1516652 (Refugee)

[2017] AATA 2578

1516652 (Refugee) [2017] AATA 2578 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516652

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Roslyn Smidt

DATE:8 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 08 November 2017 at 2:58pm

CATCHWORDS

Refugee – Protection visa – Nepal – Married  without parental permission – Domestic violence victim – Accused of witchcraft – Divorcee – Remarried in Australia – No real economic or other hardship– Credibility issues – Inconsistent evidence

LEGISLATION

Migration Act 1958, ss 5(1), 5H(1)(a)-(b), 5J(1),5J(2)-(6), 36, 36(2)(a)-(c), 65, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who is a citizen of Nepal, applied for the visa [in] May 2014 and the delegate refused to grant the visa [in] November 2015.

3. The applicant appeared before the Tribunal on 30 October 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 RELEVANT LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   BACKGROUND

9. The applicant is a [age] year old woman of Hindu religion from Nepal.  She states that she married in Nepal in 2005 and that she has a [daughter] from that relationship. She claims that she and her husband divorced in June 2015. At the hearing she provided a translation of a document which states that she and her husband divorced [in] June 2015. She married an Australia citizen [in] August 2015.

10. The applicant’s ex-husband and daughter remain in Nepal.  Her parents reside in [another country]. She has two siblings in Nepal and a [sibling] in Australia.

11. The applicant obtained a passport [in] [2013]. She was issued an Australian visitor visa [in] April 2014 and arrived in Australia [in] April 2014.

    SUMMARY OF CLAIMS

12. The applicant claims that she married without the permission of her family and they have disowned her. She claims that she was the victim of domestic violence in Nepal.  She claims that her ex-husband was violent towards her after tests revealed that she was pregnant with a daughter in 2007. Her husband wanted a son and demanded that she terminate the pregnancy, but she refused. She also claims that her parents-in-law blamed her for the death of their grandson in 2013 and accused her of being a witch. Following this they were also violent towards her. She claims that her husband and her in-law will seek to harm and possibly kill her if she returns to Nepal, possibility with the aid of criminals associated with her ex-husband’s brother-in-law. She also claims that she would face hardship if she returned to Nepal because she has no family support.

    DELEGATE’S DECISION

13. The delegate accepted that the applicant had been a victim of domestic violence from her husband and his family in Nepal. However, she noted that according to her evidence during an interview held [in] January 2015, the applicant had separated from her husband about 4 or 5 months before leaving Nepal and lived independently with her daughter in Kathmandu without experiencing serious harm. She also noted that the applicant had stated during the interview that if she returned to Nepal she would divorce her husband and live with her daughter. She also noted that according to information provided in support of her application for a visitor visa she had worked for an organisation in Nepal from 2009 until her departure for Australia and had worked as an [occupation] since arriving in Australia. In these circumstances she concluded that the applicant could again live independently in Nepal and did not face a real chance of suffering serious or significant harm as a result of domestic violence or hardship resulting from lack of family support.

    FINDINGS OF FACT

    Claims and evidence

14. The applicant claims that she married in December 2005 when she was [age]. According to the marriage certificate provided to the Department her husband was [age] at the time. According to her statement dated [January] 2015 they were high school sweethearts and went out together for two years before marrying.

15. At the hearing the applicant said that she was [age] years old and her ex-husband was about [age] when they first met.  She said that her ex-husband was an unemployed high school drop-out at that time. I noted that she had previously stated that they met at school. She said that this was correct, but he had dropped out about one or two months later. I observed that she appeared to have altered her evidence. She repeated that she and her husband had been at school together for about 2 months at the beginning of their relationship.

16. According to the applicant’s protection visa application she attended [School 1] from August 2003 until June 2007. At the hearing I asked how she was able to see her ex-husband if she was attending [school]. She said that [she] had lived with her [siblings] while at school as her parents resided in [another country]. She said that from [2003] until [2005] she kept in contact with her ex-husband by internet and they also met frequently in a number of places in Kathmandu. Her family did not know about the relationship. I observed it was my understanding that teenaged girls in Nepal were unlikely to have the freedom to go out alone and pursue a relationship as she claimed. She said that her family were unaware of the relationship and maintained that her claims were true.

17. In 2005 the applicant and her ex-husband decided to marry. At the time her ex-husband was still unemployed. He told her he was taking [classes]. At the hearing the applicant claimed that she had spoken to her mother about her wish to marry, but her mother did not agree so she ran away and got married. After this her parents and her siblings disowned her.

18. I noted that the applicant had previously stated that her in-laws were very conservative and asked if they had approved of the match. After some confused discussion she said that her ex-husband had spoken to them prior to the marriage and they told him that so long as he was happy it was fine. She said that his parents had not contacted her family to discuss the match. I advised her that it was my understanding that marriage in Nepal was generally arranged by the families of the couple and observed that it seemed unlikely that her former husband’s conservative parents would have agreed to the match if her parents did not approve and there were no arrangements regarding a dowry. She said that it was a love match and they ran away. She added that in [her] culture no dowry was expected as the husband was responsible for everything for the wife.

19. At the hearing the applicant confirmed that she had lived with her in-laws and continued to attend school for two years following her marriage. I asked her if it was usual for married women to continue to attend school. She said that it was unusual, but luckily she had been accepted to study at [School 2]. I asked when she had attended [School 2]. After some confused discussion she said that had finished year [grade] at [School 1] when she was about [age] years old and then enrolled at [School 2], however, she did not study at [School 2]. When asked to confirm that she had ceased attending [School 1] before her marriage she said that this was not correct as she had continued to attend [School 1] for two years after her marriage. I advised her that I had difficulty understanding why she had claimed that she had attended [School 2] if this was not the case. She said that she had been confused and added that she had enrolled at [School 2] when her daughter was about [age], but only attended classes for [a period of time].

20. The applicant said that her husband had initially supported her decision to continue her studies, but this changed after their daughter was born. I asked her who had paid her school fees. She said that she had paid the fees for [School 1] by selling her jewellery and that she had paid for [School 2] fees with money she earned [herself]. She said that she had commenced this work [after] her daughter was born and continued until she left Nepal. She also claimed that she had worked briefly for [an NGO] when her daughter was about [age]  [in about 2010]. 

21. I asked the applicant whether the documents she had provided in support of her visitor visa application were genuine. She said that they were. I noted that the employment certificate she had provided stated that she had worked for [an NGO] from July 2009 until her departure for Australia. She said that she did not wish to comment on this information. I observed that it appeared that the either document was fraudulent or she was not telling the truth about her employment history. She said that she had only worked for [an NGO] briefly.

22. I asked the applicant about her ex-husband’s employment. She said that he had always been unemployed. I noted that this was at odds with the information in the letter he had provided in support of her visitor visa application which stated that he had been employed by [an organisation] since July 2011. She responded that their relationship had not been good at that time and she had not known he was working. I observed that it seemed unlikely that she would not have known if he had been working and asked again whether the information in the letter of support was correct. She said that she thought her husband had lied in the letter. I observed that it appeared that he had done so in order to help her. She agreed that this was correct.

23. I noted that the information regarding employment which the applicant had provided at the hearing was also at odds with information in her protection visa application which indicated that she had not worked following her marriage. The applicant repeated that she had worked in [a certain] industry and also worked briefly for [an NGO].

24. I asked the applicant when she had first experienced problems with her husband and her parents-in-laws. She said that the problems with her husband began after she fell pregnant in 2007 and worsened after her daughter was born. She said that he was frequently violent towards her, particularly when he was drunk. She said that her parents-in-law had always supported their son and had verbally abused her, but it was not until December 2013 when their grandchild died and they accused her of being a witch that they became violent towards her. She showed me a small mark on her [body] which she said was caused by a cigarette burn.

25. At the hearing the applicant said that apart from her husband and her in-laws nobody had been violent towards her, but after her parents-in-law accused her of being a witch people did not have a good attitude towards her.  She said that she had not received any assistance or support from anyone in Nepal as her family had disowned her and the community did not support her. She said that she had gone to the police but they had told her it was a family matter.

26. I noted that the applicant had obtained a passport in [2013] but had not obtained a visa for Australia until April 2014. She said that she had first applied for a visa for herself and her daughter, but this had been refused so she had applied again without including her daughter. She said that her husband had also provided a letter of support for the first application.

27. I asked the applicant what she had intended to do when she arrived in Australia. She said that she had intended to return to her husband in Nepal after visiting her [sibling] in Australia. She said that she had spoken to him daily during the first six months that she was in Australia. She said that she had lived with her husband and he also expected her to return to live with him at the end of her trip. However, after experiencing freedom in Australia and taking advice from her [sibling] she decided to remain in Australia. I observed that this was at odds with her evidence to the delegate when she stated that she had separated from her husband about five months before coming to Australia and had lived with her daughter in a rented room from then until she left for Australia. When asked for comments on this apparent inconsistency she said that she had lived with her husband until she left Nepal and that she did not recall saying that she had separated from her husband prior to her departure.

28. I asked the applicant about her divorce and her relationship with her current husband. She said that she had been thinking of divorcing her husband for some time and had first raised the issue with him about 6 months after she arrived in Australia [about October 2014].He did not agree to begin with, but later changed his mind.  She said that she did not know why her ex-husband changed his mind, but added that he had told her that she had changed while she was in Australia. She said that a friend [had] lodged the divorce documents for her in Nepal and about one or two months later the divorce was granted. According to the papers provided by the applicant the divorce was granted [in] June 2015. She said that nobody in Nepal knew that she had remarried in Australia.

29. I asked the applicant about her daughter’s current whereabouts. She said that she had left her with a friend when she first left Nepal but for the last six months she had been living with her father.  She said that she frequently spoke to her daughter and when she called also spoke to her former husband.

30. I advised the applicant that I had significant doubts about the credibility of her claims. I noted that her evidence regarding the beginning of her relationship with her husband was confused and it appeared that she had changed her evidence when I pointed out that it appeared to be at odds with her earlier submissions.  I observed that her evidence regarding the freedom she had to pursue a relationship with ex-husband while she was only [age] or [age] years old was at odds with my understanding of the situation of girls and young women in Nepal. I observed that the evidence that her parents-in-law accepted the match between her and their son despite the fact that her parents had not given their permission was at odds with my understanding of the situation in Nepal, where I understood that marriages where generally arranged by families. I noted that she had provided confused and contradictory evidence regarding her attendance at school following her marriage. I noted that she had stated that the documents she provided in support of her visitor visa application were genuine, but later indicated that they did not contain accurate information.  I noted that she had given differing accounts of her employment in Nepal to the Department and the Tribunal. Finally and most significantly I noted that she had told the delegate that she had been separated from her husband for about five months before leaving Nepal, but had told me that this was not correct. The applicant said she did not wish to comment on any of these matters.

    Conclusions

31. I do not find the applicant to be a truthful or a credible witness. As pointed out at the hearing, I found much of the evidence she gave at the hearing confused and unconvincing and there are a number of significant inconsistencies in the evidence which she has provided to the Department and the Tribunal.  While some of these issues raised are relatively minor and considered in isolation would not have caused me to reject her claims, others are more significant. For example, at the hearing she changed her evidence regarding what her ex-husband was doing when they met; she provided a confused and contradictory account of which school she attended after she married and, most significantly of all, she has given completely different accounts of her relationship with her husband in the months prior to her departure from Nepal and during the first six months in Australia, telling the delegate that she had separated from her husband some five months before leaving Nepal but telling me she lived with him until she left for Australia and spoke to him daily for the first six months of her time in Australia.

32. After considering all of the relevant evidence, I do not accept that she had given an honest account of her reasons for seeking protection in Australia. On the evidence currently before me I am not satisfied that she was a victim of domestic violence at the hands of her husband or that she was blamed for the death of her husband’s nephew or accused of being a witch and abused by her in-laws. In light of the applicant’s overall lack of credibility I also reject the claim that her family disowned her because she married without their permission. I find that she concocted these claims in order to obtain protection in Australia.

    IS THE APPLICANT A REFUGEE?

1. As discussed above, I do not accept that the applicant was a victim of domestic violence in Nepal at the hands of her husband prior to her departure from Nepal. The applicant is now divorced from her former husband. According to her evidence, he agreed to the divorce.  There is no credible evidence before me which suggests that the applicant’s husband would seek to harm her if she returned to Nepal. I am not satisfied that she faces a real chance of experiencing serious harm as a result of domestic violence from her former husband in Nepal.

2. As also discussed above, I do not accept that the applicant’s parents-in-law blamed her for the death of their grandson or accused her of being a witch or that they were violent towards her prior to her departure from Nepal. There is no credible evidence before me which suggests that the applicant’s parents-in-law would seek to harm her if she returned to Nepal. I am not satisfied that she faces a real chance of experiencing serious harm as a result of domestic violence from her former parents-in-law in Nepal.

3. In assessing the applicant’s case I have also considered the claim that she would experience hardship on return to Nepal because she would have no support from anyone. As discussed above, I do not accept that the applicant’s family disowned her prior to her departure from Nepal. There is no credible evidence before me which suggests that her family would not support and provide for her if she returned to Nepal. Furthermore, while her failure to provide an honest account of her circumstances in Nepal means it is not possible to determine which if any of her accounts of her employment history is correct, it appears that she worked for an [NGO] at some time before coming to Australia which suggests that she would be able to find employment in a similar field if she returned to Nepal. On the evidence currently before me I am not satisfied that there is a real chance that the applicant would face economic or other hardship amounting to persecution for any of the reasons contained in the Convention.

4. Despite having ample opportunity to provide any claims she wished in support of her application for protection the applicant said nothing which suggested that she would be at risk of harm if she returned to Nepal because she divorced her husband and is now married to another man. Nonetheless I have considered the possibility that her status as a divorcee who has remarried would place her at risk of harm if she returned to Nepal. According independent information social stigma against divorced women is high as divorcees can be seen to have contravened family honour. However, the applicant would be returning as a married woman, not a divorcee.  Furthermore, there have been some positive developments in the law and that there are groups which advocate for human rights and provide support for women. The evidence also suggests that rural women are most likely to experience problems resulting from traditional views on the status of women[1]. In these circumstances I am not satisfied that the applicant faces a real chance of experiencing serious harm amounting to persecution on return to Nepal as a result of her status as a divorcee who had remarried.

   [1] On the situation of woman in Nepal see DFAT Country Information Report  21 April 2016; WHR Brief, Status of Single Women in Nepal, January 2017 and  np/beta/wp-content/uploads/2017/01/WHR-Brochure.pdf

5. After considering the applicant’s claims singly and cumulatively, I am not satisfied that she faces a real chance of suffering serious harm amounting to persecution for any of the reasons in the Convention. Therefore I am not satisfied that the applicant has a well-founded fear of persecution now or in the reasonably foreseeable future.

   DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERIA?

6. The applicant’s claims for complementary protection are the same as those put forward in support of her claim for refugee status. As discussed above, I found those claims to be lacking in credibility. I do not accept that she suffered abuse at the hands of her former husband or in-laws for any reason or that was disowned by her family because she married without their permission. There is no credible evidence before me which suggests that she faces a real risk of experiencing significant harm if she returns to Nepal as a result of domestic violence perpetrated by her former husband or in-laws or that she faces a real risk of experiencing significant harm because her family have disowned her.

7. As also discussed above, I have also considered whether her current status as a woman who is divorced from her Nepalese husband and now married to another man would cause her problems on return to Nepal. However, after considering the evidence as set out above, I am not satisfied that the applicant faces a real risk of suffering significant harm on return to Nepal because she divorced her Nepalese husband and married an Australia citizen. I am therefore not satisfied that there are substantial grounds for believing that there is a real risk she will suffer significant harm for this or any other reason, if she is returns to Nepal.

   CONCLUSION

8. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

10. 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

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

    Roslyn Smidt
    Member