1517425 (Refugee)

[2017] AATA 2197

1517425 (Refugee) [2017] AATA 2197 (25 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517425

COUNTRY OF REFERENCE:                  Nepal

MEMBER:David McCulloch

DATE:25 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 25 October 2017 at 9:05am

CATCHWORDS
Refugee – Protection visa – Nepal – Social group – Target of Unified Communist Party of Nepal –Maoist – Victim of forced donations – Alleged kidnapping and abduction – Credibility Issues

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

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA(1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Nepal, applied for the visa [in] November 2013 and the delegate refused to grant the visa [in] November 2015.

3. The applicant appeared before the Tribunal on 19 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4. The applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

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

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

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Report – Nepal, 21 April 2016, a copy of which was provided to the applicant in the hearing.

10. The issue in this case is the credibility of the applicant and whether, on 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

11. The decision of the delegate, a copy of which has been provided by the applicant to the Tribunal, indicates the following in terms of the applicant’s immigration history. [In] August 2013 the applicant applied for a Visitor Class [visa] which was granted [in] September 2013. The applicant arrived in Australia on that visa [in] October 2013. The application for the Protection visa was lodged [in] November 2013.

12. The application forms for the Protection visa provide the following information in relation to the applicant. The applicant was born [in date] [in] Panchathar, Nepal. The applicant speaks, reads and writes both Nepali and English. The applicant was married [in] February 2002. The applicant lists his mother, wife and a daughter living in Nepal.  The applicant’s father is deceased.  The applicant lived at one address at [Panchathar] from the birth until February 1998. From February 1998 until May 2012 the applicant lived at an address [in] Kathmandu.  From June 2012 until October 2013 the applicant lived at [another address]. The applicant provides no details of education. He indicates his occupation or profession before coming to Australia as ‘business’.  From April 1993 until October 2013 the applicant was [an occupation]. From January 2012 until October 2013 the applicant was [in another occupation] at [a business in], Kathmandu, Nepal.

13. The applicant provided the following written statement as part of the application for protection (not corrected for spelling or grammar):

    After the beginning of violent revolution of Maoist in Nepal in 2052 BS (1995A0), my family especially my father has been targeted by the Maoists and they gave him lot of troubles, threatening and he has been terrorized after the Maoists started their revolution because at that time my father had just retired from [the military] and he was living together with his family In the village.

    Our family has mother, father, [sons] and [daughters]; all in all we were a family of [number] members. My father was supporting our family and was also participating in the social works in the society. Since my father served in [the military], Maoists were forcing him to train their rebels and cadets for the army training skills.

    My father has been pressurized to train their cadets but my father could not accept the Maoist's forceful demands and so he was threatened from time to time to be killed, adducted or to be punished and because of the pressure from Maoists, my father died untimely due to [a health condition],

    I was studying at that time in Kathmandu and I was also doing different business to support my life in Kathmandu, in such situation, I was not able to return to my village. During that time Maoist told me that since your father did not support us in our revolution for the support of people's war so you must come and join our party

    Otherwise we will not keep you alive as the threatening came from Maoists constantly.

    I was not in favour to accept their threats and that was the main reason why Maoists went fully aggressive against me. During that time many young people who returned their villages were captured by Maoist and they were forcefully taken in their army.

    The cruelty of Maoists was so barbaric and repressive as a result the country was closed down and the people's war against the government continued. The fights between Maoists and National Parties continued. The Maoists started kidnapping and murdering

    The general public as well as the high post officials and businessmen and they also asked or the financial support and donation and Maoists also tortured, killed and kidnapped those people who were not supportive to them and who did not give donation to them and Maoists became more inhumane.

    During this time I was operating a business in Kathmandu and operating [another business] in [Kathmandu] in 2067 B.S. (2010AD). As Maoists used to come [to] my [business] but they did not used to pay fees instead they used to threaten us and just leave the place without finalizing the fees. Maoists used to ask for lot of financial donations and during that time, it was not possible to speak against them. The demand for the donation from Maoists started becoming uncommon type as the demand used to be very high sum amount of money, and I was not in a situation to support financially to them and I was not in a position to give them donation due to their cruel behaviour. Due to all these reasons, Maoists abducted me [in] 2067 B.S ([April] 2011 AD) and [injured me] and abandoned me in unconscious situation. Luckily, with the help from police I was treated at the [hospital].

    In the year of 2069 BS (2012AD), I established a [business] called [name] in [Kathmandu]. It had only been a less than a year since it started operating, Maoists burnt down my [business] into ashes In  [Kathmandu], After that My family and I are targeted by Maoists, Due to all these reasons, there was no secure environment in Nepal to do the work and businesses, but our business was OK.

    The constitution in Nepal could not be prepared by the government so the election for the Constitution Assembly was announced in the country, Maoist again demanded NRs [amount] from me to spend in their election as a monetary support. They called me saying that they will abduct and murder me if I do not provide them a political donation. In such situations, the government was not in position to provide security to the general public and as a result I was forced to leave the country Nepal in order to save my life and so I came to Australia with the help Of consultancy.

    In such a tough situation, to save me and my family from untimely death, I have a complete belief that Government of Australia will preserve and implement International Human Rights and will protect a right to live as a common citizen and also provide a refuge for an active person like me in this country.

14. A statement by the applicant’s representative to the Department repeats and clarifies these claims. It is indicated that after Maoists torched the applicant’s [business] causing a total loss, the applicant managed to restart the business. As fresh elections were announced in Nepal, Maoists began to ask for donations. The applicant was asked to pay Rp [amount] which he was not in a position to pay. The applicant was threatened with his life as a result. The applicant was sure that if he did not pay the donation he would be kidnapped or killed.

15. A further submission was made by the applicant’s representative to the Tribunal which repeats his claims.

    Independent information

    Political situation and political violence

16. 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

17. 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:

    Reports located indicate that inter-party violence amongst Maoists and the Nepali Congress has diminished considerably in recent years. 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

18. 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]

    Forced donations

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

1. DFAT Country Report – Nepal, 21 April 2016 provides:

   There are widespread reports of threats against businesses throughout Nepal. Threats such as coercion, extortion and forced donations, as well as kidnappings or coercion to join political parties, have been identified as the most common forms of mistreatment. However, credible sources told DFAT that the most common occurrence – forced donation – was generally seen as part of ‘doing business’ in Nepal. The practice reflects the intensely political nature of Nepali society and is confronted regularly by business persons. It also reflects the inability of Nepali political parties to formally and directly raise funds to support their activities. On this basis, DFAT assesses that while businesses themselves may be targeted, individual members of the private sector are ordinarily free from harassment and intimidation.[12]

   [12]  DFAT Country Report – Nepal, 21 April 2016, para 3.64

   Hearing, credibility, findings and assessment

2. 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.

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

4. The Tribunal has the following credibility concerns with the applicant’s claims.

5. Firstly, the applicant’s account of his [business] being set fire to by Maoists is inconsistent with media reports indicating the cause of the fire that destroyed the [business].

6. The delegate made reference to the applicant in the interview, and in the decision, to three media reports which refer to a [fire]  in Kathmandu in May 2013 which resulted in, amongst other premises, the applicant’s [business] being destroyed.[13] Those reports indicate that the fire started in another premises, [as] a result of a leaking [gas] [catching] fire. An employee reports that they tried to put out the fire but [the] fire spread across the whole building and into other premises.

   [13] [Source deleted.]

7. When the delegate put to the applicant that these reports suggested that the fire was simply an accident without any evidence that it was perpetrated deliberately by Maoists, the applicant said that he had no comment. When these media reports were put again to the applicant in the Tribunal hearing, the applicant did provide an explanation.

8. The applicant indicated that the press were intimidated, so that they did not report that Maoists were, in fact, responsible for the fire. When the Tribunal put to the applicant that it seemed unlikely that the Maoists would seek to target the applicant by setting fire to another building, the applicant indicated that this was a tactic to make it less obvious that they were targeting him.

9. The Tribunal is not persuaded by this explanation. The Tribunal considers it very unlikely that Maoists would have concocted such an uncertain and extreme plan to target the applicant. There would be little certainty that setting fire to one building would result in destruction of a nearby building. The Tribunal considers that the path of the fire would be outside of the control of those setting the fire. Further, setting a fire that destroyed many premises would be an extreme attempt to extract revenge on the applicant given the many others that it harmed.

10. The Tribunal is also not persuaded that the media would have failed to have reported the involvement of Maoists in the fire, had they been involved. It is clear from the independent information in this decision that there is open reporting of the violent activity of Maoists in Nepal.

11. The Tribunal is of the view that the destruction of the [business] claimed as being owned by the applicant was an accident. The Tribunal is not satisfied that the fire was caused by Maoists seeking to harm the applicant and the [business]. The Tribunal considers that the applicant has been untruthful in seeking to claim that the fire was the responsibility of Maoists seeking to harm him. The Tribunal finds it telling them the applicant had no comment to the independent information put to the applicant in the interview but then had a detailed explanation in the Tribunal hearing. The Tribunal is of the view that the applicant manufactured this explanation after having the opportunity to reflect on the independent information put to him at the interview.

12. This adverse credibility assessment in relation to the applicant is made also considering the cumulative impact of all the credibility concerns raised in this decision.

13. Secondly, the applicant’s account of being kidnapped by Maoists in April 2011 was inconsistent, vague and implausible. In the interview with the delegate, the applicant said that he was abducted by [number or number of] individuals in a [vehicle].  In contrast, in the Tribunal hearing the applicant said that he was abducted in [another vehicle]. In response to this inconsistency the applicant said that the incident happened a long time ago which has affected his memory. The Tribunal is not persuaded by this explanation. Whilst the Tribunal might accept that the applicant did not have a clear recollection of the type of vehicle that he was abducted in, the applicant’s evidence has not been that he could not remember. Instead he has given contradictory specific accounts of the type and colour of the vehicle. Given the inconsistencies, the Tribunal considers that the applicant has simply invented different accounts in the interview and then in the Tribunal hearing.

14. The applicant’s explanation as to the reasons for him being abducted did not make sense, given what happened in the kidnapping, and its timing. In the hearing, the applicant indicated that he was abducted because, although he had been paying some donation amounts requested by Maoists, they were requesting more amounts which he did not pay. The applicant indicated that Maoists were also seeking to harm him because he had refused to fight with them during the insurgency.

15. The applicant gave evidence in the hearing that the Maoists took him into the jungle, [injured him], that he became unconscious and he was then found by the police. The Tribunal put to the applicant that it would have expected that the Maoists would have used the kidnapping to intimidate and make arrangements for the further payments of donations that were being sought. The applicant indicated that this did not happen.

16. The Tribunal does not consider it plausible that the applicant would be kidnapped on the basis that the Maoists wanted more money, but there would be no arrangements to extract further money. No evidence was provided by the applicant that Maoists sought to extract further money from the applicant in the few months following the kidnapping.

17. In relation to claims that the applicant was kidnapped because he failed to fight for the Maoists during the insurgency, the Tribunal asked the applicant how it made sense that this would be a concern five years after the insurgency had ended in 2006. The applicant indicated that he had been targeted by Maoists on an ongoing basis. However, when the Tribunal pressed the applicant for details of this, the applicant indicated that there had, in fact, been no action since the insurgency until issues arose in 2010 and following.

18. The applicant’s evidence as to how police rescued him was vague and implausible. The applicant simply said that he was unconscious and that police found him and took him to hospital. When the Tribunal asked the applicant how police found him in the jungle, the applicant said that he did not specifically know, but speculated that perhaps someone had reported the applicant. As indicated to the applicant in hearing, the Tribunal does not consider it plausible that the applicant would not have sought specific details from police as to the circumstances in which he was located, if the applicant himself was unconscious.

19. The applicant’s account of the kidnapping was vague and general, and did not convey to the Tribunal that the applicant was recounting an event that had actually occurred.

20. The cumulative impact of all these issues results in the Tribunal not being satisfied that the applicant has been truthful in claims that he was kidnapped by Maoists in April 2011.

21. Thirdly, the applicant’s account as to Maoists seeking from the him Rp [amount] (approximately $AUD [amount]) in the lead up to him coming to Australia, is not plausible to the Tribunal. In the hearing the Tribunal discussed with the applicant, the information contained in the DFAT report set out in this decision concerning enforced donations in Nepal. As discussed with the applicant in hearing, requests for donations by political groups in Nepal is part of the culture and is seen as part of doing business. There is no evidence before the Tribunal that donations are requested of such extreme amounts that they would drive businesses to the wall. Those seeking donations would have an incentive that the businesses continue to operate to provide the opportunity for further donations to be provided over time. The Tribunal does not think it plausible that Maoists would request a donation of as much as Rp [amount], an amount that the applicant would find it very difficult to pay.

22. The Tribunal’s doubts are reinforced by the applicant’s evidence that he was not aware of any similar donation requests made by Maoists to his friend who had supported him in the rebuilding of the [business], and to whom he transferred the [business] when the applicant came to Australia. The applicant indicated that, despite having contact with this individual, he did not know if Maoists had been seeking large donations from him. The Tribunal has difficulty accepting that if the applicant had been extorted for a significant sum of money, in part because of operating a business, he would not have been concerned to find out from his friend who took over the business whether he had had similar concerns.

23. In the hearing, the applicant indicated that he was more specifically targeted for the large donation because of past issues (i.e. not fighting in the insurgency for the Maoists).  The Tribunal is not satisfied of this given the second credibility issue above.

24. This credibility issue is less significant than the first two matters, but it does buttress those concerns.

25. Fourthly, there are a myriad of inconsistencies as to the time period in which the applicant operated the [other business] in Kathmandu. The application forms for the Protection visa indicate that the [other business] operated from April 1993 until the applicant left for Australia in October 2013. In the delegate’s interview, the applicant indicated that the [other business] was opened in the 2062 in the Nepalese calendar (straddling 2005-2006), and was sold in 2067 in the Nepalese calendar (April 2010 to April 2011).  In the Tribunal hearing, the applicant indicated that the [other business] was sold some months after the kidnapping in 2012. In the written claims and in the Tribunal hearing the applicant indicated that the [other business] was opened in approximately (late) 2010.

26. In response to these inconsistencies iput to the applicant in the hearing, he indicated that the information in the Protection visa application form was incorrect, and he did not read the form carefully before he signed it.  He indicated that he did not say in the delegate interview that the [other business] was opened in 2062 or that it was sold prior to the kidnapping.

27. The recording of the interview is clear in the dates stated by the applicant. The applicant signed the Protection visa application form setting out relevant details of his claims and background. Whilst the issue of the precise operating period of the [other business] is of tangential relevance to the applicant’s claims, the numerous inconsistencies buttress other more significant credibility concerns on central matters, and reinforce the view that there has been a general lack of truth by the applicant in his claims.

28. The cumulative impact of these four credibility concerns are seriously undermining of the applicant’s credibility. The Tribunal is not satisfied as to key substantive claims made by the applicant. The Tribunal is not satisfied that the applicant was targeted by Maoists because he did not pay sufficient donations, or because he had not fought with them during the insurgency. The Tribunal is not satisfied that the applicant was kidnapped by Maoists in April 2011 as claimed. The Tribunal is not satisfied that the [other business] was sold because of problems from Maoists, including due to excessive donations being sought by them. The Tribunal is not satisfied that the applicant’s [business] was burned down by Maoists in May 2013 as claimed. The Tribunal is not satisfied that Maoists subsequently sought to extort the applicant for [amount] rupiah or any significant sum of money, with associated threats, causing the applicant to decide that he needed to flee to Australia for his safety.

29. The Tribunal is therefore not satisfied that the applicant has been specifically targeted by Maoists for the reasons claimed, or was subject to large donation requests, which he did not pay, such as to result in a real chance of him facing serious or significant harm when he returns to Nepal.

30. The Tribunal is prepared to accept, for the purpose of this decision, that the applicant did pay donations to Maoists and other political parties when operating business ,which is the cultural norm in Nepal and seen as part of doing business. The Tribunal would find that amounts paid were a relatively small proportion of the income of the businesses and did not affect the viability of the businesses. The Tribunal would not be persuaded that any such requests or payments constituted serious or significant harm or that any similar payments that would be made by the applicant in future, should he re-establish a business in Nepal, would constitute serious or significant harm.

31. The Tribunal is prepared to accept, for the purpose of this decision, that there may have been times when Maoists sought free food at the applicant’s [business] (as an adjunct or a form of a donation). Whilst the Tribunal acknowledges that the such requests would have been of some annoyance to the applicant’s business, the Tribunal is not persuaded that such requests seriously affected the operation of the business or constituted serious or significant harm or would suggest that the applicant faces a real chance of serious or significant harm for similar reasons when he returns to Nepal.

32. The Tribunal notes that in the interview with the delegate that the applicant indicated that he would be happy to return to Nepal if the political situation stabilised. The Tribunal discussed with the applicant in hearing information in the DFAT report which indicates a relatively peaceful political environment in Nepal today. While there are Maoists splinter groups DFAT assesses that the risk of harm from a political perspective is low. The applicant took issue with this assessment and indicated that the situation is still unstable and violent. The applicant’s representative had submitted that splinter groups are working to start a new armed revolution.

33. The Tribunal takes the DFAT assessment at face value.  As indicated, the Tribunal is not satisfied that the applicant has been specifically targeted by Maoists as claimed. The Tribunal is not otherwise satisfied that the applicant would face a real chance of serious or significant harm as a result of political instability in Nepal, including the activities of Maoists.

34. In summary, 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.

35. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason for any of the reasons claimed or for any other reasons.

36. 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 any of the reasons claimed or for any other reasons.

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

38. 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).

39. 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

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

    David McCulloch
    Member