1517181 (Refugee)

[2017] AATA 544

1517181 (Refugee) [2017] AATA 544 (21 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517181

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Saxon Rice

DATE:21 March 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 21 March 2017 at 2:38pm

CATCHWORDS

Refugee – Protection visa – Nepal – Political opinion – Maoist demand for donation – Communist Party member – Delay in protection application – Credibility issues – Can relocate to India

LEGISLATION

Migration Act 1958, ss 5A, 5H, 5J, 5K-LA, 36, 65, 423A, 499

Migration Regulations 1994, Schedule 2

CASES
SZUDP v MIBP [2016] FCCA 1640
MIMAC v SZRHU [2013] FCAFC 91

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 [in] November 2015 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] August 2015. The delegate refused to grant the visa on the basis that the applicant had not taken all possible steps to avail himself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the claimant is a national and therefore, the applicant was not owed protection obligations by Australia.

3. This is therefore, an application for a review of that decision.

4. The applicant was given an opportunity to appear before the Tribunal on 7 March 2017 to give evidence and present arguments. The hearing was conducted in the Nepali and English languages and the applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

6. 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 that person holds a protection visa of the same class.

7. 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 because the person is a refugee.

8. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

9. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

10. 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.

    Protection Obligations

11. Subsection 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:

    Protection obligations

    (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

    (4) However, subsection (3) does not apply in relation to a country in respect of which:

    (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

    (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that

    (a) the country will return the non-citizen to another country; and

    (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

    (5A) Also, subsection (3) does not apply in relation to a country if:

    (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

12. This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.

13. The Full Federal Court in MIMAC v SZRHU [2013] FCAFC 91, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

    In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).

    Mandatory considerations

14. 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.

    CLAIMS AND EVIDENCE

    Background

15. When lodging the application to the Department, the applicant stated that he was born in [his hometown]. He stated on the application form that he speaks, reads and writes Nepali and he can write English. He indicated that his religion was Hindu and he identified as ethnic Brahmin. The applicant stated that he was in contact with his family in Nepal on a weekly basis and he listed his occupation as ‘Farming’.

16. The applicant stated that he completed high school in [his hometown] in [year]. From October 2004 to April 2005, the applicant was a shopkeeper in a [shop] and was then unemployed until he arrived in Australia in January 2009. From January 2009 until October 2012, the applicant worked as [occupation] and has been unemployed since he returned to Australia from a visit to Nepal in November 2012.

17. According to details provided in his protection visa application, he first arrived in Australia in January 2009 on a [student] dependent visa.

18. The Tribunal notes that the applicant’s [(dependent)] visa ceased [in] August 2013 and the applicant was an unlawful non-citizen until [date] September 2015.

    Claims

19. The applicant’s claims are summarised as follows:

    ·He is from [Rupandehi] District, Nepal, the [child] of a small farmer. His brother was a member of the Nepal Communist Party but escaped to [country].

    ·After helping his father on the family farm he opened a [business] in [his hometown]. On [date]/10/2004 Maoists demanded a substantial ‘donation’ from him. As he had only just opened his business he could not afford the payment and he went into hiding, moving from place to place.

    ·Maoist cadres were unable to find him but later relatives passed on to him a threatening letter received from the Maoists. He sought refuge at a relative’s place in Kathmandu.

    ·He could not report this to police because they are not able to give him protection in a country like Nepal.

    ·Through his [relative] in Kathmandu he met [his wife] whom he married. They both came to Australia as holders of student visas to further [his wife]’s education.

    ·He returned to Nepal for [number] weeks in September-October 2012 to visit his father who was ill. While he was taking a risk by going to Nepal, he did not go home but went to his relative’s place and arranged for his father to come there.

    ·On his return his marital relationship started to break down leading to divorce.

    ·His life in Nepal is in great danger, exacerbated by the recent earthquakes which have been devastating for his family.

20. The applicant made the following relevant statements in his interview with the department [in] November 2015, set out in the delegate’s decision record which the applicant provided to the Tribunal:

    ·He had been beaten in his shop after he failed to make the payment to the Maoists who had made the demand for money.

    ·He could not reside in India for fear of Maoists who would pursue him over the free and open border between Nepal and India.

    Evidence

21. The evidence before the Tribunal includes the following relevant material:

    ·The completed protection visa form, lodged [in] August 2015, which includes the applicant’s written statements for claiming protection and an additional undated, unsigned, statement of claims.

    ·A photocopy of the applicant’s renewed Nepalese passport provided to the Tribunal which is valid until [2026].

    ·The delegate’s protection visa assessment record (‘delegate’s decision record’) [in] November 2015.

    ·The applicant’s online application for review on 14 December 2015, which included a copy of the delegate’s decision record.

    ·The applicant gave oral evidence at a Tribunal hearing on 7 March 2017.

    ·A submission made by the applicant of untranslated documents [in] March 2017 and their English translation received by the Tribunal on 15 March 2017.

22. The Tribunal notes that the applicant’s departmental file includes a certificate and notification regarding the disclosure of certain information under s.438 of the Act. The reason given for why disclosure of the information subject to the certificate would be contrary to the public interest is that the folios contain information relating to ‘internal business of the department’. The information subject to the certificate includes internal departmental information accompanying the applicant’s previous request for Ministerial intervention.

23. The Tribunal gave consideration to the validity of the certificate and on the basis that a public interest reason has not been identified for the relevant folio, finds the certificate invalid. The Tribunal provided the applicant with a copy of the certificate at the hearing and advised him of its finding that the certificate is invalid. The information was considered relevant to the review and was discussed with the applicant in accordance with s.424AA procedure as outlined below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of reference

24. The applicant claims and the Tribunal is satisfied on the basis of the personal details provided, that he is a Nepalese national. Nepal is therefore the receiving country for the purpose of assessing the applicant’s claim for protection.

    Tribunal hearing

25. At the Tribunal hearing, the applicant told the Tribunal that the statement of claims he made following his protection visa application still accurately reflected his claims for protection. The applicant confirmed that his claims related to his imputed political opinion being anti-Maoist and that he was forced to pay a ‘donation’ to Maoists as a business owner in October 2004 (2061/07 in the Nepali calendar) but he was beaten when he could not pay. He went into hiding and moved from place to place and was threatened by the Maoists by letter in April 2005. Police are unable to protect him and his life is in danger, exacerbated by the recent earthquakes. The Tribunal asked the applicant if this was the totality of his claims or whether there was anything he wished to change or add. The applicant said that the main thing is his fear for his life because there is danger in his life and the earthquake was secondary.

26. The Tribunal asked the applicant about his education and when he completed high school. The applicant said he thought he finished school in [year]. The Tribunal noted that the applicant would have been [age] in 1991. The applicant said he finished ‘Intercollege’ in [year]. The Tribunal asked the applicant if he did any study after he finished school. The applicant said he repeated some years. The Tribunal noted that the applicant’s protection visa application stated that he completed high school in [year] and asked the applicant if he finished high school in [that year]. The applicant said he was confused and he couldn’t remember. He said he went to work with his father as a farmer and then he established his [business] in October 2004. The applicant confirmed he had this business for approximately 7-8 months. Later, the applicant said he had this business for 4-5 months. It was at this time that he started receiving threats from Maoists. When he no longer had the business, he was supported by friends and relatives in Nepal until he came to Australia in 2009.

27. The Tribunal asked the applicant about his family. The applicant said his brother moved to [country] in 2047 or 2048 in the Nepali calendar (1991-1992) because of his political opinion. The Tribunal asked the applicant to confirm that his address in Nepal before coming to Australia was in [location], as outlined in his protection visa application. The applicant provided a vague and confusing account of where he was born and suggested that [location] was where his shop was, not his family home. The applicant then stated that his mother and father continue to live in the family home which is the same location as the farm and this is approximately half an hour by motorbike or car from the location of where his shop was. The applicant also said he has a [relative] in Australia that he lives with and he has been supporting himself in Australia by [working] for friends and relatives.

28. The applicant told the Tribunal that it is free to go to India and he used to go there for shopping. In relation to his [business] in Nepal, he used to go to India twice per month to source [goods] for his business. The applicant confirmed that he would have been to India at least [number] times. He could not recall his last visit to India because he said there were tensions of the donations money and he was distressed and while he closed the shop in April 2005, he was then hiding so he could not remember when his last visit was.

29. The Tribunal asked the applicant what he fears in returning to Nepal. The applicant said that there is still threatening in relation to donation money. He said there have been incidents in the name of Maoists and others are taking advantage and demanding for donations. The Tribunal clarified that the applicant fears Maoists and others demanding donations if he returns to Nepal. The applicant agreed. The Tribunal asked the applicant if there is anything else he fears in returning to Nepal. The applicant said he fears a recent incident of Durga Tiwari, a man who was shot in the daytime. The Tribunal asked the applicant why this was relevant to him. The applicant said it was relevant because this person was associated with the Communist Party and he thought he was the president of the student union. The Tribunal again asked the applicant why this was relevant to him. The applicant said that he was also associated with the Communists and he was a member of the Communist Party Nepal – UML. He said he became a member when he was studying at ‘Intercollege’ in [year] or [year] in the Nepali calendar ([year] or [year]) which was for [number] years after school.

30. The Tribunal noted that earlier in the hearing, the applicant had told the Tribunal he had not done any study after school but rather, he repeated a couple of years and asked the applicant if he could explain this difference. The applicant said he was not sure whether he was [age range] or [age range] when he finished school but he thought he might have been [age] and then he went to ‘Intercollege’ and he finished there in [year]. He said that he joined the party in 2045 (1989) until 2055 (1999) but he didn’t renew his membership after this because he was not interested in politics and helped his father in farming. The Tribunal asked why he joined the party if he was not interested in politics. The applicant said that he was interested but later, he was more concerned about his family as his brother was not there. The Tribunal asked the applicant if he would become a member of the party again if he returned to Nepal. He said no, he was not that interested in politics now.

31. The Tribunal asked the applicant why he had not mentioned that he was a member of the Communist Party or any fear of returning to Nepal on this basis in his protection visa application or his interview with the Department and the Tribunal outlined its obligations in relation to new claims in accordance with s.423A. The applicant said there was no reason. He said the Department did not ask him about it so he did not say anything. The Tribunal also noted that at the beginning of the hearing, he had told the Tribunal that his statement was still an accurate reflection of his claims and he confirmed he had nothing to change or add. The applicant said he didn’t say anything because he didn’t notice he had to add this claim. The applicant said he did not have a reason why he had not raised this claim previously because he was not interested in politics so he didn’t raise the issue of politics. The Tribunal noted that he had raised the issue of politics because his central claim was that his fear was based on being anti-Maoist and demands for donations. The applicant said that more than being anti-politics, he felt that there is a threat of demanding donations and he feared for his life.

1. The Tribunal outlined its concerns in relation to the applicant’s explanation about the new claim and the applicant said that he was not that actively involved in the Party, he was just a member for [number] years. The Tribunal asked why he would fear returning to Nepal on the basis of membership of the party some time ago. The applicant said that his fear was that he would be unable to pay donations to Maoists and there are parties taking advantage in the name of Maoists these days and they are conducting it like a business and threatening people and these incidents are still happening. The Tribunal asked the applicant why he would be targeted. The applicant said they want to take revenge and they are taking advantage in the name of Maoists and they will kill him or he will be disabled. The Tribunal asked again why the applicant would attract this and noted that it has been more than 12 years since the donation request and while he claims to have been beaten, he also continued to live in Nepal for more than 4 years after that before coming to Australia without further incident. The applicant said that such incidents are happening right now and if they weren’t, he would have no fear. He said it is like a business and there are bad people.

2. The applicant told that Maoists only made one donation demand of him in 2004 and no demands were made of him or his family in relation to the farm. He said he never paid the Maoists any money because he couldn’t afford it. The Tribunal asked the applicant about the incident when he was beaten. The applicant said they came around [at night], he was at home and he asked for time and he told them they would get their money. He said he then had to run around hiding and he received a threatening letter in 2005 that said that because he didn’t pay, they were going to physically punish him. The Tribunal asked the applicant again about the incident when he was beaten. The applicant was vague and said they attempted to kill him but he told them he would give them money. Following further questioning, the applicant then said that his mother and father were home at the time but his father was in a separate room and they were only targeting him. His father did not come to help him and this may have been because he was afraid. He said he was dragged so he had some scratches and they beat him around the shoulders and pointed a gun at him. He told them he would give them the money and they left. He did not go to hospital because it was not that bad and his mind was not working very well but he did go for a check-up the next day.

3. The Tribunal noted that the delegate’s decision record states that he had said he was beaten in his shop and not at home and asked the applicant if he could explain this inconsistency. The applicant said the shop and home were the same, the other place was in the village and he would stay at both. The Tribunal noted that at the beginning of the hearing, the applicant had told the Tribunal that his shop was half an hour by motorbike of car from his home but this also did not explain why his mother and father were home when he was beaten. The applicant then claimed that his mother and father were living with him at the shop as they were renting out part of their farm. The Tribunal noted that he had not mentioned different addresses in his protection visa application and the scenario that his parents lived with him at the shop when he only had the shop for a number of months did not sound very plausible. The applicant said they had rented out 50% of the farm so they lived together at the shop. The Tribunal asked the applicant if his parents were also living at the shop when he was on the run. The applicant said that he closed the shop and his parents went to live with his father’s in-laws to stay with them and then returned to the farmhouse.

4. The Tribunal asked the applicant where he was living when he was on the run. The applicant said he lived with a relative in Kathmandu and later, when he was married, he lived with his in-laws, also in Kathmandu. The applicant said he was not found when he was in Kathmandu. The Tribunal asked if he would seek to open another business in Nepal if he returned. The applicant said that he would see if “time favours” but he had not considered it yet.

5. The Tribunal outlined that the DFAT Country Information Report for Nepal acknowledges that here are widespread reports of threats against businesses throughout Nepal and that threats such as coercion, extortion and forced donations, as well as kidnappings or coercion to join political parties, have been identified as the most common forms of mistreatment. However, credible sources told DFAT that the most common occurrence – forced donation – was generally seen as part of ‘doing business’ in Nepal. The practice reflects the intensely political nature of Nepali society and is confronted regularly by business persons. It also reflects the inability of Nepali political parties to formally and directly raise funds to support their activities. On this basis, DFAT assesses that while businesses themselves may be targeted, individual members of the private sector are ordinarily free from harassment and intimidation.

6. The Tribunal also outlined that DFAT’s report also acknowledges that a diverse and competitive array of political parties operates in Nepal and the system has faced considerable instability in recent years. However, DFAT also states that at the time of publication in April 2016, 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.

7. The Tribunal asked the applicant if he would like to comment on this information. The applicant said money is being collected in the name of Maoists and they might be wanting to seek revenge so he feared for his life in returning to Nepal.

8. The Tribunal asked the applicant why he returned to Nepal in 2012 if he feared for his life. The applicant said that his father was very sick. His father had an [operation] and it was a life or death situation. He said he was planning to be in Nepal three months but only stayed for [number] weeks. The applicant said he visited his father at a relative’s place and he had earlier told the Tribunal that his relative’s place was in [location], approximately 22km from [his hometown]. The Tribunal noted that if his father was in a life and death situation that it did not seem plausible that the applicant bought his father to his relative’s place so he could see him there. The applicant said his father was transported by a vehicle to his relative’s place and this was approximately 22km away from his shop. The Tribunal asked the applicant if Maoists found him when he returned in 2012. The applicant said he made arrangements for his father to go to his relative’s house and they took him at night. The Tribunal asked the applicant again whether Maoists found him when he returned in 2012. The applicant said he did not appear in public. The applicant also confirmed he was safe when he was living in Kathmandu for 4 years prior to coming to Australia in 2009.

9. The Tribunal also asked the applicant what his concern was in relation to the recent earthquakes in Nepal and his fear of returning. The said his farm had been affected and the house had been cracked on one side. He said he was just indicating it was a problem that his father was sick and his house was cracked but he feared for his life mostly.

10. The Tribunal noted that in his protection visa application, the applicant had indicated that he had a donation receipt and the letter of threat that he would provide later and asked the applicant why it did not appear that he had provided these to the Department or the Tribunal. The applicant said he thought his representative had sent the documents through. The Tribunal noted its concern that the documents did not appear to have been provided in more than 18 months since he submitted his protection visa application and the applicant had not referred to the documents throughout the Tribunal hearing. The applicant said he thought he had referred to the documents. The Tribunal also asked the applicant why he would have a donation receipt when he told the Tribunal that he had not made any payment to the Maoists. The applicant said it was in an envelope and an activist left it at the shop. The applicant described the document as something more like an invoice and said it looked like a receipt so that’s why he referred to it that way. The applicant said he could provide the documents in less than a week. The Tribunal noted that if his representative had the documents, there should be no reason why they could not be sent immediately and also advised the applicant that given it had been more than 18 months that the applicant could have provided the documents, the Tribunal would have to consider what weight it would place on any documents provided after the Tribunal hearing.

11. On 10 March 2017, three days after the hearing, the Tribunal received a submission of two documents in the Nepali language and a request for additional time to have these documents translated. The Tribunal agreed to the applicant’s request for additional time to provide a translation and the Tribunal received the accredited English versions of the documents on 15 March 2017. The documents include a ‘donation receipt’ for the sum of Rs.[amount] from the Unified Communist Party of Nepal (Maoist) dated [in] October 2004 and ‘letter of threat’ from the Unified Communist Party of Nepal (Maoist) in relation to physical action to be taken against the applicant for failure to pay the demand for donation dated [in] April 2005. In light of the Tribunal’s concerns outlined above, the Tribunal places little weight on this evidence.

12. The Tribunal put to the applicant that, Nepali nationals can readily enter and reside in India under the Treaty of Mutual Friendship and ongoing administrative arrangements, without a visa or further formality and outlined DFAT and other country information in this regard. The Tribunal noted that it therefore appeared that, he is able to enter and reside in India. 

13. The Tribunal then outlined the provisions of s.36(3) of the Migration Act, noting that in determining whether these provisions apply, relevant considerations included whether he is able lawfully to enter and reside in India either temporarily or permanently; whether he has taken all possible steps to avail himself of that right; and whether he would face there a real chance of persecution or a real risk of significant harm.

14. The applicant was asked if there was any reason why he could not avoid problems in Nepal by living in India. The applicant had earlier told the Tribunal that he was aware of the free movement between Nepal and India and said he used to go to India for business. However, he referred to discrimination between Indians and Nepalese and said that if Indians earn Rs.200,000-300,000 then Nepalese only get Rs.5,000-6,000 so even if there is a good Treaty, there is still discrimination. The applicant agreed that many people move to India but he said he had friends that had been through bad treatment. He also said that because of the free border, the people who are threatening him could also get there to attack him after knowing that he was there. The Tribunal noted that they had not followed him when he was travelling to India for business previously and asked the applicant how anyone would know he was in India and why he thought they would be motivated to seek him out in India. The applicant said that because people were moving in and out, they would find him. He said they would not seek him out but they would eventually find him and he did not have anyone in India.

15. The Tribunal asked the applicant why he thought they could find him in a country of more than one billion people. The applicant said he had many friends that struggle in India and they come back to Nepal. He said that when you don’t have people there, the Indians will dominate and he wouldn’t find it a safe place because he doesn’t have his people there. The Tribunal asked the applicant why this would matter given he had also moved to Australia and he did not ‘have his people’ in Australia. The applicant said Australia is a safe place and in India, human rights are not protected.

16. The Tribunal asked the applicant why he thought he would be at risk in India. The applicant said that because of the free border and [his hometown] is near to the border with India he would not feel secure. Even if ‘they’ were not pursuing him, ‘they’ have their gangs and they might not know for 1-2 years but they will eventually find him.

17. The Tribunal noted that it had consulted a range of sources which referred to the rights of Nepalese in India, including in relation to employment, property purchase and access to education and health services. The Tribunal had found no reports indicating that Nepalese in India are targeted for serious or significant harm.  Nor had the Tribunal found any information to suggest that Nepalese or Indian Maoists target Nepali migrants in India or that Nepalese Maoists cooperate with Maoists in India to pursue, identify and target persons they have previously threatened in Nepal.

18. The Tribunal acknowledged that anyone in a different country may perceive discrimination against them. However, the Tribunal noted that according to India scholar Dr Subhakanta Behera, “in the Indian context, Nepalis are not perceived as ‘alien’. They have become just like other Indian nationals within the broad framework of the Indian federation. It can therefore be argued that the Nepali identity already exists as a sub-stratum of the Indian identity.”[1] The Tribunal also noted that according to the Netherlands-based Institute of Social Studies, “Nepal and India share a peculiar relationship from ancient ages. They share the similar culture, the Hindi language of India is easy to understand and learn to the Nepali citizen”.[2]

    [1] Dr Subhakanta Behera, Trans-border identities – a study on the impact of Bangladeshi and Nepali migration to India, May 2011. < Raju Bhattrai, Open borders, closed citizenships: Nepali labor migrants in Delhi, 1 October 2013. <

19. The Tribunal asked the applicant if he would like to comment on this information. The applicant said that there are lots of Nepalese in India but again asserted that new people would face difficulties for security, there is no guarantee of his safety. Friends have struggled and they have gone back to Nepal and without ‘his own people’ he would find it difficult for work. The Tribunal noted that the applicant had a business and employment history that could assist him in getting a job. The applicant said he used to go to India to get items to sell for his business but he did not have much idea about work and he would have no one to help him get a job.

20. In relation to the Tribunal’s assertion that Maoists had not followed or found the applicant in India when he was travelling there previously, the applicant claimed that he only went to India once or twice after the donation demand was made and he wasn’t required to pay the money immediately. It was also sometime after the demand was made that he was beaten.

21. The Tribunal also noted that the applicant first arrived in Australia in January 2009. He returned to Nepal in 2012 and he was unlawfully in Australia for a period of more than 2 years. The Tribunal also noted that it was now more than 12 years since the first and only donation demand was made of him and while he claims to have been beaten, he was also able to live in Kathmandu safely for more than 4 years before coming to Australia. The Tribunal noted that the applicant’s history in Australia suggests that he was in contact with the Department of Immigration given the number of applications he had made and asked the applicant why he did not apply for protection some six years after first arriving in Australia. The applicant said that his wife was a student and she said she would finish her study and they would settle it that way. He said that he thought that only people who come by boat can apply for a protection visa. The applicant also said that he had a divorce recently (in 2013) and he applied for a student visa and he had big tensions and his mind was not working properly. The Tribunal noted that it was still some 2 years after his divorce before he applied for a protection visa and he was clearly in contact with the Department. The Tribunal asked the applicant if he asked the Department about protection visas. The applicant said he had no one to give him that advice. The Tribunal noted that delays in applying for a protection visa can cause the Tribunal to doubt the credibility of the claims being made. The applicant said his mind was not working properly so he applied for a student visa and he had no one to advise him.

22. The Tribunal put the following information to the applicant for the purpose of s.424AA of the Act. Information in the applicant’s departmental file includes the following:

23. Internal departmental information (the subject of the s.438 certificate, the Tribunal has found invalid) accompanying the applicant’s earlier request for Ministerial intervention states that the Department wrote to the applicant in September 2014 advising him to regularise his immigration status given he had been unlawful for almost one year. The Department states that it did not receive a response from the applicant.

24. The Tribunal outlined that this information is relevant because it could cause the Tribunal to doubt the credibility of the applicant and invited the applicant to comment or respond. The applicant was offered, but did not seek, additional time to respond and stated that at that time, he had the divorce, everything was scattered, he could not think properly and he had no one to give him advice. It was his mistake.

25. The Tribunal asked the applicant if there was anything else he would like to make the Tribunal aware of in relation to his claims. The applicant said there are incidents right now where they are killing people. People are conducting business in the name of Maoists and it hadn’t been two months since the incident of Durga Tiwari. He feared he would be targeted because they have this business and it was a big threat in [his hometown] where they ask for donation money and he has a big fear about this. The Tribunal again noted that the applicant had said he was safe in Kathmandu and asked why he could not return to Nepal and live in Kathmandu. The applicant said that all his property and the farm was in [his hometown] in his village in Rupandehi. He said he wanted to get protection and security in Australia and if he goes back to Nepal, they will try to take revenge and he feared for his life.

    FINDINGS AND REASONS

26. It will be evident from the above record of the review hearing that the Tribunal has strong reservations about aspects of the applicant’s claims.

27. It was apparent that the applicant’s stated concern about Maoists in Nepal related to a single demand for a donation in 2004 from a business the applicant had for a number of months during 2004-2005 and any problems would arise only locally in the applicant's own village in relation to his former business. The applicant acknowledged that he was unable to be found when living in Kathmandu.

28. The Tribunal was also not satisfied by the applicant’s explanation that he “had no reason” why he had not raised his new claim that he feared returning to Nepal on the basis of his former membership of the Communist Party Nepal. On this basis, the Tribunal is required to draw an inference unfavourable to the credibility of this claim.

1. Consistent with the foregoing, the applicant’s lengthy delay in formally seeking protection in Australia (more than six years after he first arrived in Australia and almost three years since he had last visited Nepal and long after the matters giving rise to his claimed fears had arisen) indicates that the applicant does not have a genuine fear precluding his return to Nepal.

2. The Tribunal has also had regard to the Refugee Law Guidelines to the extent that they are relevant to the decision under review. However, in accordance with SZUDP v MIBP [2016] FCCA 1640 at paragraph 50, it is open to the Tribunal to deal with the application by considering the application of s.36(3) of the Act without first determining whether any of the criteria in s.36(2) have been satisfied. Therefore, for reasons concerning the availability to the applicant of safe third country protection the Tribunal has not found it necessary to reach conclusions as to whether Australia has protection obligations towards the applicant under the ‘refugee’ criterion or ‘complementary protection’ grounds based upon his claimed fear of returning to Nepal.

   Third country protection

3. The primary issue in this case is whether Australia does not owe protection obligations to the applicant because he has a right to enter and reside in India within the meaning of s.36(3). There is no suggestion that the applicant has a right to enter and reside in a third country other than India.

4. The matters which must be considered by the Tribunal in determining whether third country protection is available to the applicant are:

   ·    whether the applicant, a citizen of Nepal, has a right to enter and reside in India (s.36(3));

   ·    whether he is at risk of Convention-related persecution or ‘significant harm’ in India (s.36(4));

   · whether the Indian authorities might return him to Nepal or another country where he is at risk of Convention-related persecution or ‘significant harm’ (s.36(5) and s.36(5A)); and

   ·    if he has a right to enter and reside in India, whether he has taken all possible steps to avail himself of that right.

   Whether the applicant has a right to enter and reside in India

5. The Full Federal Court in considering an appeal from the Federal Magistrates Court in relation to MIMAC v SZRHU [2013] FCAFC 91 held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

6. The starting point for consideration of whether the applicant has a right to enter and reside in India is the Treaty of Peace and Friendship between India and Nepal 1950 (the Treaty). Articles 6 and 7 of the Treaty are the most relevant for present purposes.  These two articles concern the treatment to be given to the nationals of one country in the territory of the other.  Importantly, Article 7 grants to Nepalese nationals in India and Indian nationals in Nepal ‘the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature’.

7. The Treaty itself does not deal with the rights of Nepalese nationals to enter India (and vice versa) but rather concerns their treatment once in India.  It is therefore necessary to turn to other sources to further examine the right of entry question.

8. Information provided by the Australian Department of Foreign Affairs and Trade (DFAT) and contained on the website of India’s Bureau of Immigration is to the following relevant effect:[3]

   A citizen of Nepal entering India by land or air does not require a passport or visa for entry in India.

   A citizen of Nepal while travelling by air between Nepal and India is required to show any of the following valid identity documents to establish his/her identity as a Nepalese citizen:

   ·     Nepalese Passport.

   ·     Nepalese Citizenship Certificate.

   ·     Voter's Identification Card issued by the Election Commission of Nepal.

   ·     Limited Validity photo-identity certificate issued by Nepalese Missions in India when deemed necessary.

   A citizen of Nepal must be in possession of a Passport when entering India from a place other than Nepal.

   A citizen of Nepal in possession of a valid Nepalese passport flying direct from Australia could gain entry to India.

   [3] Department of Foreign Affairs and Trade 2013, DFAT report – India: Information request IND42609, 18 September 2013; Bureau of Immigration, Ministry of Home Affairs, Government of India at

9. The applicant has a valid Nepalese passport.

10. DFAT advises that unlimited stay is granted to Nepalese nationals in India and there are no restrictions on their ability to remain, reside or work in India.[4]  Other reports confirm that Nepalese citizens may reside, work, attend school and access health services in India.[5] A BBC report from 2008 states: “Over five million Nepalese people work and own property in India.”[6]  A policy paper in 2011 estimated that some 10-12 million ‘Nepalis’ live in India.[7] This latter figure includes both migrants from Nepal living in India and Nepali speaking Indian citizens.

    [4] Department of Foreign Affairs and Trade 2013, DFAT report – India: Information request IND42609, 18 September 2013

    [5] Immigration and Refugee Board of Canada 2008, Nepal/India: Nepali citizens living in India; whether they are legally entitled to reside, work, attend school, and access health care services; whether there are any repercussions for "illegal" residence, or whether illegal status is tolerated or ignored by Indian authorities, ZZZ103009.E, UNHCR Refworld, 18 December

    [6] BBC News, 15 September -

    [7] Behera, S 2011, Trans-border Identities (A study on the impact of Bangladeshi and Nepali migration to India), Indian Council for Research on International Economic Relations, May, p.9

11. It seems that there is a shifting population between the two countries and ‘free border movement between Nepal and India has led to transnational social networks, by which people sustain contacts between families in Nepal and migrants in India’.[8] Various sources state that here are sizeable Nepalese communities particularly in India’s north eastern states.[9] Urban centres such as Delhi, Mumbai and Bangalore are also popular destinations for Nepalese migrants.[10]

    [8] Thieme, S and Müller-Böker, U 2010, ‘Social networks and migration: Women’s livelihoods between Far West Nepal and Delhi’, European Bulletin of Himalayan Research, Special double issue: Nepalese migrations, The Nepal Research Group, Autumn 2009–Spring 2010, p. 110

    [9] Behera, S 2011, Trans-border Identities (A study on the impact of Bangladeshi and Nepali migration to India), Indian Council for Research on International Economic Relations, May, p.4; South Asia Terrorism Portal n.d., Communist Party of Nepal – Maoist Thieme, S and Müller-Böker, U 2010, ‘Social networks and migration: Women’s livelihoods between Far West Nepal and Delhi’, European Bulletin of Himalayan Research, Special double issue: Nepalese migrations, The Nepal Research Group, Autumn 2009–Spring 2010, pp. 107-121

Taking into account the terms of the Treaty itself, the information from Indian and Australian authorities about the administrative arrangements concerning entry to India by Nepalese nationals and the country information and other commentary on the ability of Nepalese citizens to enter and reside in India, the Tribunal is satisfied that that the applicant has a right to enter and reside in India.

While the applicant indicated that he was aware of the free movement of people between Nepal and India, he advised the Tribunal that he has not sought to enter and reside in India.

Risk of Refugees Convention-related persecution or of ‘significant harm’ in India

Subsection 36(3) of the Act will not apply if the applicant has a well-founded fear of Convention-related persecution in India or there are substantial grounds for believing that, as a necessary or foreseeable consequence of him availing himself of his right to enter and reside in India, there would be a real risk that he will suffer significant harm (s.36(4)).

The applicant stated at the hearing that, while he would be able to enter India, he would be at risk there because the people threatening him would find him and he feared for his safety. He said that [his hometown] was near the Indian border and while he later claimed that the Maoists would not seek him out, they would still be able to find him. He said that while there are many Nepalis in India, new people would face difficulties for security.

There are Maoist groups in both India and Nepal. There is evidence of some historical linkages between Nepalese and Indian Maoist groups and there is an ongoing Naxalite[11] (Maoist) presence in central and eastern India, (although the UK Ministry of Home Affairs notes that there was a decline in violence perpetrated by Maoists in 2012-2013[12]).  Although the South Asian Terrorism Portal (SATP) reports: ‘According to available information, the Maoists of Nepal have well-established linkages with Indian left-wing extremist organizations, primarily with the People’s War Group (PWG) and Maoist Communist Centre (MCC)’, [13] the Times of India reported recently that, since 2006, when the Maoists joined the government in Kathmandu, links between communist parties in India and Nepal have declined.[14]

[11] UK Home Office 2012, Country of Origin Information Report – India, 30 March, p.21

[12] Ministry of Home Affairs (Government of India) 2013, Annual Report 2012-2013, p.23

[13] South Asia Terrorism Portal n.d., Communist Party of Nepal – Maoist

[14]Chatterjee, M 2012, ‘Split in Nepal Maoist party will revive relations with CPI (Maoist)’, The Times of India, 2 July

The Tribunal has found no information to indicate that Nepalese or Indian Maoists target Nepalese migrants in India.  In particular, no information was located which indicates that Nepalese Maoists, now or recently, cross the border into India to pursue, identify and target persons they have previously threatened in Nepal.  No information was located which indicates that Nepalese living in India are currently, or have been recently, targeted by political opponents because of their association with Nepalese political parties or groups.[15]  In the circumstances of this case, the Tribunal is satisfied that Nepalese Maoists will not search for or target the applicant in India. The Tribunal also notes that the applicant claimed he previously travelled from [his hometown] to India after the donation demand was made without incident and he was also unable to be found for more than four years in Kathmandu.

[15] Sources consulted included country of origin information databases available to the DIBP and the AAT, FACTIVA and Nepal/India based news sources, JSTOR and other scholarly sources, security-focused subscription websites Stratford and the Jamestown Foundation’s Militant Leadership Monitor, and other web-based research.

The Tribunal is not aware of any country information that would suggest that Nepali citizens newly arrived in India would face difficulties regarding security. In particular, the Tribunal notes country information that suggests that relations between Nepal and India are strong and as outlined to the applicant during the hearing, the Prime Ministers of India and Nepal welcomed the open border and free movement of people between their two countries and identified it as a ‘very unique feature of their relationship’ as recently as February 2016.[16] This, together with other country information outlined above indicates to the Tribunal that there is strong commitment to all aspects of the reciprocal right to enter and reside between these two countries and nothing to indicate that security is a particular problem for Nepali citizens newly arrived in India.

[16] Department of Foreign Affairs and Trade, Thematic Report: India-Nepal Treaty of Peace and Friendship: Rights of Nepalis in India, 22 December 2016, p. 4.

The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for reasons relating to his imputed political opinion or that there is a real risk that he will suffer significant harm in India.

The applicant also claimed that he would not have ‘his people’ in India, he would find it difficult to get work, Indians would dominate and discriminate against Nepalese and he would earn less than Indians.

While there is some evidence of discrimination and hardship which may be faced by Nepalese migrants in India, particularly those who do not have identity cards and are in low paid jobs,[17] the Tribunal has found no reports that Nepalese in India are the subject of systematic discrimination or hardship that can be characterised as serious or significant harm. According to a 2011 report, Nepalese resident in India have established institutions and socio-cultural practices[18]. Taking the country information as a whole, the Tribunal does not accept that the treatment of Nepalese in India is such that the mere fact of being a Nepali citizen in that country gives rise to a well-founded fear of persecution for a Convention reason, or a real risk of significant harm.

[17] Bhattrai, R 2010, Email to RRT Country Advice: Re: Request for information from the Refugee Review Tribunal, 24 August; Samuels, F et al. 2011, Vulnerabilities of movement: cross-border mobility between India, Nepal and Bangladesh, Overseas Development Institute website, November

[18] Behera, S 2011, Trans-border Identities (A study on the impact of Bangladeshi and Nepali migration to India), Indian Council for Research on International Economic Relations, May, p.3

The Tribunal notes the applicant’s claim of discrimination in relation to the income-earning ability of Nepalese in India compared to Indians. While the applicant may earn a reduced income in India, the Tribunal still considers the cumulative weight of country information set out above, including that millions of Nepalis are living and working in India and there are no restrictions on their ability to do so, to be persuasive. Therefore, the Tribunal is not satisfied that any reduced income the applicant may comparatively experience in India amounts to a real chance of significant economic hardship that threatens a person’s capacity to subsist or a denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. In addition, the Tribunal is not satisfied that any reduced income the applicant may comparatively experience in India amounts to a real risk of cruel or inhuman treatment or punishment.

As outlined to the applicant during the hearing, the Tribunal is not satisfied of the applicant’s claim to fear harm in India on the basis of ‘not having his people’ given this was also the case when he arrived in Australia. Country information outlined above indicates that the applicant would have a right to work in India and access a range of services. While personal contact may be of assistance in the search for employment, the Tribunal is satisfied that the applicant has considerable employment history and skills that would assist him to avail himself of his right to work in India, similar to how he has managed to do so since he has been in Australia.

In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of Convention-related persecution in India or that there are substantial grounds for believing that, as a necessary or foreseeable consequence of him availing himself of his right to enter and reside in India, there would be a real risk that he will suffer significant harm. The provisions of s.36(3) are therefore not excluded on this basis.

Whether the Indian authorities might return the applicant to Nepal or a third country

The Tribunal must also consider whether the applicant has a well-founded fear that India will return him to Nepal or another country where he will be persecuted for a Convention reason or there is a real risk he will suffer significant harm.

Advice obtained from DFAT states that Nepalese nationals already in India can be forcibly removed if convicted of a crime in either Nepal or India.  The advice also states that if a Nepalese national commits a crime in Nepal and travels to India, the Nepalese police can request the assistance of the local Indian Police to arrest the person.  The Nepalese Police will then travel to India to escort the Nepalese national back to Nepal.  There are also provisions which allow for the deportation of Nepalese nationals from India to Nepal after the completion of their sentence for a crime committed in India.[19]  The applicant indicated in his protection visa application and confirmed at the hearing that he has not been convicted of any crime, and there is no suggestion that he would engage in criminal activity in the future.

[19] Department of Foreign Affairs and Trade 2013, DFAT report – India: Information request IND42609, 18 September 2013.

The advice from DFAT identifies criminal activity as the sole reason that the authorities in India would return a Nepalese national resident there to Nepal.  There is no other independent information before the Tribunal to suggest that the Indian authorities could or would return a national to Nepal for any other reason. 

The Tribunal is not satisfied that the applicant has a well-founded fear that India will return him to Nepal, his country of nationality.  Nor is there anything to suggest that the Indian authorities would send the applicant to a country other than Nepal, his country of nationality.

Whether the applicant has taken all possible steps to avail himself of his rights in India

For the reasons set out above, the Tribunal is satisfied that the applicant has a right to enter and reside in India and that he is not subject to the qualifications in s.36(4), s.36(5) or s.36(5A) of the Act. Although he has previously entered India, he has not taken any steps to continue to avail himself of his right to enter and reside in India.

CONCLUSIONS

The Tribunal finds that the applicant has a right to enter and reside in India and has not taken all possible steps to avail himself of that right.

Furthermore, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in India and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm in India.

The Tribunal further finds that the applicant does not have a well-founded fear of being returned from that country to a country where he has a well-founded fear of being persecuted. Nor does the applicant have a well-founded fear of being returned by India to a country where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm.

Accordingly, Australia does not have protection obligations in respect of the applicant.

DECISION

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

Saxon Rice
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (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 family

For 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 family

For 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.

…