1516634 (Refugee) - [2017] AATA 2668

1516634 (Refugee) [2017] AATA 2668 (31 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1516634
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Meena Sripathy
DATE:31 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 October 2017 at 6:21pm
CATCHWORDS
Refugee – Protection visa – Nepal – Particular social group – De facto relationships – Single women – Revolutionary groups – Fear of social stigma

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 Schedule 2

CASES
SZQNO v MIAC [2012] FCA 326
Iyer v MIMA [2000] FCA 52
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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] November 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Nepal, applied for the visa [in] May 2015. The delegate refused to grant the visa on the basis that the applicant’s claimed fear of harm was not related to any of the reasons set out in s.5J(1) of the Act and therefore she was not a person in respect of whom Australia had protection obligations under s.36(2)(a). The delegate also found the claimed harm was not significant harm within the meaning of s36(2A) and was not satisfied that there were substantial grounds for believing that there was a real risk the applicant would suffer significant harm for the purposes of s.36(2)(aa) of the Act.
The issues 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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1516634 (Refugee)

Details

AGLC: 1516634 (Refugee) [2017] AATA 2668
Case: [2017] AATA 2668
Decision Date: 31 October 2017

CaseChat Overview and Summary

This matter concerned an appeal by a woman from Nepal against the Tribunal's decision to affirm the refusal of her protection visa. The applicant claimed she could not return to Nepal due to fear of social stigma and mistreatment as an unmarried woman who had lived with a man out of wedlock. She also referenced a past incident involving a female revolutionary group disrupting a cultural event she participated in, during which she alleged police provided no protection and the district court refused to hear her case.

The legal issues before the court were whether the applicant met the criteria for a protection visa, specifically whether she had a well-founded fear of persecution for reasons of membership of a particular social group, or alternatively, whether she would suffer significant harm as a necessary and foreseeable consequence of removal from Australia, thereby engaging Australia's protection obligations under the complementary protection criterion. The court was required to consider the applicant's claims in light of the relevant provisions of the *Migration Act 1958* (Cth), including definitions of "significant harm," "particular social group," and "well-founded fear of persecution," as well as Ministerial Directions and country information.

The Tribunal considered the applicant's claims regarding her past experiences and her current fear of social stigma in Nepal due to her de facto relationship. It also took into account the incident involving the revolutionary group, noting the lack of police protection and the court's refusal to hear the case. However, the Tribunal found that the applicant did not satisfy the criteria for a protection visa under section 36(2)(a) of the Act, nor did she meet the complementary protection criterion under section 36(2)(aa). The Tribunal's reasoning, as reflected in the decision, was that the applicant had not established a well-founded fear of persecution for reasons of membership of a particular social group, nor had she demonstrated a real risk of suffering significant harm upon return to Nepal.

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

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence before the Department Information in the application form indicates the applicant is [an age] year old woman from Tanahun, Nepal. Prior to her arrival in Australia in 2009, she resided for over 10 years in Pokhara, Kaski Nepal. She states her religion as Hindu/Buddhist, and her marital status as separated. She indicated she was in a relationship from January 2012 to March 2015. Her family comprises her father and sister who reside in Nepal and a [Relative A] who resides in [Country 1]. She states she is not in contact with her relatives outside Australia. She travelled to Australia in January 2009 legally on her Nepali passport issued in 2007 and valid to [2017] as the holder of a student visa. She has not returned to Nepal since her first arrival in Australia. She completed secondary school in Nepal, and commenced but did not complete a tertiary degree. In Australia she completed a [course] from January 2009 to December 2010. She gave no details of past employment in Nepal, but has been working in various jobs in the [course related] sector in Australia. The applicant provided a Statutory Declaration dated [in] May 2015 which contained details of background and circumstances, and reasons why she cannot return to Nepal. Included in the information she provided are the following claims:·She was raised under strict control by her grandmother, after her parents went to [Country 1] in [year], often suffering harsh punishments which would have been considered child abuse in Australia. ·After her parents returned to Nepal in 1997 she and her family moved to Pokhara. ·She describes various activities she engaged in during her school and post school years which were disapproved of by her grandmother who considered her a rebel and improper.·In 2008 she participated in [a youth competition in] Pokhara and won second runner up position and secured [an associated title]. Many members of the neighbourhood congratulated her and she participated in a follow up competition, [named]. As a result of the political conditions in Nepal at that time and female revolutionary groups against [such competitions], it was made a talent hunt and later a cultural show.·On the day of the show, a female revolutionary group came in and disrupted the show. A big group formed and they took refuge in a nearby shop for safety. She describes coming out into the crowd and her confrontations with the mob. ·The police provided no protection to them. Later the district court refused to take the case against the revolutionary group taken up by the director of the [talent hunt].·After this incident her father encouraged her to apply to study abroad so she could live her life how she wanted. She felt her life was constrained in Nepal because of what had happened to her in this incident. ·She applied for and was granted a student visa in Australia, and completed several courses until December 2010. ·In March 2011 she applied for a [different temporary] visa through an agent called [name] and describes what happened with this application. She paid the agent money but was never contacted again about the matter. She discovered in May 2012 that her visa application was refused in April 2012. She describes the further processes she took after that, leading to an appeal to the Federal Court which was ultimately unsuccessful, following a hearing in April 2015. She was unable to take the matter further because of financial difficulty but she considered the outcome unjust. ·At the end of 2011, she met a Nepali man and they began dating in early 2012 and later lived together. They lived together until they separated in March 2015. ·She cannot return to Nepal now because she has lived with a man out of wedlock, and she is still an unmarried woman and she is fearful of how she will be treated in Nepal. She believes she was an eyesore even before she left Nepal but she will be seen even worse now.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Meena SripathyMemberATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c)that is not inconsistent with Article 7 of the Covenant; or(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a)that is not inconsistent with Article 7 of the Covenant; or(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a)for the purpose of obtaining from the person or from a third person information or a confession; or(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c)for the purpose of intimidating or coercing the person or a third person; or(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system...36Protection visas – criteria provided for by this Act… (2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) 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; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision. Mandatory considerations In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence before the Department Information in the application form indicates the applicant is [an age] year old woman from Tanahun, Nepal. Prior to her arrival in Australia in 2009, she resided for over 10 years in Pokhara, Kaski Nepal. She states her religion as Hindu/Buddhist, and her marital status as separated. She indicated she was in a relationship from January 2012 to March 2015. Her family comprises her father and sister who reside in Nepal and a [Relative A] who resides in [Country 1]. She states she is not in contact with her relatives outside Australia. She travelled to Australia in January 2009 legally on her Nepali passport issued in 2007 and valid to [2017] as the holder of a student visa. She has not returned to Nepal since her first arrival in Australia. She completed secondary school in Nepal, and commenced but did not complete a tertiary degree. In Australia she completed a [course] from January 2009 to December 2010. She gave no details of past employment in Nepal, but has been working in various jobs in the [course related] sector in Australia. The applicant provided a Statutory Declaration dated [in] May 2015 which contained details of background and circumstances, and reasons why she cannot return to Nepal. Included in the information she provided are the following claims:·She was raised under strict control by her grandmother, after her parents went to [Country 1] in [year], often suffering harsh punishments which would have been considered child abuse in Australia. ·After her parents returned to Nepal in 1997 she and her family moved to Pokhara. ·She describes various activities she engaged in during her school and post school years which were disapproved of by her grandmother who considered her a rebel and improper.·In 2008 she participated in [a youth competition in] Pokhara and won second runner up position and secured [an associated title]. Many members of the neighbourhood congratulated her and she participated in a follow up competition, [named]. As a result of the political conditions in Nepal at that time and female revolutionary groups against [such competitions], it was made a talent hunt and later a cultural show.·On the day of the show, a female revolutionary group came in and disrupted the show. A big group formed and they took refuge in a nearby shop for safety. She describes coming out into the crowd and her confrontations with the mob. ·The police provided no protection to them. Later the district court refused to take the case against the revolutionary group taken up by the director of the [talent hunt].·After this incident her father encouraged her to apply to study abroad so she could live her life how she wanted. She felt her life was constrained in Nepal because of what had happened to her in this incident. ·She applied for and was granted a student visa in Australia, and completed several courses until December 2010. ·In March 2011 she applied for a [different temporary] visa through an agent called [name] and describes what happened with this application. She paid the agent money but was never contacted again about the matter. She discovered in May 2012 that her visa application was refused in April 2012. She describes the further processes she took after that, leading to an appeal to the Federal Court which was ultimately unsuccessful, following a hearing in April 2015. She was unable to take the matter further because of financial difficulty but she considered the outcome unjust. ·At the end of 2011, she met a Nepali man and they began dating in early 2012 and later lived together. They lived together until they separated in March 2015. ·She cannot return to Nepal now because she has lived with a man out of wedlock, and she is still an unmarried woman and she is fearful of how she will be treated in Nepal. She believes she was an eyesore even before she left Nepal but she will be seen even worse now.