates five years’ additional imprisonment in the case of gang rape, rape of pregnant women, or rape of a woman with disabilities. The victim’s compensation depends on the degree of mental and physical abuse. The Bill to Amend Some Nepal Acts to Maintain Gender Equality and End Gender-Based Violence, which was signed into law in October 2015, increased the sentence for marital rape from three to six months’ imprisonment to three to five years’ imprisonment. The bill also extends the statute of limitations for filing rape charges from 35 days to 180 days. Despite its extension of the statute of limitations, human rights groups highlighted concerns with the act and its implications for addressing sexual violence committed during the country’s 10-year conflict.

   Rape, sexual violence, and other forms of victimization suffered disproportionately by women and girls during the country’s 10-year conflict remained unresolved and unaddressed. Men and boys also were victims of rape and sexual assault during the conflict.

   Domestic violence against women and girls remained a serious problem. There was much anecdotal evidence that physical and verbal abuse was common, with human rights organization INSEC reporting an increase in incidents of reported domestic violence during the year, in part due to increased awareness. Violence against women and girls was believed to be one of the major factors responsible for women’s relative poor health, livelihood insecurity, and inadequate social mobilization. Additionally, NGOs reported that the practice of early and forced  marriage, which remained prevalent, limited girls’ access to education and increased their susceptibility to domestic violence and sexual abuse. The Domestic Violence (Crime and Punishment) Act of 2009 allows for settling complaints of domestic violence through mediation with an emphasis on reconciliation. Legal prosecution under the act was usually pursued only when mediation failed. The act’s criminal provisions stipulate a fine of NRs 3,000 to 25,000 ($30 to $250), six months’ imprisonment, or both, for violators. Repeat offenders receive double punishment. Any person holding a position of public responsibility is subject to 10 percent greater punishment than a person who does not hold such a position. Anyone who does not follow a court order is subject to a fine of NRs 2,000 to 15,000 ($20 to $150), four months’ imprisonment, or both.
   …
   

   [20] US Department of State 2016, Country Reports on Human Rights Practices 2016 – Nepal, 8 April, Section 6 Although the law provides protections, women faced systemic discrimination, including in employment (see section 7.d.). Discrimination was most common in rural areas where religious and cultural traditions, lack of education, and ignorance of the law remained severe impediments to the exercise of basic rights, such as the right to vote or to hold property in a woman’s name. Dalit women in particular faced discrimination by virtue of their gender and caste status.[20]

6. The Amnesty International Annual Report 2016-2017 – Nepal noted,

   Discrimination on the basis of gender, … persisted.  The law criminalizing rape was amended so that the statute of limitations on reporting the crime was raised from 35 to 180 days rather than being abolished altogether as required by human rights standards. Gender based discrimination continued to undermine women's and girls’ rights to control their sexuality and make informed choices related to reproduction; challenge early and forced marriages; and enjoy adequate antenatal and maternal health care. Women continued to face domestic violence, including marital rape.[21]

   [21] Amnesty International, Annual Report 2016-2017 - Nepal, p271 type="1">

7. The DFAT Country report on Nepal states the following on violence against women:

   3.47 Nepali women and girls across society, regardless of their economic, caste or ethnic status, are vulnerable to violence in many forms, including rape, sexual abuse and trafficking of. The Government is yet to investigate credible allegations of sexual violence allegedly committed during the 1996-2006 conflict but has acknowledged that women suffered rape during these years.

   3.48 Nepal’s laws contain a narrow definition of rape and have a 35-day limitation period for filing complaints. Penalties for marital rape are low. Police frequently fail to register complaints or investigate and prosecute rape cases, and often divert cases to settlement through informal justice mechanisms.

   3.49 The 2009 Domestic Violence Act provides for monetary compensation and psychological treatment for victims, but authorities generally do not prosecute domestic violence cases. A 2012 government survey found that 48 per cent of women had reported that they had experienced violence at some time in their lives, with the majority of perpetrators being those who were closest to them, particularly intimate partners. A majority of women (61.3 per cent) were unaware of any laws that address gender-based violence (GBV) and only 24.8 per cent of women were aware of services available to survivors of GBV.

   3.50 DFAT assesses as credible reports outlining women’s fear of, and related actual experiences of, sexual harassment and violence on the street (including rape and other forms of physical attack such as murder and mugging) and in the home. DFAT assesses that social stigma, cultural taboos about sexual violence and the fear of retaliation by the perpetrators prevent women from reporting criminal activity. Women’s fear of potential violence or attack can restrict their freedom of movement. [22]

   [22] DFAT Country Report on Nepal 16 April 2016 p15

8. In relation to State Protection, DFAT observes the following in respect of the effectiveness of the police: police corruption and a culture of impunity persist, particularly among low-level officers.  …. Nepal’s police have been accused of extensive involvement in organised crime. Nepal police agencies are hindered by a lack of adequate transportation, training, and equipment. Law and order remains a concern, and many crimes in rural areas occur without police intervention or follow-up.[23]

   [23] DFAT Country Report on Nepal 16 April 2016 p20

FINDINGS AND REASONS

Nationality

1. On the basis of her evidence to the Tribunal, and Nepalese passport, the Tribunal accepts the applicant is a national of Nepal and considers Nepal is her country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria.

Consideration of applicant’s claims

1. The applicant claims she left her country to seek freedom and save her life.  She fears harm from Maoists and her former husband in Nepal and also on the basis of her status as a single woman upon return to Nepal.  She claims she was pressured to join the Maoists during her school years in the late 1990’s and was sexually harassed by them.  She claims she was married at [age], purportedly to protect her from Maoists, but her husband forced her to have sex and physically abused her.  She claimed she was raped by of his friends and then raped and beaten by her husband when she told him, and that she escaped to Australia after this incident. Her fear of harm is on the basis of what happened to her in the past in Nepal.

2. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.  The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

3. Taking the above into account, the Tribunal makes the following findings in relation to the claims she has made, after considering the material before it including the applicant’s written and oral evidence and documents on the Department file and available country information. 

Claims of harm from Maoists during her school years

1. The Tribunal is prepared to accept the applicant’s claims that Maoists came to her village to demand food and blankets and pressured schoolchildren to join their movement and support them. It finds her claims of her and her family’s fear of the Maoists in this period is consistent with country information regarding the escalation of the Maoist insurgency between 1996 and 2006.[24] The Tribunal has considered independent information concerning the Maoist insurgency, known as the ‘peoples war,’ and Maoist related violence and activity in this period, as referred to in paragraph 32-33 above. It also takes note of specific information that refers to the practice of forcible recruitment of children by Maoists across Nepal, including abductions from schools,[25] and information that reported on the abduction of students (and often their teachers) in Myagdi.[26] 

   [24] South Asia Terrorism Portal 2004, Communist Party of Nepal-Maoist < <Attachment>; [24] International Crisis Group 2005, Nepal’s Maoists: Their Aims, Structure and Strategy, Asia Report No. 104, 27 October, p.i <Attachment>

   [25] Human Rights Watch 2007, Children in the Ranks: The Maoists’ use of Child Soldiers in Nepal, February, vol.19, no.2, pp.5 & 18 – Accessed 13 September 2007 – Attachment 29

   [26] ‘Maoists abduct students, teachers in western Nepal district’ 2005, BBC Monitoring South Asia, source: Rajdhani, 19 November – Attachment 30; Levett, C. 2005 ‘Treading carefully’, Sydney Morning Herald, 8 January – Accessed 13 September 2007 – Attachment 31; Rajamohan, P.G. 2004, ‘Arming the Children’ cited in ‘Weekly Assessments & Briefings’ South Asia Intelligence Review, vol.2, no.35, 15 March – Accessed 13 September 2007 – Attachment 32

2. The Tribunal observes the applicant’s account of her claims in her written application and oral evidence to the delegate and Tribunal has been broadly consistent and credible and is supported by the independent information concerning this period.  

Claims she was married to [Mr A] and of mistreatment and sexual abuse by him

1. The applicant claims that her father married her off at [age] to a man named [Mr A] in a neighbouring village as a way of protecting her from the Maoists.  She claims that after some years of marriage her husband subjected her to physical and verbal abuse and was forcing her to have sex. She claims that in 2008 she was gang raped by [his] friends in his absence.  His response when she told him about the incident was to beat her and rape her himself and she fled Nepal after this. 

2. The Tribunal has some concerns about these claims. There is no documentary evidence to support her marriage to [Mr A], such as a marriage certificate or any photos of the ceremony or of them as a couple.  While the Tribunal acknowledges that applicants for protection visas are often unable to support claims by documentary or other proof, in this case there are documents before the Tribunal which contradict her claimed marriage to [Mr A] and evidence which leads the Tribunal to have concerns about her truthfulness and the credibility of her claims.

3. In her [temporary] visa application, where she claimed to be married to a different man, [Mr B], a Nepalese Citizenship Certificate and Marriage Registration Certificate evidencing her marriage to [Mr B] refers to [Mr A] as her father rather than her husband. Meanwhile her passport, issued prior to the date of her purported marriage to [Mr B], indicates [Mr A] as her next of kin.  She offered no convincing explanation when this information was put to her for comment at the hearing.  She told the Tribunal she only knew about these documents when it was mentioned to her by the delegate during the department interview.  She claimed the marriage to [Mr B] was fabricated.  An agent arranged by her [Relative 1] to obtain a visa for her to depart Nepal prepared all the documents and she had no knowledge of the contents.  When asked where and how she obtained the different Certificate of Citizenship that she lodged with the present application she told the Tribunal her father and [Relative 1] gave this to her upon departure from Nepal, but gave no explanation for why this document was not available to the agent at the time her [temporary] visa was lodged. 

4. While the Tribunal can accept as credible and possible that the documents for her [temporary] visa application were arranged by an agent and may not be genuine and correct, it considers her admission that the marriage to [Mr B] was fake and entered into solely for the purposes of obtaining a visa demonstrates a willingness on her part to provide false information for the purposes of obtaining a migration outcome and detracts from her credibility.

5. On the other hand however, the Tribunal has taken into account her explanation that she was desperate to depart Nepal because of the incidents she claims occurred prior to this.  It has considered the overall consistency and coherence of her claims about her husband’s mistreatment of her and the alleged rape. She gave a detailed account of these matters and the rape incident to the Tribunal at hearing that was also consistent with her written statement and oral evidence to the delegate. The Tribunal observed that she was visibly distressed and emotional as she recounted her story.  She has maintained her claims consistently throughout the application and does not appear to have exaggerated or embellished details. Her claims and the timeline of incidents described are supported by independent information before the Tribunal regarding the incidence of child marriage and sexual violence and rape during the period of the Maoist insurgency referred to above and failure by the police to prosecute cases. 

6. In light of this, and despite the contradictory documentary evidence on her [other temporary visa] file, the Tribunal cannot be confident to find that she was not married to [Mr A] as claimed and it cannot discount the possibility that she is recounting a genuine personal experience of trauma.  Her claims of being married off as a child to avoid harm from the Maoists at the height of the insurgency period and her experiences of sexual assault as described are consistent with reports of the vulnerability of children and incidents of sexual violence and rape during the 1996-2006 conflict[27]  as well as country information indicating a significant proportion of underage marriage.[28]  Her claims of attempting to report the rape incident to police, and their lack of action, is also not inconsistent with the independent information referred to above.

   [27] DFAT Country Report on Nepal 16 April 2016 p15

   [28] DFAT’s Country Report states at paragraph 3.58 that Government sources indicate that approximately 29 per cent of girls aged 15 to 19 years are married. The international organisation PLAN reports that 41 per cent of girls aged 20 to 24 years were married before the legal age.

7. Therefore the Tribunal will consider the applicant’s claims on the basis that it is possible, if not certain, that she was married to [Mr A] as claimed in 2003.  It accepts that it is possible, if not certain, that she was mistreated by her husband, including experiencing physical abuse and forced sex.  It accepts as possible, if not certain, that she was raped in 2008, prior to coming to Australia, by men known to her husband as claimed. 

8. The Tribunal will now proceed to consider whether the applicant faces a real chance of serious harm for one of the five reasons specified in the Refugees Convention, upon return to Nepal in the reasonably foreseeable future. 

Fear of harm from Maoists

1. The applicant claims to fear harm from the Maoists, her husband [Mr A] and as a single woman returning to Nepal. 

2. The Tribunal has accepted that the applicant and her family feared the Maoists in the period prior to coming to Australia in 2008, and that she was married off while still a child to avoid harm.  This was in the context of the Maoist insurgency which took place in the decade between 1996 and 2006, and early years of Nepal becoming a republic in 2008. However, since the applicant came to Australia in 2008, the political and security situation in Nepal has changed significantly.  On the basis of the applicant’s evidence of contact she has had with her parents while in Australia she has not indicated any ongoing issues they have had with Maoists.

3. Country information before the Tribunal indicates that the security situation has dramatically improved since the end of the decade long Maoist insurgency, known as the “peoples war,”[29] with no fatalities recorded relating to the Maoist insurgency since 2013.[30] DFAT’s 2016 Country Report refers to the political environment having suffered instability prior to the 2013 elections, including some violence by supporters linked to the main Maoist party on members of other political parties and on people who allegedly informed on Maoists during the civil war, but the situation has significantly changed now and DFAT assesses the overall risk of harm from Maoists now is low.[31]

   [29] DFAT Country Report on Nepal 16 April 2016 p8,

   [30] South Asia Terrorism Portal , Fatalities in Maoist Insurgency 2000-2018 , DFAT Country Report Nepal 16 April 2016, paragraph 3.29, p 13

Therefore, on the evidence before the Tribunal, given the applicant’s background and profile, and the prevailing security and political environment in Nepal now, it is not satisfied there is a real chance of serious harm to the applicant from anyone associated with the Maoists or Maoist parties upon her return. 

Fear of harm from [Mr A] or his associates/friends

1. The applicant has been separated from [Mr A] for almost a decade since coming to Australia. Her evidence was that her family has had no contact from [Mr A] since 2012, a period of over 5 years.  There is no indication that he is demanding her to return to the relationship and she has not given any indication she intends to.   On this basis, the Tribunal finds there is no basis to believe [Mr A] or any of his associates have any ongoing interest in her were she to return to Nepal in the foreseeable future and is not satisfied that she will face a real chance of serious harm from her former husband, [Mr A], upon return.

2. Regarding the rape incident, the applicant referred to having gone to the police station to register a complaint but no action was taken.  She made no claims regarding her intention to pursue the complaint upon return, and given the information referred to above about the failure by police to prosecute rape cases it is unlikely that any action ever came of her complaint or will upon her return. On this basis, the Tribunal is not satisfied that she will face a real chance of serious harm from any of the men who raped her in the past or their associates.

Fear of harm as a single, separated  woman

1. The applicant fears harm upon return as a single, separated, woman, who has experienced sexual assault.  She referred to her fear of further physical violence as well as psychological harm caused by returning to the place she experienced past trauma and harm caused by societal discrimination against her because of what happened to her in the past.

2. Considering her claims, and on the material before it, the Tribunal finds that the applicant is a single, separated woman. The Tribunal accepts on the basis of the country information referred to above, that women in Nepal are vulnerable to harassment and violence, and domestic violence and rape continue to be major issues and divorced (and by implication, separated) women are stigmatised and disadvantaged.  Having accepted her claims of a previous marriage, the Tribunal accepts that she left her husband and that, upon return to Nepal in the reasonably foreseeable future she would be a single, separated woman and that as such she would suffer social stigma, patriarchal attitudes and stereotypes. Given her past history of her father marrying her off when she was still a child for her ‘protection’ from Maoists and being married off again as a means to escape her first husband, the Tribunal considers it cannot be confident that her family will not seek to once again marry her off in future and that there is a real chance she will, in that context, once again face gender based violence which amounts to serious harm.  The Tribunal considers that the weight of independent information about the situation for women in Nepal, as set out above (paragraphs 37-48) is capable of supporting a conclusion that the chance of harm, in the form of gender based violence, for the applicant as a member of the articulated social group is a real chance, as distinct from one that is far-fetched or remote. 

3. However, the Tribunal must also consider whether the applicant is unable or unwilling to avail herself of the protection of her country. On this issue of state protection, the Tribunal acknowledges that the country information indicates there are legal protections for domestic violence and rape and, in this context, there has been favourable recent legislative developments increasing sentences for marital rape and extending  the statute of limitations for filing rape charges.  Noting that judicial authority on the adequacy of protection required by the state is that it be a reasonable level of protection, rather than a perfect one,[32] referring to the obligation of the state to take ‘reasonable measures’ to protect the lives and safety of its citizens, including ‘an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system’,  or a ‘reasonably effective police force and a reasonably impartial system of justice’.  

   [32] See MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26] and [117].

4. The Tribunal observes that the DFAT report notes that in practice there are limitations on police effectiveness, the authorities do not prosecute domestic violence cases and a majority of women were unaware of laws that address gender based violence and that Nepali women and girls are vulnerable to violence in many forms.  However, having regard to the information before it referred to above, the Tribunal cannot conclude that the level of state protection justifies an unwillingness to seek their protection by the applicant and therefore it not satisfied that the applicant is unable or unwilling to avail herself of the protection of her country in respect of her fear of gender based harm.

5. The Tribunal has also considered the applicant’s claims of fears the community will treat her badly and think of her poorly because of what happened to her in the past, and that she fears mental torture and psychological harm if returned there because of her past experiences.  While sympathetic to these fears she has, the Tribunal considers this kind of harm does not constitute serious harm for a Convention reason as required by s91R of the Act.

1. For the reasons given above, and considering the applicant’s claims individually and cumulatively, 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).

Complementary Protection criteria

1. 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 has considered whether there is a real risk the applicant will suffer significant harm if returned to Nepal in the reasonably foreseeable future.

2. The Tribunal accepts that the harm the applicant has suffered in the past, including physical mistreatment and rape comes within the meaning of significant harm.  It is not satisfied that there is a real risk that she will face such harm from Maoists, her former husband or past assailants in the future, for the same reasons referred to above.  Given the changed political climate, and lack of recent contact from her former husband or any contact from her past rape assailants, the Tribunal does not accept there is any basis to find the applicant will face significant harm from Maoists or her former husband or past assailants upon return. It does not accept poor treatment by the community or her own psychological anguish constitutes ‘significant harm’ for the purposes of this criteria and therefore it is not satisfied there are substantial grounds for believing that there is a real risk she will suffer significant harm (within the specific meaning of that term) for any of these reasons, if she is returned to Nepal. 

3. However, the Tribunal has considered whether there are substantial reasons for believing there is a real risk the applicant will suffer significant harm more generally in the form of gender based violence.  Having regard to the country information referred to and discussed above, including the most recent US Department of State and Freedom in the World and DFAT reports, the Tribunal considers that the country information before it supports a conclusion that the chance of the applicant being a victim of rape or other serious sexual assault, domestic violence, or being vulnerable to another forced marriage or being trafficked  in future, having regard to her particular circumstances as a single, separated woman who has already suffered gender based violence in the past, is a real chance and not one that is far-fetched or remote, and therefore constitutes a real risk.

4. The Tribunal has considered s.36(2B), which provides that there is taken not to be a real risk of significant harm if the non-citizen ‘could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm’: s.36(2B)(b).  In MIAC v MZYYL the Full Federal Court held that, to satisfy s.36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[33]  In considering this applicable standard the Tribunal takes into account that all of the recent reports from the US Department of State, Freedom House and DFAT considered by the Tribunal were consistent in their conclusions that rape, domestic violence and violence against women continued to be significant problems in Nepal and the limitations on the effectiveness of police. Therefore, in consideration of the evidence before it the Tribunal cannot be satisfied that the Nepali law or authorities offer a level of protection that would reduce the risk of violence against the applicant such that there would not be a real risk of the applicant facing significant harm.

   [33] MIAC v MZYYL (2012) 207 FCR 211 at [40]

5. The Tribunal has further considered s.36(2B) which provides that there is taken not to be a real risk that an applicant will suffer significant harm in a country if ‘the real risk is one faced by the population generally and is not faced by the applicant personally’: s.36(2B)(c). The Federal Court has held that the natural and ordinary meaning of s.36(2B)(c) requires determination of whether the risk is faced by the population of a country generally as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk.[34] In SZSPT v MIBP, the Court’s reasoning suggests that the ‘faced personally’ element of this qualification requires the individual to face a risk of differential treatment, or because of characteristics that distinguish them from the general populace.[35]  In the present case the Tribunal takes into consideration the following in respect of the applicant’s particular circumstances:  her gender, her past experiences as a victim of a child marriage and past sexual assaults at the hands of her husband and other men, and previous failure of her father to adequately protect her.  The Tribunal finds that these characteristics distinguish the applicant from the general populace in Nepal and it accepts that the real risk of harm in the present case is one that is faced by the applicant personally on account of her particular circumstances. 

   [34] SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014) at [11]-[13]. .

   [35] SZSPT v MIBP [2014] FCA 1245 at [11] to [15]

6. For these reasons the Tribunal is satisfied, on the evidence before it, that there are substantial grounds to believe that the applicant faces a real risk of rape or other gender based violence amounting to significant harm in the future. The Tribunal finds that the risk of being a victim of gender based violence in future is one faced by the applicant personally and not by the population of the country generally, and on this basis the Tribunal finds that it is not excluded from finding that there is taken to be a real risk: s.36(2B) of the Act.

7. For the above reasons, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

Third Country protection – s36(3)

1. Having accepted that there is a real risk the applicant will suffer significant harm if returned to Nepal, the Tribunal has considered whether she has a right to enter and reside in a third country, in this case arising on the material before it, India and if so whether she has taken all possible steps to avail herself of this right to enter and reside in this country: s36(3).

2. However, subsection 36(3) of the Act does not apply if the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in this third country or there are substantial grounds for believing that, as a necessary and foreseeable consequence of availing herself of her right to enter and reside in the third country, there would be a real risk that she will suffer significant harm in that country:s.36(4).

3. The Tribunal has considered the Treaty of Peace and Friendship entered into between India and Nepal which provides for freedom of movement and equal rights of participation in the economy and legal system.[36] It accepts that the applicant has a valid passport which would enable her to enter India by air.  Therefore she has the right and the means to enter and reside in India. The applicant herself acknowledged that as a Nepali she can travel to India.  She told the Tribunal this option was considered for her by her [Relative 1] and father prior to coming to Australia but they did not want her to go there because it was not safe.  When asked why she could not go to India now to avoid harm in Nepal, she claimed that she would not be safe there either as a single woman with no family support, protection or connections.

   [36] See DFAT Thematic Report: India –Nepal Treaty of Peace and Friendship Rights of Nepalis in India, 22 December 2016

4. In this regard, the Tribunal has considered and gives weight to a substantial body of independent evidence regarding the risk of violence against women in India. For example, the Tribunal has considered and refers to information in the UK Home Office’s Country Information and Guidance Report on India: Women fearing gender based harm/violence[37], the Report of the United Nations Special Rapporteur on Violence against Women in her mission to India in May 2013[38] and DFAT’s Report on India[39] which states:

   3.54 The National Crime Records Bureau registered 309,546 cases of crimes against women in 2013. Of these cases, 118,866 were cases of domestic violence (including dowry harassment); 70,739 were cases of molestation; 51,881 were kidnappings; and 33,707 were cases of rape. According to the third National Family Health Survey conducted in 2005-06, around 14 per cent of current or previously married women had reported some form of emotional violence, 10 per cent ‘severe’ physical violence, 31 per cent ‘less severe’ physical violence, and eight per cent had experienced sexual violence. Many cases of domestic violence go unreported.  …

   3.56 A number of high-profile cases during 2012 focused media attention on the broader issue of sexual assault against women. This resulted in the creation of the Verma Committee to consider and recommend amendments to criminal law to provide faster and more effective access to justice for victims of sexual assault. Following the release of the Committee’s report in January 2013, the Central Government amended the Penal Code to expand the definition of rape, introduce new crimes such as stalking, acid-throwing and assault with intent to disrobe, and strengthen sentences for these crimes. The amendments also made it a crime for police or public officials to refuse to register sexual assault complaints. Despite these reforms, sexually-motivated harassment and violence remain a problem of significant scale in India, and access to police and judicial intervention for victims is often poor.

   [37]

   [38] Cited in the UK Home Office Country Information and Guidance Report on India: Women fearing gender based harm/violence  April 2015, at p20 . full citation:

   [39] DFAT Country Report on India 15 July 2015

5. The Tribunal has also noted and considered information that refers to India as a source, destination and transit country for men, women and children subjected to forced labour and sex trafficking, and that Nepali women and girls are specifically named as a vulnerable group.[40]  

   [40] US Department of State, 2014 Trafficking in Persons Report - India, published 20 June 2014 see also Nimisha Jaiswal, She’s like my wife, you know how it is, 8 April 2017, The Hindu, and  Freedom in the World 2016  >

   The Tribunal accepts that the applicant has no family or social support available to protect or support her in India.  Given its findings above, accepting that she was married off as a child, and experienced sexual and physical abuse in that context, it finds that she would be particularly vulnerable to further gender based violence were she to go to India as a single unprotected woman.  In light of the weight of evidence regarding the risk of violence against women in India, the Tribunal is satisfied there are substantial grounds for believing that there is a real risk that she will suffer significant harm in India as a single, Nepali woman with no family protection or support.

6. For these reasons the Tribunal finds that s36(3) does not apply in the present case.

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Meena Sripathy
Member

Relevant law

1. 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

1. 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).

2. 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.

3. 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.

4. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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

1. 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’).

2. ‘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.

3. 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

1. 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.

UN Human Rights Council: Statement dated 1 May 2013: ‘Special Rapporteur on Violence against women, its causes and consequences finalises country mission to India.’