1517190 (Refugee)

1517190 (Refugee) [2018] AATA 297 (15 January 2018)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1517190
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Linda Symons
DATE OF DECISION:  15 January 2018
DATE CORRIGENDUM
SIGNED:20 February 2018
PLACE OF DECISION:  Sydney
AMENDMENT:
The following corrections are made to the decision. The words “May 2005” on page 2 of the decision record should be replaced with “May 2015.”

Linda Symons
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1517190
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Linda Symons
DATE:15 January 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 15 January 2018 at 3:53pm
CATCHWORDS
Refugee – Protection Visa – Nepal – Particular social group – Women in interreligious marriages – Single woman – Married a man from a different caste – Witness credibility – Various inconsistencies in evidence – Lack of basis for fear of harm
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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, arrived in Australia [in] September 2009 as the holder of a [Student] visa. This visa expired [in] June 2011 and she thereafter remained in the community as an unlawful non-citizen. [In] May 2005, she was granted a Bridging visa C in association with application for a Protection visa. She was granted a further Bridging visa C [in] April 2016.
The applicant applied to the Department of immigration and Border Protection (the Department) for a Protection visa [in] May 2015. The delegate refused to grant the visa on the basis that she is not a person in respect of whom Australia has protection obligations. On 14 December 2015, she applied to the Tribunal for review of that decision.
The applicant appeared before the Tribunal on 7 November 2017 to give evidence and present arguments. She was assisted by an interpreter in the Nepali and English languages.
The issues that arise on review are whether the applicant is owed Australia's protection under the refugee criterion or under the complementary protection criterion.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in her application for a Protection visa are summarised as follows:
·She was born on [birth date] at Kathmandu in Nepal. She is a Nepali citizen.
·She is a Hindu. Her father is an [Occupation 1] and very conservative about religion.
·When she was in Nepal she fell in love with a Christian man. She did not inform her family members of her relationship as she was sure that they would not accept it. She and her boyfriend decided to get married and go overseas where their religious differences would not be a problem.
·She and her boyfriend got married [in] July 2008 without informing their families. A few friends attended the ceremony. After the marriage, her husband registered the marriage in his home town of [Town 1]. They were able to keep the information about their marriage a secret for 9 months.
·They applied for Student visas in Australia and their application was granted [in] April 2009. [Later in] 2009, she and her husband were involved in an accident and taken to hospital. Documents were located in her bag and the Police informed her family about the accident.
·Her Marriage Certificate and photographs of her marriage were in her bag. Her family then became aware that she had married a Christian and “discarded” her. They were upset about her marriage and left the hospital without seeing her.
·Her husband suffered [minor injuries] as a result of the accident. [She suffered injuries] and the doctor [treated her injuries]. She was in hospital for more than 3 months. Her family never visited her in hospital.
·Her husband left the hospital without taking care of her or helping her to pay the costs of the hospital and medication. She tried to contact him but was unable to do so. His telephone was turned off and she was unaware of his home address.
·She tried to convince her family members of the circumstances she was going through but they did not forgive her. Because of her father’s profession as an [Occupation 1] he would be boycotted by the Hindu fundamentalist society if he forgives her. He would lose his profession and this would make it difficult for him to survive. As a result of pressure from Hindu fundamentalists, they declared her dead and performed death rituals in her name.
·She tried to commit suicide but her friends suggested that she go to Australia and start a new life. She decided to do so.
·She arrived in [an Australian city in] September 2009 and started a new life in Australia with the assistance of a few friends. Because of her medical condition, they helped to pay her grocery bills and other expenses. With the assistance of her friends she was able to complete one year of her studies. However, her friends were not able to assist her in the second year and she was unable to pay for her tuition fees. She worked for a few days a month to cover her daily expenses.
·She is unable to work because of her medical condition. She has no one to look after her or take care of her basic needs. She came to Australia to get some experience of living independently. As a result of the earthquake in Nepal on 25 April 2015 she has no hope that she can live independently if she returns to Nepal.
·Society and her family have discarded her because of her marriage to a Christian. Her family have declared her dead and she has no other family members to support her. She does not believe that other people or the authorities will assist.
The applicant has provided to the Department a copy of her Nepali passport, her husband’s Birth Certificate together with an English translation, a Submission Notice from [an immigration service] dated [in] October 2015, x-rays of her [injuries], a letter dated [in] October 2008 from [a bank] in relation to her student loan, a Relationship Certificate, a letter dated [in] November 2015 from [an individual], a Report dated [in] April 2009 from [a hospital] and bank statements from [a bank in Australia].
The applicant’s migration agent provided submissions dated [in] May 2015 to the Department. In his submissions, he stated that the applicant’s claims are based on religion. He stated that she married a Christian man and her father is an [Occupation 1] and a strict follower of his religion.
The applicant attended an interview with the Department [in] October 2015. During the interview, she reiterated and expanded on her written claims. The Department found that she is not a person in respect of whom Australia has protection obligations.
The applicant has provided to the Tribunal a copy of the Department’s Decision Record dated [in] November 2015.
On 30 October 2015, the Tribunal received pre-hearing submissions from the applicant’s migration agent. In his submission, he stated that the applicant fears persecution for reason of her membership of the particular social groups ‘women in interreligious marriages’ and ’a single woman’.
On 10 January 2018, the Tribunal received a letter from the applicant’s migration agent and closing a copy of the applicant’s Certificate of Marriage.

Receiving country

The applicant claims to be a citizen of Nepal and has provided copies of her Nepali passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that the applicant is a citizen of Nepal. The Tribunal finds that Nepal is the applicant’s receiving country for the purpose of assessing her claims.
Assessment of claims
The applicant gave evidence that her application for a Protection visa was prepared by her migration agent based on the instructions she provided him. She stated that her instructions were true and correct and that she is satisfied that her visa application is accurate and complete. When asked whether there had been any changes in her circumstances since she filed her visa application, she stated that she now has permission to work, is working and feels independent.
During the hearing, the Tribunal discussed with the applicant her background, her family, her education, her employment, where she lived in Nepal, her reasons for coming to Australia and why she fears returning to Nepal. The Tribunal found aspects of her evidence to be vague, evasive, implausible, contradictory and unconvincing. There were many inconsistencies between her evidence to the Department and her evidence to the Tribunal. She made new claims during the course of the hearing. The Tribunal formed the view that she was fabricating her evidence as she was giving it. The Tribunal finds that she is not a reliable or credible witness for the following reasons.
The Tribunal discussed with the applicant her written claims that she fell in love with a Christian man in Nepal, that she did not inform her family members of her relationship as she was sure that they would not accept it, that they decided to get married and go overseas, that they got married [in] July 2008 without informing their families, that her husband registered the marriage in his home town of [Town 1] and that they were able to keep the information about their marriage a secret for 9 months. She gave evidence to the Tribunal that she first met her then boyfriend in June or July 2008 as he used to rent a house next to her grandmother’s house. When asked how their relationship developed, she stated that he used to tease her and tell her that he loved her. She stated that she did not trust him but he later convinced her that he loved her. She stated that he took her to Church on Sundays.
The Tribunal asked the applicant how her then boyfriend convinced her that he loved her. She responded that he gave her a gift and helped her to carry the groceries to her house. She stated that he became a close friend in a month. When asked how their relationship changed from being just friends, she stated that her grandmother was very conservative and did not allow her to speak to boys. She stated that when she spoke to her than boyfriend he understood her and she thought he was special so it moved to the next level. When asked how that led to marriage, she responded that she knew that her family would not accept it. She stated that if her mother found out she would have killed her. She stated that her mother’s brothers were very strict.
The applicant gave evidence that her grandmother was searching for a partner for her who was from the same caste and she expected her grandmother to help her. She stated that she convinced her grandmother to let her come to Australia to study. She stated that her then boyfriend told her that he would help her and come to Australia with her. She stated that she thought she could get some support from him if he came with her. She stated that she thought that if they got married everyone would accept them.
The Tribunal asked the applicant about her marriage. She stated that she got married in a Hindu temple and that [a small assortment of friends] were present. When asked why they got married in a Hindu temple, she responded for convenience and there was nothing important about it. When asked why she thought getting married is not important, she responded that she used to go to Church on Sundays. She stated that she knew little about Christianity. She stated that when she told her husband that they should get married in a Hindu temple, he did not object. This answer is non responsive.
The applicant gave evidence that her husband is a Christian. When asked what denomination he belonged to, she stated that she did not know. She stated that after coming to Australia she found out that there are two kinds of Christianity; Catholic and Anglican. When asked the name of the Church she went to, she responded that she did not remember. When asked the address of the Church, she stated that it was in the suburb of [Suburb 1]. When asked the street name, she responded that the street did not have a name at the time but now has a name. When asked how she knows that, she responded that her friends keep going to Nepal and keep telling her about the name of the street. When asked why her friends would keep telling her about the name of the street, she responded that she wanted to know about her family and if they forgive her.
The applicant gave evidence that she thinks she got married on [a certain date in] July 2008. She stated that neither she nor her husband told their family members about their wedding. She stated that they wanted to keep their marriage a secret. She stated that if her parents then forced her to get married she could say that she was already married. She stated that after their marriage she and her husband lived separately. She stated that she continued to live with her grandmother. She stated that her husband left the house he rented next door and rented another house far from her grandmother’s house. When asked why he did this, she stated that would be difficult to live separately after they were husband and wife. She stated that it would also be difficult for people to pinpoint what was going on.
The Tribunal asked the applicant whether she had any contact with her husband after they got married. She responded that she would go to the house where he lived once a week. When asked what their plan was after they got married, she responded that they planned to obtain Student visas and come to Australia. She stated that she did not want to hurt her grandmother so she wanted to keep her marriage a secret while her grandmother was alive. When asked her husband’s date of birth, she responded that she had forgotten. When asked where he worked, she responded that he worked in [Suburb 1] but she did not know the name of his [workplace]. When asked what kind of work he did, she stated that he may have been doing [a certain kind of] work. When asked whether he had any siblings, she responded that he had a sister but she could not remember his sister’s name.
The Tribunal finds the applicant’s evidence in relation to her relationship with her husband and their marriage to be implausible and unconvincing. Firstly, her evidence is that she is the [number] daughter in her family, her mother abandoned her at birth, she was brought up by her grandmother since birth and her father would visit her at her grandmother’s house in Latipur. Her evidence is that she stopped studying in Nepal in August 2006 and has not worked in Nepal. Her evidence is that her grandmother is very conservative and did not allow her to speak to boys. In these circumstances, the Tribunal finds it implausible that she would have been able to form a relationship with a man, get married, go to Church with him on Sundays, go to his house once a week after they got married (her evidence is that her husband moved to another house far from her grandmother’s house after they got married) and keep all of this a secret for 9 months.
Secondly, the applicant has provided to the Tribunal a copy of her Certificate of Marriage which indicates that she was married [in] July 2008. The Tribunal finds her explanations for why she secretly married a Christian man [in] July 2008, after meeting him for the first time in June or July 2008, to be implausible and unconvincing. Thirdly, her evidence that there was nothing important about her marriage raises concerns in relation to the genuineness of her marriage. Fourthly, her poor knowledge about her husband and the Church she claims to have attended in [Suburb 1] raises concerns about the credibility of her claims. Fifthly, her evidence is that her grandmother was looking for a prospective partner for her. She also gave evidence that she did not wish to upset her grandmother. This is not consistent with her conduct which was guaranteed to upset her grandmother.
Sixthly, the applicant has provided to the Department a document titled ‘Relationship Certificate’ as evidence of her marriage to her husband. This document was issued by [a state authority]. It contains photographs of herself, her grandmother, her father and her husband. It indicates that they are the relatives of the applicant. This document tends to indicate that she or her husband informed the [state authority] that they were married and provided them with the photographs. This is not consistent with her claims that she kept her marriage a secret. This document is also not consistent with her evidence that she has a mother, her parents have lived together throughout their married life and she has an older sister.

When the Tribunal raised an issue in relation to this document, the applicant responded that her parents’ marriage was not registered, her mother does not have citizenship and cannot apply for a passport. When asked what her mother’s country of citizenship is, she responded that her mother is a citizen of Nepal but she cannot get citizenship because she is illiterate and stays at home. The Tribunal finds this evidence to be non-responsive, nonsensical and implausible.
The Tribunal discussed with the applicant her written claims that she and her husband applied for Student visas to come to Australia, that they were involved in an accident [in] April 2009, that her family found out that she had married a Christian man, “discarded her” and never went to visit her in hospital where she was for more than 3 months, that her husband absconded from the hospital and she has had no contact with him since then. She gave evidence that she and her husband went to collect their passports at ‘night time’. She stated that her grandmother was very strict and she had to be home by [a certain time in the evening]. She stated that she urged her husband to hurry, they collided with another [vehicle], she fell off and [was injured].
The applicant gave evidence that her husband was not injured and had a scratch but she could not even stand up and was taken to hospital. She stated that the Police told her they needed to contact her parents. She stated that her grandmother did not have a telephone so she provided her father’s telephone number. She stated that her father and sister attended the hospital. She stated that the Police informed them that she was with her husband and they found out that he lived close by. She stated that the documents that she had provided to the Department in relation to her application for Student visas, including her Certificate of Marriage and photographs, were given to her father and sister and that is how they found out that she was married. She stated that she had collected these documents and her passport from the education agent and they were in her bag.
The applicant gave evidence that her father became very angry, said that he would not be responsible for anything and left. She stated that her sister told her that she had done the wrong thing, her grandmother would never forgive her and then left. She stated that her husband was not there. She stated that she was alone at the hospital and could not walk. She stated that a school friend visited. When asked how long she was at the hospital, she initially stated 2 months. She then changed her evidence and stated that it was for 1 week. She stated that she borrowed money from a friend to pay her hospital bill, discharged herself from the hospital, against her doctor’s advice, as she could not afford to pay the cost and went to a friend’s home.
The applicant gave evidence that her husband did not visit her at the hospital. She stated that she was in bed and could not walk. She stated that she told her friend where he lived but he was not there. She stated that they tried to locate his parents but were unable to do so. She stated that she has had no contact with him since [April] 2009.
The Tribunal finds the applicant’s evidence to be implausible and unconvincing. Firstly, her evidence is that she and her husband applied for Student visas. She stated that he was going to support her in Australia whilst she studied. She has provided to the Department, as evidence of her marriage, a letter dated [in] October 2008 from [a bank] in Kathmandu, Nepal. The letter is addressed to her in her maiden name and refers to her husband’s surname in brackets. It indicates that she was granted an education loan and that they had received personal guarantees from her grandmother and father. It also indicates that they had taken a mortgage over her grandmother’s property. In these circumstances, the Tribunal finds it implausible that her father and grandmother were not aware that she and her husband were married, had both applied for Student visas and were travelling to Australia together.
When the Tribunal raised this as an issue with the applicant, she responded that she went with her grandmother to the bank to apply for the loan. She stated that her grandmother did not read the documents. She then stated that she spoke to the authorities at the bank and told them to hide the fact that she was married and they prepared the loan documents accordingly. The Tribunal informed her that it had doubts that the bank would have agreed to be involved in this deception. The Tribunal also pointed out that the guarantors would have had to sign documents and that her father was one of the guarantors. She responded that they did not ask her father for anything. Her responses are inconsistent with the letter from the [Bank] that she provided to the Department and raise further concerns about her credibility and the veracity of her claims.
Secondly, the applicant provided to the Tribunal a copy of the Department’s Decision Record dated [in] November 2015. It indicates that, during her interview with the Department on [in] October 2015, she stated that she and her husband attended their education agent’s office [in] April 2009 to collect their Student visas. It indicates that she stated that they both had their visa labels on their passports. It indicates that she stated that after they left their education agent’s office they were involved in [an] accident. It indicates that she and her husband applied for Student visas in November 2008. It indicates that [in] February 2008 (should be 2009) her husband withdrew his visa application stating that he did not wish to accompany her to Australia. It indicates that, when the visa was granted [in] April 2009, she was the sole applicant.
The Department’s Decision Record dated [in] November 2015 indicates that when the delegate put this information to the applicant, during her interview [in] October 2015, she responded that she was not aware of this and stated that “maybe the accident was planned by him as well”. It indicates that she also stated that her husband had concealed his passport from her and put in his pocket when they collected it from the education agent. This is not consistent with her earlier evidence that they both had visa labels on their passports. The Tribunal finds it implausible that she would not have been aware that her husband had withdrawn his visa application and why he did so.
The Tribunal raised this as an issue with the applicant and noted that this could lead it to the conclusion that her relationship with her husband was not as claimed and that their relationship ended in February 2009 well before the [accident in] April 2009. She responded that she was not aware of his letter to the Department and if she had known she would not have married him. She stated that she would have married someone in Australia and had a better life. She stated that she was shocked that he had written to the Department. When asked what possible reason her husband could have had to withdraw his application for the Student visa, she responded that he was still acting until the visa was granted so she does not know what is going on. The Tribunal raised concerns that the marriage was contrived for the purpose of obtaining a visa to come to Australia. She responded that if he got married to get a visa to come to Australia he could have waited until after the visa was granted and then changed his mind so she is surprised.
The Tribunal does not accept the explanations given by the applicant. The Tribunal is of the view that, if her husband had withdrawn his visa application [in] February 2009, it is highly unlikely that he would have accompanied her to the education agent’s office [in] April 2009 to collect his visa and passport.
Thirdly, in her visa application the applicant claimed that she was in the hospital for more than 3 months, when her family went to the hospital and found out that she was married they left the hospital without seeing her and never visited her in hospital. She has filed with the Tribunal a copy of the Department’s Decision Record dated [in] November 2015 which indicates that during her interview [in] October 2015 she stated that she was in hospital for 1 month and her family did speak to her. It indicates that, when these inconsistencies in her evidence were raised with her as an issue, she responded that she had seen her family members but they did not want to see her face and that she had informed her migration agent that she was in hospital for a month and had not read her statement thoroughly.
During the hearing, the applicant gave a third version. She gave evidence of her conversations with her father and her sister at the hospital. She initially stated that she was in hospital for 2 months and then changed her evidence to 1 week. When these inconsistencies in her evidence were raised as an issue with her, she stated that there was a mistake in her written claims. She stated that she told her migration agent that she came to Australia 3 months after the accident but her migration agent thought she said she was in hospital for 3 months after the accident. Her evidence is that she came to Australia [in] September 2009. When the Tribunal pointed out that the accident occurred in April 2009 and September 2009 was more than 3 months later, she responded that maybe she cannot count. These inconsistencies in her evidence raise concerns in relation to her credibility and the veracity of her claims.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] November 2015. It indicates that she arrived in Australia [in] September 2009 on a Student visa that was valid until [June] 2011. It indicates that her Student visa expired and she thereafter remained in Australia as an unlawful non-citizen. She did not apply for a Protection visa until [May] 2015. The Tribunal raised this as an issue with her and noted that her delay of nearly 6 years after she came to Australia to apply for a Protection visa raised concerns in relation to her credibility and the veracity of her claims. She responded that she did not know about Protection visas. She then stated that her friends kept telling her to apply for a Protection visa. She stated that she was told that she had to see a lawyer and would be charged $5,000.00 or $6,000.00. She stated that in 2015 her friend told her that he would help her and she could repay him later.
The Tribunal is of the view that during the almost 4 years that the applicant lived in Australia unlawfully she put herself at risk of being deported to Nepal. The Tribunal is of the view that if she had genuine fears about returning to Nepal she would have done some research on the Internet to find out further information, ascertained that there are places where she could obtain free immigration advice obtained immigration advice and lodged her application for a Protection visa before her Student visa expired. She was in Australia on a Student visa, was studying in English and had access to computers. Her failure to do so raises further concerns about the credibility of her claims.
During the hearing, the applicant made new claims. She claimed that her grandmother passed away in June or July 2016. (She has not provided a Death Certificate). She claimed that she was the only person who was helping her. She stated that her mother will not allow her to go home. She stated that she is not sure if she is married or not. She stated that she thinks that her uncles who live in Kathmandu are Maoists and they can do anything to her if she returns to Nepal. When asked how she knows that her uncles are Maoists, she responded that they have been Maoists for a long time and assaulted her cousin until she was [severely injured] because she married a man from a different caste. When asked what assaulting her cousin had to do with them being Maoists, she responded that Maoists are strict and think they are always right. She stated that because they are from [a particular] caste and she did not marry the same caste they will think she ruined their reputation. She stated that they might kill her.
The applicant has not previously claimed that she was married to a man from a different caste. When asked whether there was any reason why she had not mention this previously, she responded that she was scared of her uncle. When the Tribunal noted that she had an opportunity to make this claim in her visa application and during her interview with the Department and had not done so, she responded that when she was preparing her visa application she was crying as she recalled the incidents and could not think properly. She stated that her migration agent told her that if she did not write everything down she would be sent back to Nepal. She stated that she feels that if she goes back to Nepal she will be killed. She then stated that she is afraid of returning to Nepal because she is single.
The Tribunal has serious doubts about the credibility of the applicant’s claim that she married a man from a different caste. Firstly, the Tribunal is of the view that if she is afraid that her uncle or uncles will kill her if she returns to Nepal because she married a man from a different caste, she would have made that claim in her visa application and mentioned it during her interview with the Department. Her failure to do so until the end of the hearing raises serious concerns about the credibility of this claim. When the Tribunal raised this as an issue with her, she responded that her grandmother was with her and she thought that because of that her uncles would not do anything to her. This is not consistent with her claim that her family “discarded” her [in] April 2009 after they found out that she had married a Christian man. She would therefore not have had the support and protection of her grandmother if she returned to Nepal at the time she applied for the Protection visa [in] May 2015. In the circumstances, the Tribunal would expect her to have made this claim in her visa application.
Secondly, if the applicant’s family found out about her marriage after the [accident in] April 2009, as she claims, her uncles had plenty of time and opportunity to harm her or kill her during the period of over 4 months between the [accident in] April 2009 and her departure from Nepal in September 2009 and did not do so. It is therefore highly unlikely that they would do so now particularly as she is no longer with her husband. Thirdly, in submissions dated [in] May 2015 to the Department, the applicant’s migration agent submitted that she was ready to depart Australia and was prepared to live by herself in Nepal but changed her mind after the earthquakes in Nepal in April 2015 and May 2015. This is not consistent with her claims that she is at risk of serious harm or significant from her uncles if she returns to Nepal and that she fears returning to Nepal because she is single.
When the Tribunal raised this as an issue with the applicant, she responded that she asked a lot of people for money in Australia and became hopeless. She stated that she decided to return to Nepal irrespective of whether or not she died. She stated that she thought that she could go somewhere else and live there in hiding. The Tribunal does not accept this explanation.
The Tribunal has considered the applicant’s claims that she fears returning to Nepal because she has no family support and is single. She gave evidence that she lived with her grandmother since she was a child. She stated that she has no friends, is isolated, is not a strong woman and is afraid of everyone. Her claims that she has no friends and is isolated is not consistent with her evidence that she lived with friends, after she was discharged from hospital following the accident [in] April 2009, until she departed Nepal [in] September 2009, when she considered committing suicide her friends encouraged her to come to Australia and start a new life here and she had a friend in Australia who supported her financially who has now returned to Nepal. Her ability to travel to Australia on her own, find accommodation and employment here, study here and make friends here without the support of any family members is not consistent with her claims that she is not a strong woman and is afraid of everyone.
In view of her willingness to return to Nepal, prior to the earthquakes in April 2015 and May 2015, the Tribunal has serious doubts that she has no family support and fears returning to Nepal for this reason and because she is single.
In her visa application, the applicant claimed that she is unable to work because of a medical condition and has no one to look after her or take care of her basic needs. She has filed with the Tribunal a copy of the Department’s Decision Record dated [in] November 2015 which indicates that during her interview with the Department she stated that she altered the Student visa label in her passport by changing the ‘must not arrive after date ‘from 2011 to 2013 as she was applying for a job at that time and needed to obtain a Police Certificate. When the Tribunal raised this as an issue with her, she responded that she thought that if her Student visa was valid until 2013 she could have “done something beneficial”. Her conduct and evidence indicates that she was seeking employment at that time and was prepared to fabricate evidence in order to assist her to do so.
The applicant’s claims in her visa application are also not consistent with her evidence to the Tribunal. Her evidence is that she started working in Australia in 2010 as a [Occupation 2] and in September 2016 she started working as a [different occupation] on a permanent part time basis. She stated that she receives a salary of [amount] per fortnight. She stated that she has savings of [amount] in a bank account.
The Tribunal discussed with the applicant its doubts that she would be at risk of serious harm or significant harm if she returns to Nepal because she is a single woman. The Tribunal noted that since coming to Australia she has now obtained a [diploma], has obtained work experience, has acquired new work and language skills which put her in a much stronger position to obtain employment in Nepal and support herself. She responded that it is difficult to find employment in Nepal. She stated that what you need is money and if you have money you can buy a business. She stated that she has a business mind but does not have the capacity to buy a business. When the Tribunal pointed out that she had [a significant amount of] savings in Australia, that that is a large sum of money in Nepal and that it should be enough for her to purchase a house or a business. She responded that she has to pay her migration agents fees and repay the money she borrowed from friends. She stated that that would leave her with a [lower amount]. The Tribunal does not accept that this sum of money is insufficient for her to either start a business or support herself financially until she obtains employment in Nepal.
The Tribunal has had regard to the submissions made by the applicants’ migration agent to the Department and the Tribunal. In his pre-hearing submissions to the Tribunal, he stated that the applicant fees persecution for reason of her membership of a particular social group being ‘women in interreligious marriages’ and ‘a single woman’.
In assessing the applicant’s credibility, the Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility and the case law. The Tribunal has also had regard to the Department’s policy guidelines and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Findings
Having considered all the applicant's claims and all the evidence, the Tribunal finds that she is not a witness of truth. The Tribunal finds that she embellished some of her claims and fabricated others for the purpose of obtaining a Protection visa.

The Tribunal accepts that the applicant was born on [birth date] at Kathmandu in Nepal. The Tribunal accepts that she and her family are Hindus. The Tribunal does not accept that her father is an [Occupation 1]. The Tribunal accepts that she completed her studies in Nepal in August 2006. The Tribunal accepts that she was not in paid employment in Nepal and was supported by her family. The Tribunal does not accept that her mother abandoned her at birth and that she was looked after by her grandmother.
The Tribunal does not accept that the applicant fell in love with a Christian man and did not inform her family members of her relationship as she was sure that they would not accept it. It follows that the Tribunal does not accept that she and her boyfriend decided to get married and go overseas where their religious differences would not be a problem. The Tribunal accepts that [in] July 2008 she entered into a marriage with a [man]. The Tribunal does not accept that he is a Christian or from another caste. The Tribunal does not accept that her family were unaware of the marriage until [April] 2009. The Tribunal is not satisfied that the marriage was genuine and is of the view that it was contrived for immigration purposes. It follows that the Tribunal does not accept any of the applicant’s claims that flow from her marriage.
The Tribunal finds that the applicant’s father and grandmother financially supported the applicant’s application for Student visas for herself and her husband and does not accept that her father and grandmother were not aware that the visa application included her and her husband. The Tribunal finds that they provided personal guarantees to the bank for her student loan and her grandmother consented to her property being used as security for the loan. The Tribunal does not accept that the bank connived with her to deceive her father and grandmother in relation to her marriage. The Tribunal accepts that her husband subsequently changed his mind and wrote to the Department in February 2009 withdrawing his application for a Student visa. The Tribunal does not accept that she was unaware of this at the time.
The Tribunal accepts that the applicant was [involved in an accident in] April 2009, suffered [injuries] and was hospitalised. The Tribunal does not accept that she had collected her documents from her education agent on the day of the accident. The Tribunal does not accept that she was with her husband at the time of the accident. The Tribunal does not accept any of her claims in relation to what happened at the hospital or after she left the hospital. The Tribunal does not accept that her family never visited her in hospital. The Tribunal does not accept that she stayed with friends, after she was discharged from hospital, until she left Nepal for Australia.
The Tribunal does not accept that the applicant’s relationship with her family members is as claimed. The Tribunal does not accept that her family declared her dead and performed death rituals in her name. The Tribunal does not accept that she tried to commit suicide and her friends suggested that she come to Australia and start a new life. The Tribunal does not accept that her family and society have ‘discarded’ her. The Tribunal does not accept that her grandmother has passed away. The Tribunal does not accept that she has no family members or friends to support her in Nepal, that she is isolated and alone, that she is not a strong woman and is afraid of everyone.
The Tribunal does not accept that the applicant is unable to work because of her medical condition. The Tribunal accepts that she has obtained [a diploma] in Australia. The Tribunal accepts that she has worked [in various occupations] in Australia. The Tribunal accepts that she has [an amount] in savings. The Tribunal does not accept that she has no one to look after her or take care of her basic needs. The Tribunal does not accept that, because of the earthquake in Nepal on 25 April 2015, she is unable to live independently if she returns to Nepal.
The Tribunal accepts that life as a single woman in Nepal would be more challenging than in Australia. However, the Tribunal is of the view that the educational qualifications she has obtained in Australia and the work experience, language skills and life skills she has acquired in Australia will stand her in good stead when seeking employment in Nepal. The Tribunal is also of the view that the money she has saved in Australia will enable her to set up her own business, should she wish to do so, or to support herself financially until she is able to obtain suitable employment.
The Tribunal has not accepted that the applicant was in an inter-religious marriage and/or an inter-caste marriage and therefore is not satisfied that she is at risk of serious harm or significant harm for any of these reasons if she returns to Nepal. In view of the above findings, the Tribunal does not accept that she is at risk of serious harm or significant harm for reason of being a single woman if she returns to Nepal.
Does Australia have protection obligations to the applicant under the refugee criterion?
Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that she will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if she returns to Nepal now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
The Tribunal has considered the applicant's claims under complementary protection.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if she returns to Nepal now or in the reasonably foreseeable future.
Having considered all of the applicant's claims, individually and cumulatively, and all the evidence the Tribunal is not satisfied that there is a real risk that she will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Nepal now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that 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 she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.

Linda Symons
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.
…

[2018] AATA 297

15 January 2018

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Immigration

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Procedural Fairness

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