1517184 (Refugee)

1517184 (Refugee) [2017] AATA 382 (1 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1517184
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Saxon Rice
DATE:1 March 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 March 2017 at 3:49pm
CATCHWORDS
Refugee – Protection visa – Nepal – Particular social group – Separated couples – Fear of family reaction – Loss of family support – Nepal earthquake – Homelessness

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] November 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Nepal, applied for the visa [in] 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.
This is therefore, an application for a review of that decision.
The applicant was given an opportunity to appear before the Tribunal on 24 February 2017 to give evidence and present arguments. The hearing was conducted via video conference in the Nepali and English languages and the applicant is not represented in this matter.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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.
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).
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.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Background
When lodging the application to the Department, the applicant stated that he was born in Kathmandu. He stated on the application form that he speaks, reads and writes Nepalese and he can read English. He indicated that his religion was Hindu and he was married in Kathmandu [in] December 2008. He stated that he had no contact with relatives outside of Australia.
The applicant stated that he completed high school in Kathmandu in [year]. He did not provide any information in relation to his employment history.
The applicant said his family consisted of his parents [and siblings], all of whom were resident in Nepal.
The applicant holds a Nepalese passport issued in 2007. According to details provided in his protection visa application, he first arrived in Australia [in] July 2009 on a [temporary] visa. The applicant also stated that he transited through [another country] on his way to Australia and has not previously visited any other countries.
The Tribunal notes that the applicant’s [temporary] visa ceased [in] May 2011.
Claims
The applicant made the following claims in his protection visa application, including in an undated, unsigned, hand-written statement attached to his application:
He and his wife came to Australia in 2008 with the well wishes of his family.
They lived together in [City 1] but he had to search for work outside of [City 1] in order to pay for his wife’s [expenses].
He stayed in contact with his wife by phone and Skype but slowly his wife contacted him less and then she changed her number and blocked him from Skype and all social networks.
He went back to [City 1] in search of his wife but he didn’t understand English and he couldn’t ask for help. He was roaming around with no contacts and years went by and he wasn’t thinking of his visa or when it expired.
Because of the earthquake he can’t get in contact with anyone from his family and his family house in Nepal has been lost.
He doesn’t want to go back to Nepal because he has no one there and he wants to stay in Australia and have a better life.
He will be homeless with no work if he returns to Nepal.
His separated wife’s family will harm him if he returns to Nepal because he doesn’t know her whereabouts, he will have returned without her and they will blame him for leaving her.
The Nepali Government does not do anything to help homeless or anyone that has lost everything.
He cannot relocate in Nepal because he has no money, no family and he lost everything that he did have in the recent earthquake there.
Evidence
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 unsigned, undated, hand-written statement of claims.
·A photocopy of the applicant’s Nepalese passport.
·The delegate’s protection visa assessment record (‘delegate’s decision record’) of [November] 2015 which was not relevant to the Tribunal’s consideration.
·The applicant’s online application for review on 14 December 2015, which did not include any attachments.
·The applicant gave oral evidence at a Tribunal hearing on 24 February 2017.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
The applicant claims and the Tribunal is satisfied on the basis of the personal details provided, that he is a Nepali national. Nepal is therefore the receiving country for the purpose of assessing the applicant’s claim for protection.
Tribunal hearing
At the Tribunal hearing, the applicant told the Tribunal that he has never worked. After he finished school in Nepal in [year], he was supported by his parents. Since he has been in Australia, he has been supported by his friends and his [siblings]. The applicant said that [his siblings] were in Australia living in [City 1] and both [worked]. They send him money fortnightly or monthly and he chats to them on [social media].
The Tribunal asked the applicant about his family in Nepal. The applicant told the Tribunal that his parents and [other siblings] were all living in Kathmandu. He said his [siblings] were all married and not working and his parents were living in a house. The applicant said it had been nearly two years since he had spoken to his family in Nepal. The Tribunal asked the applicant why he had not spoken to his family for that long. The applicant said it was because he didn’t have any money. The Tribunal asked the applicant why not having any money was a problem in terms of him speaking to his family. The applicant said he didn’t know. The Tribunal asked if he had ever sent money back to Nepal for his family. The applicant said he had not.
The Tribunal asked the applicant what he feared in returning to Nepal. The applicant said he “did not know about that”. The Tribunal noted that the question was central to the applicant’s protection visa application and asked the applicant whether there was any reason he could not return to Nepal. The applicant said that he didn’t have any money and he could not survive in Nepal. The Tribunal reminded the applicant of the requirements that need to be satisfied for the grant of a protection visa in relation to a well-founded fear of persecution and a real chance of serious harm or a real risk of significant harm and asked the applicant if there was any other reason he could not return to Nepal. The applicant shook his head and confirmed that his answer was “no”.
The Tribunal noted that the applicant had claimed in his protection visa application that he could not return to Nepal because he had no one there and he would be homeless with no work but that the applicant had told the Tribunal that he had [a number of siblings] and his parents in Kathmandu. The Tribunal put to the applicant that his family members could support him and on that basis, asked the applicant why he could not survive if he returned to Nepal. The applicant did not answer this question when offered the opportunity twice.
The Tribunal asked the applicant if there was any reason why he would suffer serious or significant harm if he returned to Nepal. The applicant did not answer this question.
The Tribunal noted that the applicant appeared reluctant to answer some of the Tribunal’s questions and reiterated to the applicant that the Tribunal’s hearing was his opportunity to ensure the Tribunal had all the necessary information it needs in relation to his application for protection. The Tribunal asked the applicant if there was any reason why he was reluctant to answer its questions. The applicant said “no”. The Tribunal asked the applicant if he understood the interpreter and the applicant said he did. The Tribunal also asked the applicant if there was anything it should be aware of in relation to his ability to participate in the review. The applicant said “no”.
The Tribunal noted that the applicant stated in his protection visa application that the Nepali government does nothing to help homeless people and asked the applicant if there was anything further he would like to say about this. The applicant said “no”.
The Tribunal noted that the applicant also stated in his protection visa application that he could not relocate in Nepal because he had no money, no family and he lost everything in the earthquake. The Tribunal noted that the applicant had also told the Tribunal that he had a number of family members in Nepal and asked the applicant if there was anything else he would like to tell the Tribunal about this. The applicant said “no”.
The Tribunal also noted that the applicant had claimed in his protection visa application that his separated wife’s family will harm him if he returns to Nepal because he doesn’t know her whereabouts and they will blame him for leaving her. The Tribunal asked the applicant if he would like to tell the Tribunal anything more about this claim. The applicant said “no”.
The Tribunal put to the applicant that his claim that he could not return to Nepal because he did not have any money and he could not survive related to general economic conditions. The Tribunal asked the applicant if there was anything else he would like to make the Tribunal aware of in relation to his claims for protection and why he cannot return to Nepal. The applicant said “no”.
The Tribunal asked the applicant if there was anything else he would like to make the Tribunal aware of and whether everything had been covered from his perspective. The applicant said “yes”.
FINDINGS AND REASONS
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Nepal, there is a real risk he will suffer significant harm.
While the applicant had claimed in his protection visa application that he had no one in Nepal, he could not get in contact with anyone from his family and his family house in Nepal had been lost, the applicant told the Tribunal that his parents are living in a house in Kathmandu and he has [a number of siblings] also living in Kathmandu. The applicant told the Tribunal that his family supported him in Nepal before he came to Australia and it put to the applicant that his family members could support him if he returns. The applicant was given a number of opportunities to comment on this proposition and he did not. He also did not elaborate on why he could not survive in Nepal and did not provide the Tribunal with any other information in relation to his claim that the Nepali government does nothing to help homeless people when invited to do so.
The Tribunal notes that the applicant suggested he had not spoken to his family in some time because he had no money. However, the applicant did not claim that he feared harm from his family on this basis and when asked why having no money was a problem in terms of him speaking to his family, the applicant said he did not know. The applicant also said he had not previously sent money back to his family.
Therefore, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm if he returns to Nepal. In addition, the Tribunal does not accept that the applicant cannot return to Nepal because he has no money, he has no one there or that he cannot survive given he has family members living in Kathmandu. The applicant has not claimed that he fears his family will harm him because he has no money and he provided no reason why family members could not support him as they have done previously and are currently doing while the applicant is in Australia.
The Tribunal also notes that the applicant had claimed in his protection visa application that his separated wife’s family will harm him if he returns to Nepal because he doesn’t know her whereabouts and they will blame him for leaving her. The applicant specifically told the Tribunal that he did not want to provide any further information in relation to this claim and when given numerous opportunities to tell the Tribunal what he feared in returning to Nepal, did not mention fear of his separated wife’s family. Accordingly, the Tribunal is not satisfied that the applicant fears harm from his separated wife’s family.
CONCLUSIONS
Does the applicant have a well-founded fear of persecution for one or more of the five reasons set out in the refugee criteria?
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason and is not satisfied that the applicant has experienced serious harm or that he faces a real chance of serious harm in the reasonably foreseeable future if he returns to Nepal as a result of his financial situation, his separated wife’s family or for any other reason.
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 s.36(2)(a).
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk he will suffer significant harm?
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).
Because the Tribunal is not satisfied that the applicant has a well-founded fear of persecution and is not satisfied of his claim to fear harm from his separated wife’s family, his financial situation or for any other reason, it does not accept that there is a real risk that the applicant will suffer significant harm now, or in the reasonably foreseeable future if he returns to Nepal.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…

[2017] AATA 382

1 March 2017

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