1517188 (Refugee)

[2017] AATA 1955

1517188 (Refugee) [2017] AATA 1955 (21 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517188

COUNTRY OF REFERENCE:                  Nepal

MEMBER:David McCulloch

DATE:21 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 21 September 2017 at 11:03am

CATCHWORDS

Refugee – Protection visa – Nepal – Particular social group – Polygamist – Maoists – Fear of ostracism – Fear of killing – Extortion – Credible witness  – Delay in applying for protection

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Yao-Jing Li v MIMA (1997) 74 FCR 275
Prasad v MIEA (1985) 6 FCR 155
Luu & Anor v Renevier (1989) 91 ALR 39
Randhawa v MILGEA (1994) 52 FCR 437

Abebe v Commonwealth of Australia (1999) 197 CLR 510

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] June 2015.

3. The applicant appeared before the Tribunal on 18 September 2017. The Tribunal was assisted with the use of an interpreter in the Nepali language.

4. The applicant was represented by his registered migration agent, who attended the hearing.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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. The Tribunal has before it DFAT Country Report – Nepal, 21 April 2016. In the Tribunal hearing, the applicant’s representative indicated that he had a copy of this report.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is the credibility of the applicant and whether, on his accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and claims

12. The applicant has provided to the Tribunal a copy of the decision of the delegate which indicates as follows. The applicant arrived in Australia [in] October 2008 on a [temporary] visa. A further [temporary] visa was granted [in] June 2010. The applicant departed Australia [in] August 2010 and returned [in] October 2010. The applicant’s [temporary] visa was cancelled because he was no longer in a relationship. The decision indicates that the predicted cease date of the [visa] was [a date in] August 2011. The application for the Protection visa was made [in] June 2015.

13. The application forms for the Protection visa indicate the following. The applicant was born on [date] in [his home town], Syangja, Nepal. The applicant lists one address lived at from birth until August 2008 in the town in which he was born. However, there are overlapping periods from August 2002 until August 2008 in which the applicant lists an address in Kathmandu. The applicant is of the Hindu religion. The applicant provides no information about education or employment history. The applicant’s father is deceased and has his mother and [siblings] living in Nepal. The applicant is in contact with his relatives by phone. The applicant returned to Nepal from August until October 2010 to see his mother.

14. The applicant’s claims for protection are set out in a Statutory Declaration dated [in] June 2015 which provides as follows (not corrected for spelling or grammar):

    I am a citizen of Nepal.

    I came to Australia in September 2008 as a holder of [a temporary] visa. I was accompanied by my de facto partner.

    I was married to my wife [named] according to Hindu religion in December 2006 in my home town. However, I never registered our marriage, as it is not the legal requirement to register a religious marriage in Nepal. I have a child from my first wife.

    As the job opportunity in my home town was very limited I moved to Kathmandu in search of a job. I worked in a [business] as [Occupation 1]. While I was working at the [business] I fell in love with a girl. We started to live together and also decided to get married. After the marriage we registered our marriage and my de facto partner became my legal wife.

    However, the then ruling party "MAOIST" in Nepal and their cadres threatened me of persecution because of the second marriage. I was threatened of my life in several occasions. I had to hide for moths to avoid persecution from them.

    Besides the physical punishment, the MAOIST cadres also demanded donation as a penalty for entering into polygamy marriage. They demanded me to provide Nrs [amount] as donation to their party, which was impossible for me to pay. My economic background was very bad and not in any circumstances I was able to pay the demanded amount.

    After hiding from Maoists for a few months, we realised that we will not be able to save ourselves from the MAOISTS, we decided to go abroad in order to save our lives. We applied for a [temporary] visa to Australia and after the grant of the visa arrived Australia in September 2008.

    After arrival in Australia we were living happily together. However, since the mid of 2010 I realised that my wife is changing her behaviour. She started to be rude to me, stopped talking to me and started to live outside of home without telling me.

    Later i found that she is not happy with our relationship and wanted a divorce from me. I tried very hard to convince her, but she ignored my request. She also told me that she is in love with someone else and wanted to get married with him. We were divorced in 2010. However, I do not have a divorce certificate with me. The divorce was initiated by my wife and I was not contacted for my consent.

    At this point of time, I realised that I made a great mistake in my life by ignoring my previous wife and my child. I also realised that my second wife used me as ladder to come to Australia only.

    I am in a very difficult situation at this stage. Firstly, I have discarded my wife and child and secondly I am being targeted by MAOISTS for entering into polygamy marriage and not paying the donations they demanded.

    At this stage I am in contact with my first wife and she has informed that the MAOIST cadres are still trying to find out my whereabouts. My wife do not have any problems with her but the MAOISTS have informed my wife that I will be punished for my deeds especially for not paying them the instructed donation. My wife has told the MAOISTS that I am currently living in Australia.

    I say that my life is in danger on the hands of MAOISTS. I fear that I will be abducted, tortured and possibly killed by them.

15. The applicant’s representative provided further information to the Department. It indicates that the applicant worked as [an Occupation 2] in [Country 1] from September 2002 until August 2006. This contradicts the information in the Protection visa application form which indicates that the applicant was living in Kathmandu from August 2002. The applicant worked as a [different occupation] in Dubai from April 2001 until September 2002. In contrast, the application form indicates no other countries visited by the applicant. From April 2006 until May 2008 the applicant worked as [an Occupation 1] at [a business] in Kathmandu.

16. On the Departmental file is a marriage registration certificate in relation to the marriage between the applicant and [Ms A] that took place [in] November 2007 and Nepalese court documents relating to the divorce between the applicant and [Ms A] determined [in] April 2011.

17. The applicant’s representative provided a submission to the Tribunal on 11 September 2017. It indicates that the applicant is a member of a particular social group of individuals entering into a second marriage without getting divorced from their first wife. The applicant also fears persecution from society and the authorities for a polygamous marriage. The applicant fears harm from Maoists as a result of the polygamous marriage. The applicant has received several threats to his life before leaving for Australia. Maoists are visiting the applicant’s wife threatening harm to the applicant. Maoists also think that the applicant has earned a large amount of money working in Australia. The applicant will face social discrimination, and will not be able to save both marriages, aggravated by the fact that he has discarded his second wife. He will not be able to lead normal life.

18. The applicant’s representative has provided a reference to Nepalese law which indicates that a person who enters into a second marriage shall be liable to imprisonment for between one and three years and subject to a fine of Rs.5000-Rs.25,000. It is indicated that recordkeeping in Nepal is very poor which is why the applicant was able to register his second marriage because authorities could not find information about the first marriage. 

    INDEPENDENT INFORMATION

    Situation since end of the Maoist insurgency in 2006

19. The following information is provided from a Background Paper – Nepal: Maoists in Nepal, prepared the Country Advice section of the Refugee Review Tribunal, issued 7 June 2013 and reviewed in December 2013:

    Violence and intimidation remain features of Nepal’s political landscape; though no longer on the scale that it was prior to the 2008 constituent assembly elections, or during the war.[1] Members of the UCPN-M [Unified Communist Party of Nepal – Maoist] and associated groups have contributed to this culture of violence; the ICG posits the argument that as cadres of a Maoist revolutionary party, some members of the UCPN-M continue to believe that violence can be a legitimate political tool, particularly as a means to “resist oppression”.[2] Another contributing factor to Nepal’s violent political culture is the ongoing impunity enjoyed by cadres of numerous political parties.[3]

    Prachanda and other leaders of the UCPN-M have stated that political violence needs to be eliminated; indeed following the pre-election violence of 2008, Prachanda reportedly stated that violence perpetrated by Maoist cadres and the YCL had undermined the legitimacy of the party, and he vowed to de-militarise the YCL.[4] While the level of political violence no longer reaches the levels of 2008, UCPN-M cadres, particularly in remote regions of Nepal, continue to be implicated in violent acts against political rivals and others, including journalists.

    [1] Racovita, M et al 2013, In Search of Lasting Security: An Assessment of Armed Violence in Nepal, May, pp.17-18, 21 < Accessed 22 May 2013

    [2] International Crisis Group 2010, Nepal’s Political Rites of Passage, Asia Report N°194, 29 September, pp.4-5, 7-10 <Attachment>; see also Racovita, M et al 2013, In Search of Lasting Security: An Assessment of Armed Violence in Nepal, May, pp.17-18, 21 < Accessed 22 May 2013

    [3] United Nations 2011, Report of the United Nations High Commissioner for Human Rights, 16 December, p.15

    [4] Bangerter, O 2012, Internal Control: Codes of Conduct within Insurgent Armed Groups, Small Arms Survey, November, p.49 < Accessed 19 April 2013; Upreti B R & A 2012, Conflict, Transition, and Challenges to Nepal’s Peace Process, January, p. 14, Nepal Centre for Contemporary Research < Accessed 27 May 2013

20. More recent information about political violence in Nepal is contained in a report prepared in January 2015 by the Country of Origin Information Section (COISS) of the Department of Immigration and Border Protection in response to a request from the Tribunal. It contains the following information:

    During 2014, there were no reports of inter-party violence in general across Nepal.

    According to the South Asia Terrorism Portal’s 2015 assessment of Nepal, no violent inter-party clashes were reported during 2014:

    The successful holding of elections for the second Constituent Assembly (CA) on November 19, 2013, have, in some measure, transformed the political environment of the country and diminished violent inter-party clashes. As against 22 such clashes resulting in four deaths and 167 injuries in 2013, no such clashes were reported through 2014.[5]

    [5] South Asia Terrorism Portal 2015, Nepal Assessment 2015, n.d., para.2 < Accessed 27 February 2015 CISEC96CF1246

    South Asia Terrorism Portal’s 2014 assessment of Nepal reported that 2013 was the first year of no reported insurgency-related violence. Political violence however did increase during 2013:

    … political violence did increase considerably during 2013. Activists of political parties clashed with each other on at least 22 occasions resulting in four deaths and 167 injuries. There were four such incident resulting in seven injuries and no fatalities in 2012. Further, activists of political parties clashed with law enforcement personnel on at least four occasions in 2013, with 14 persons injured.[6]

    On 27 May 2013, Business Standard reported that the ‘Nepali Congress today accused UCPN-Maoist cadres of attacking its youth leader and abducting an ex-Maoist who had defected to the party’. Repordedly, Maoists pelted stones at the vehicle that the youth leader and central committee member Gagan Thapa were in. Additionally, Jeevan Khatrichhetri, who defected from the UCPN-M was reportedly abducted by the UCPN-M.[7]

    The recent attempts to promulgate a constitution resulted in UCPN-M led violent outbreaks and nationwide protests:

    … In a clear manifestation of growing political volatility in the Republic, opposition members of the CA, led by UCPN-M, vandalized Parliament and attacked ruling party leaders and security staff, leaving four security staff members injured, on January 20, 2015. Again, on January 22, 2015, opposition CA members threw microphones and shoes at the members of the ruling alliance. On this day, protests also erupted across Nepal, in which several persons were injured and a substantial quantum of property was damaged. In fact, as the deadline for the Constitutional draft approached, protests and bandhs (general strikes) became the order of the day. Significantly, during one such bandh enforced by the UCPN-M-led alliance, which turned violent in several parts of the country, a protester, identified as Rajaram Jha (25), died at Bhramarpurachok in Dhanusha District on January 12, 2015.[8]

    According to a 25 February 2015 report, the UCPN-Maoist youth wing (Young Communist League) staged a March in Kathmandu on 24 February to express their intent to rally on February 28.[9] The 28 February protests resulted in injuries to several policemen, protestors and onlookers as police baton charged and used tear-gas to control protestors in New Baneswaor.[10]

    [6] South Asia Terrorism Portal 2014, Nepal Assessment 2014, n.d., para.2 < Accessed 27 February 2015 CIS2F827D92146

    [7] ‘Nepali Congress claims Maoists attacked party leaders’ 2013, Business Standard, 27 May, para.8 < Accessed 27 February CXC28129413976

    [8] South Asia Terrorism Portal 2015, Nepal Assessment 2015, n.d., para.2 < Accessed 27 February 2015 CISEC96CF1246

    [9] Jayshi, D 2015, ‘Nepal Maoist youth wing stages show of strength’, The Hindu, 25 February, para.1 < Accessed 27 February 2015 CXBD6A0DE2008

    [10] ‘Opposition Protest’ 2015, Nepali Times, 28 February, para.5 < Accessed 3 March 2015 CXBD6A0DE2133

21. The recent DFAT Country Report – Nepal, 21 April 2016 provides as follows:

    Political actors (from all major political parties and smaller identity-based groups) are key elements of Nepali society. Political affiliation, both at an organisational and individual level, is an important aspect of identity. This was a cause of instability during the conflict and in the years immediately following. Political youth wings, bandhs (strikes), demands for donations from local authorities and the private sector, and the obstruction of tender-bidding processes in line with political interests all contributed to this instability.

    A diverse and competitive array of political parties operates in Nepal, though the system has faced considerable instability in recent years. Unlike the 1990 constitution, the 2015 Constitution has no limitation on parties formed along ethnic lines. Prior to the 2013 elections, the political environment suffered instability, including some violence by supporters linked to the main Maoist party on members of other parties, and on people who allegedly informed on the Maoists during the civil war. Supporters linked to the other leading parties were also accused of attacking supporters of the Maoists during 2013.

    At the time of publication, the situation has significantly changed. Nepal’s lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected.

    DFAT assesses that while violence has occurred in the aftermath of the release of the new Constitution and Maoist/and disillusioned splinter groups continue to threaten a return to bandhs and or violence, the overall risk [based on political opinion, actual or imputed] is low.[11]

    [11] DFAT Country Report – Nepal, 21 April 2016, para 2.36-3.29

    Hearing, credibility, findings and assessment

1. In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA  (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

2. The Tribunal is satisfied that the applicant is a citizen of Nepal and accordingly his claims will be assessed against Nepal.

3. After considering all the evidence, including the evidence in the hearing, the Tribunal is satisfied that the applicant was married in a religious ceremony to his first [wife] in December 2006. However, as indicated by the applicant in the interview with the delegate, and acknowledged in the Tribunal hearing, this marriage was not registered and there was no legal record of the marriage. The Tribunal is satisfied that the applicant married his second wife, [Ms A], [in] November 2007. The Tribunal is satisfied that the applicant had a child with his first wife who was born in [year].

4. The Tribunal accepts that, after the applicant’s first marriage in his home village, he returned to a previous job in Kathmandu ([distance] km and a [duration] bus ride away from his home village) and this is where he met his second wife. After the applicant’s marriage, the applicant continued a relationship of sorts with both of his wives. From time to time he would return to his village. His first wife seemed to accept, or at least tolerate, the arrangement. Since the applicant’s divorce from his second wife, he and his first wife have a good relationship.

5. The Tribunal is not satisfied, however, that Maoists extorted the applicant for money as a result of him marrying twice or that they have intimidated him as a result, including apprehending him at the airport when attempting to leave for Australia. The Tribunal is not satisfied that Maoists have been visiting the applicant’s first wife in the home village following the applicant’s departure for Australia looking for the applicant. This is for the following reasons.

6. Firstly, the applicant’s claims of being in hiding following Maoists extorting him for money is not consistent with information in the application form for the Protection visa concerning the applicant working in the one location in Kathmandu up until May 2008 and living at the same address in Kathmandu up until August 2008. The applicant’s evidence in the hearing as to being in hiding out of Kathmandu was inconsistent and vague. The applicant’s account of his initial approach by Maoists and their follow-up of him, culminating in apprehending him at the airport when he was about to leave for Australia was vague, implausible and unconvincing. The Tribunal has plausibility concerns that Maoists would demand [amount] from the applicant, an amount that he could never possibly pay.

7. In the Tribunal hearing, the applicant indicated that, in approximately January 2008, about two months after that he got married, Maoists came to his home one day, took him to their headquarters, said that they knew that he had married twice, and demanded [amount] compensation. The applicant indicated that he was given three months to pay.

8. The Tribunal asked the applicant on at least two occasions in the hearing to provide further details of him being taken by the Maoists beyond the generalised account that the applicant initially provided. The Tribunal indicated to the applicant that it would like detail as to precisely what happened to persuade the Tribunal that the applicant was talking about an event that actually occurred. The applicant did not provide subsequent accounts that caused the Tribunal to consider that the applicant was talking about an event from actual experience. The applicant repeated the previous generalised and high level account, without any significant detail, including contextual information and surrounding detail.

9. The Tribunal asked the applicant how much he earned in his job. The applicant said that he earned Rs.[amount] per month. The Tribunal questioned the applicant as to the plausibility of Maoists demanding Rs.[much higher amount] given his income. The Tribunal put to the applicant that, surely, he would have told the Maoists that there was no prospect of him paying such an amount. The applicant said that he did say this but he was still told that he had to pay. The Tribunal does not think it credible that the applicant would be extorted for such an unrealistic amount, acknowledging that extortion itself by Maoists is plausible in term of how Maoists operated. However, the motivation of the Maoists was to extract funds to facilitate their operations. It was in their interests to seek to extract amounts that were payable. In the current claimed situation, there was no prospect of the amount asked for being payable.

10. The Tribunal asked the applicant about subsequent contact from Maoists after the initial approach. The evidence of the applicant was halting and lacked certainty and definitiveness. The applicant indicated that the Maoists contacted him within the three-month deadline period asking for the money and reminding him of the need to pay. The Tribunal suggested to the applicant that the three-month deadline would have ended in around March or April 2008, and the applicant agreed. The applicant indicated that, because he went into hiding, the Maoists were not able to contact him at the end of the three-month period.

11. The applicant indicated that the next contact with the Maoists was not until September 2008 when the applicant made his first attempt to leave for Australia. The applicant indicated that the Maoists apprehended him at the airport and took him away in relation to the amount that needed to be paid and made him sign a guarantee. The Tribunal suggested to the applicant that it lacked credibility that the Maoists would suddenly be able to locate him in this way, when they had made no contact in the many months previous.  The applicant indicated that they must have been tipped off as to his whereabouts.

12. The Tribunal also considers it implausible that the Maoists would release the applicant simply on the basis of signing a guarantee, when he had absconded for many months.

13. The applicant told the Tribunal that he was effectively in hiding from the end of the three month period in around March 2008 until leaving for Australia. The applicant provided to the Tribunal no detailed account of being in hiding, just indicating that he went from place to place. The Tribunal notes that the evidence of the applicant being in hiding from March 2008  is inconsistent with the information in the Protection visa application forms that he remained working at his job in a [business] until May 2008. At one point in the hearing, the applicant indicated that he was outside of Kathmandu from May 2008 until leaving for Australia. The Tribunal pointed out that this was inconsistent with his Protection visa application forms which indicated that he was living at the same address in Kathmandu up until August 2008. The applicant then changed his evidence to say that he would spend some time back in Kathmandu.

14. This changed evidence, in the context of the address listed in the application form, indicates that that the applicant returned to live at the address in Kathmandu he had lived for many years.  This is inconsistent with claims that the applicant needed to be in hiding.

15. In relation to the information in the Protection visa application forms, in the hearing, the applicant indicated that the forms were filled in by him. They are in handwriting in English. The applicant indicated to the Tribunal at the beginning of the hearing that all information in the forms was correct.

16. In summary, the applicant did not provide an account of being initially taken by Maoists and extorted that was convincing. The Tribunal does not consider it plausible that the applicant would be extorted by Maoists for an amount that he could not possibly pay, acknowledging that extortion was a tactic of Maoists. The applicant’s evidence as to being in hiding was vague and inconsistent with written information in the Protection visa application form which the applicant told Tribunal was correct and filled in directly by him. Evidence of the applicant being located by Maoists at the airport after not being contacted by them for many months, and then released simply on the basis of signing a guarantee, stretched credibility.

17. The impact of these credibility issues are significantly undermining of the truth of the applicant’s claims that Maoists extorted him for [amount], causing him to go into hiding, and  apprehended him at the airport in September 2008.

18. Secondly, the applicant’s evidence as to Maoists approaching his wife after the applicant left for Australia was also vague, lacking in definitiveness, as well as implausible, including in light of country information concerning the moderation of insurgent activity by Maoists in Nepal over the last 10 years.

19. In the hearing, the Tribunal asked a number of questions of the applicant as to the frequency of visits by Maoists to his first wife, including when was the last visit. It was difficult initially getting clear responses from the applicant. Only in response to further pressing from the Tribunal did the applicant state that there had been visits by Maoists every three to four months since the applicant left for Australia, with the last visit about three to four months ago. This seemed inconsistent with initial evidence by the applicant which suggested that the visits from Maoists actually ceased a fairly short period of time after the applicant arrived in Australia.  

20. The applicant indicated that the Maoists currently just ask the applicant’s first wife when the applicant is returning home. He indicated that, previously, they would torture her, but now they do not do so. The applicant indicated that they did not ask for money from her.

21. The Tribunal discussed with the applicant the plausibility of the Maoists who had an adverse interest in him in Kathmandu making the effort to track down his first wife in a village [distance] km and [time] away from Kathmandu. The applicant responded that Maoists are connected all over Nepal and those in Kathmandu would have contacted Maoists in the applicant’s home village to take action.

22. The Tribunal discussed with the applicant the plausibility of Maoists taking action in relation to the applicant over a continued period of almost 10 years. The Tribunal discussed with the applicant independent information set out in this decision which, whilst indicating that some violent and intimidatory activity by Maoists continued for a number of years after the end of the civil conflict, in the last several years the situation has stabilised considerably (particularly since the promulgation of the Constitution). In that context the Tribunal had doubts as to the plausibility of Maoists pursuing their attempt to extort the applicant over so many years (in relation to a minor issue). In response, the applicant referred to the fact that the Maoists are part of the government.

23. The Tribunal discussed with the applicant why Maoists were not insisting on his first wife giving them money. It has been claimed that the Maoists know that the applicant is in Australia. It is also claimed that the applicant faces an additional risk of extortion based on being perceived to be wealthy due to living in a Western country. Why then would the Maoists approaching the applicant’s wife not ask her for money with the expectation that this would be provided by the applicant earning a lot of money in Australia?

24. In response, the applicant indicated that they probably were asking her for money but she would have told them that the applicant did not have any. The Tribunal finds this explanation unsatisfactory. The applicant previously gave evidence that Maoists were not asking his first wife for money. The Tribunal does not think it credible that the applicant would not know if this had been a request for money from his first wife, given the ongoing contact between the applicant and his first wife.

25. The combination of the vagueness of the applicant’s evidence concerning Maoists visiting the applicant’s first wife, the implausibility of Maoists pursuing such a minor matter in relation to the applicant for almost 10 years, including in light of independent information concerning the reduced insurgent activity of Maoists, and shifting and unsatisfactory evidence concerning requests for money from Maoists cause the Tribunal significant credibility concerns in relation to claims that Maoists have been contacting and torturing the applicant’s first wife, looking for the applicant.

26. Thirdly, the very significant delay in the applicant applying for the Protection visa is not consistent with him holding a fear of returning to Nepal for the reasons claimed. The Tribunal notes that the applicant had no lawful visa from 2011 until he applied for the Protection visa in 2015. In the Tribunal hearing, the applicant explained this by indicating that he thought that he would be attached to his second wife’s visa. As indicated to the applicant in the hearing, the Tribunal does not accept that the applicant would have assumed this given that he had split up with his second wife at that point in time, and therefore there would be no entitlement to a visa based on a dependency relationship. The applicant also indicated in the hearing that he had no knowledge of the Protection visa option. The Tribunal does not accept, if the applicant feared serious or significant harm in Nepal, that he would not have investigated options for protection. The Tribunal finds it further unlikely that the applicant would not have heard about the option of a Protection visa after many years in Australia.

27. The delay in applying for the Protection visa is undermining of the truth of the applicant’s claimed fears and that there is a risk of harm to the applicant for the reasons claimed.

28. Fourthly, the applicant’s return to Nepal for two months in 2010 could be seen as inconsistent with a claim of him facing a real chance of serious or significant harm. In response to this issue in the hearing, the applicant indicated that it might be alright from him to go back to Nepal for a couple of months, but not permanently. In the Tribunal hearing, the applicant acknowledged that he went back to his village during this visit, but only for a few days. He indicated that he was in fear and would live in other places during this two month period. He indicated that he was not at risk because the Maoists would not take action against him out of sympathy because he was visiting his sick mother. The Tribunal does not accept this explanation. The Tribunal does not accept that, if there were militant Maoists in the applicant’s home village, who had been pursuing the applicant for years, with frequent visits to his first wife, they would hold off on taking action against the applicant out of sympathy for a sick mother.

29. The return visit of the applicant to Nepal and his home village is undermining to claims that the applicant faces harm from Maoists for the reasons claimed.

30. The Tribunal considers these four credibility issues. The cumulative impact of these issues is significantly damaging to the applicant’s credibility. They cause the Tribunal to not be satisfied as to key claims made by the applicant. The Tribunal is not satisfied that the applicant was threatened by Maoists in early 2008 on the basis of entering into a polygamous marriage and being extorted for [amount] as a result. The Tribunal is not satisfied that the applicant went into hiding when he could not pay. The Tribunal is not satisfied that Maoists apprehended the applicant at the airport. The Tribunal is not satisfied that Maoists have been torturing or approaching the applicant’s first wife after the applicant came to Australia. The Tribunal is not satisfied that Maoists have had, or have, any adverse interest in the applicant such as to lead to a real chance of the applicant facing serious or significant harm from Maoists due to the applicant being married twice and being extorted as a result, and not having previously paid the requested amount, or due to a perception that the applicant is wealthy as a result of living in Australia and therefore a target for extortion.

31. In relation to the latter, no evidence has been provided to the Tribunal that would suggest that expatriates from Western countries returning to Nepal are particularly targeted for extortion based on the perception that they are wealthy. The Tribunal is not satisfied that there is a general risk to the applicant of serious or significant harm based on a perception of him having worked in a Western country.

32. A new claim made to the Tribunal, not made before the delegate, is that the applicant faces harm based on being charged and convicted of polygamy. The applicant’s representative has cited a Nepalese law which could impose a prison term of up to 3 years for polygamy and a fine of up to Rs.25,000.

33. In the hearing, the applicant acknowledged evidence he had given to the delegate, in which he said that his first marriage was not registered and there was no legal paperwork. In that context, the Tribunal indicated that this could suggest that the first marriage was not a legal marriage and therefore the second marriage would not have been a polygamous marriage. The applicant variously seemed to agree with this proposition but then to indicate that he feared harm on the basis of a polygamous marriage. After further questioning, the applicant indicated that his fear was limited to Maoists and he did not fear harm because of being charged with a crime for being married twice.

34. After discussion with the applicant’s representative, the Tribunal gave the applicant and his representative the opportunity to consult in private. On resumption of the hearing, the applicant indicated that he did fear being charged based on a polygamous marriage. The applicant’s representative submitted that, prior to 2009, whilst there were registration options for marriage, these were not compulsory. He submitted that the religious and social ceremony made the first marriage a legitimate marriage, notwithstanding the lack of registration. For the purpose of this decision, the Tribunal is prepared to accept that this is the case.

35. The representative submitted that there is a law currently before the Parliament in Nepal which provides more severe sanctions for polygyny. Because the applicant was not cognisant of that new law, he was equivocal as to having a fear of harm of being charged for marrying twice. However, after discussion with the applicant’s representative it was clear that any new law would not be any more onerous for the applicant. The applicant’s representative submitted that the new law provides the same penalties, with the only difference that it would make the second marriage invalid, whereas the current law would not have that effect. Given that the applicant’s second marriage is at an end, this would not be a hardship for the applicant.

36. The Tribunal asked the applicant if he had any difficulties from authorities/police in relation to his second marriage before coming to Australia. The applicant indicated that he had not. The Tribunal noted that the applicant had left Nepal without difficulty and had returned and left again without difficulty all of which would suggest that there is no warrant for the applicant’s arrest. There is no evidence that anyone has reported the applicant to the police, or that police are investigating the applicant for polygamy.

1. The Tribunal also notes a submission by the applicant’s representative that the applicant was able to marry a second time without difficulty because of poor record-keeping in Nepal.

2. The Tribunal has some doubts as to whether the applicant has a genuine fear as to being prosecuted for a polygamous marriage. The Tribunal is prepared to accept that he does have such a fear. However, the Tribunal considers that the prospect of him being charged under the law is remote. Almost 10 years has passed since the second marriage. There is no legal record of the first marriage. There were no difficulties from authorities after the second marriage including on a return visit by the applicant to Nepal in 2010. The applicant is on good terms with his first wife and there is no evidence that she would make a complaint in relation to the second marriage, particularly now that it is at an end.

3. The Tribunal considers that the prospect of the applicant being charged based on a polygamous marriage is remote. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm based on being prosecuted for being married twice.

4. The applicant has indicated that he would be treated badly and ostracised by society because of being married twice and abandoning his first wife and their child. The Tribunal asked the applicant in the hearing what had happened to him in the past in this respect. The applicant provided a nonresponse of answer and simply talked as to what might happen in the future in terms of people treating him badly. The Tribunal asked the applicant again to provide details as to ostracism or significant discrimination in the past. The applicant referred to being told that he was not a person of good character. The applicant provided no details as to any specific abuse or harm. At one point in the hearing, the applicant indicated that he would not be able to work.

5. The Tribunal noted to the applicant that he had retained a job for a number of months after being married a second time. In evidence he gave in the Tribunal hearing, the applicant returned home to his village and had an intimate relationship with his first wife, notwithstanding that he had married a second time. The applicant provided no evidence that he suffered any harm or specific details in terms of being ostracised by individuals in his village, or in Kathmandu, as a result of being married a second time. These matters cause the Tribunal to doubt that the applicant faces serious or significant harm from society in Nepal based on being married twice.

6. Further, the very significant delay in the applicant applying for the Protection visa and his return visit to Nepal reinforce the view that the applicant does not face serious or significant harm from society in Nepal based on being married twice.

7. Considering these matters, the Tribunal is not satisfied that the applicant faces a real chance of social ostracism or discrimination that would constitute either serious or significant harm. The Tribunal does not consider that the fact that the applicant is no longer with his second wife materially changes how he would be treated by the Nepalese society. The Tribunal is not satisfied that this would compound any adverse reaction due to being married twice. Indeed, the Tribunal is more inclined to consider that this would mitigate any negative reaction because the applicant, in practical terms, will only be in a relationship with his first wife.

8. The Tribunal explored with the applicant in hearing if there were any other grounds on which he feared harming returning to Nepal. The applicant said that there were not. The Tribunal notes that in the interview with the delegate the applicant referred to difficulties as a result of the 2015 earthquake, people not being able to eat and blockades. Given the applicant’s indication in the hearing of no further claims, the Tribunal is not satisfied that the applicant fears or faces a real chance of serious or significant harm on those grounds. Even if the applicant did have such fears, harm on those grounds would not be for a refugee criterion reason. In relation to the complementary protection criterion such harm would be a risk that is faced by the population of the country generally and not faced by the applicant personally and thus excluded under s.36(2B)(c) of the Act.

9. Considering all of the claims, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed, or for any other reasons.

10. In summary, in relation to the refugee criterion, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a refugee criterion reason, for any of the reasons claimed, or for any other reasons.

11. In summary, in relation to the complementary protection criterion, the Tribunal is not satisfied that there are 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 that he will suffer significant harm for the reasons claimed, or for any other reasons.

12. 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).

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

14. 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

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

    David McCulloch
    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.

    …