1517515 (Refugee)

Case [2016] AATA 4971

1517515 (Refugee) [2016] AATA 4971 (29 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517515

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Chris Thwaites

DATE:29 September 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 29 September 2016 at 1:18pm

CATCHWORDS

REFUGEE – Protection visa – Nepal – Federal Court remittal – political opinion – member of Communist Party of Nepal UML – Youth Force – threats and beating by members of rival group – Young Communist League (YCL) – no state protection – third country protection – Indo-Nepal Treaty of Peace and Friendship – difference between the right to enter and the right to reside – possible impact of applicant's status as asylum seeker on rights and treatment within third country – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Applicant C v MIMA [2001] FCA 229
Kola v MIMA (2002) 120 FCR 170
Kola v MIMA [2001] FCA 630
MIBP v SZUSU [2016] FCAFC 50
MIMA v Applicant C (2001) 116 FCR 154
MIMAC v SZRHU (2013) 215 FCR 35
Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50
MZZXS v MIBP [2015] FCA 1384
SZHYB v MIMIA [2007] FMCA 311
SZQWP v MIAC [2012] FMCA 532
SZTOG v MIBP [2015] FCCA 180
SZTOX v MIBP [2015] FCAFC 77
SZTQN v MIBP [2015] FCCA 188
V856/00A v MIMA (2001) 114 FCR 408

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 on 15 August 2011 and the delegate refused to grant the visa on 26 October 2012.

  3. On 28 November 2012 the applicant applied to the Refugee Review Tribunal for review of that decision.

  4. On 15 November 2013 the Refugee Review Tribunal affirmed the decision not to grant the applicant a protection visa.

  5. The applicant applied to the Federal Circuit Court for judicial review of that decision, and [in] 2014 the Federal Circuit Court dismissed that application.

  6. The applicant appealed that decision to the Federal Court of Australia, and [in] 2015 that court allowed the appeal and ordered the decision of the Refugee Review Tribunal be quashed and the matter to be returned to the Tribunal to hear and determine the application for review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

  7. The Tribunal has before it the Department’s file relating to the applicant’s protection visa…

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AGLC
1517515 (Refugee) [2016] AATA 4971
Case
[2016] AATA 4971
Decision Date

CaseChat Overview and Summary

The applicant, a member of the Communist Party of Nepal (UML) and its "Youth Force," sought protection in Australia due to threats and a violent attack by members of the rival Young Communist League (YCL). The dispute concerned whether the applicant had a well-founded fear of persecution based on his political opinion, and whether Australia owed him protection. The matter came before the Tribunal for review after a previous Federal Court remittal.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for reasons of his political opinion, and if so, whether he could obtain protection from the state in Nepal or from a third country. The Tribunal was required to assess the credibility of the applicant's claims regarding threats and the 2012 attack, and to consider the availability and effectiveness of protection in Nepal and potentially in a third country, such as India, under the Indo-Nepal Treaty of Peace and Friendship.

The Tribunal considered the applicant's evidence detailing his long-standing membership in the UML and its Youth Force, and the escalating threats from the YCL to join their party and engage in terrorist activities. It noted the applicant's account of a severe physical assault in 2012 after he refused to join the YCL, which resulted in his hospitalization. The Tribunal found that the applicant's fear of persecution was well-founded, stemming from his political opinion and membership in the UML. However, it determined that the applicant could not establish a claim for a protection visa because he could not demonstrate that he would be unable to obtain effective protection in Nepal, nor that he would be unable to access protection in a third country, specifically India, by virtue of the Indo-Nepal Treaty of Peace and Friendship. The Tribunal affirmed the delegate's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant appealed that decision to the Federal Court of Australia, and [in] 2015 that court allowed the appeal and ordered the decision of the Refugee Review Tribunal be quashed and the matter to be returned to the Tribunal to hear and determine the application for review. CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s files relating to the review application. The Tribunal has also had consideration of the delegate’s decision record provide to the Tribunal by the applicant. The applicant’s initial written reasons for claiming protection are contained in the visa application forms. In those forms the applicant states he left his country because of his political belief and opinion on UML (Communist Party), membership of that party’s village committee for more than 10 [years], and a membership of the “youth force” [village] committee in 2008. Another Communist Party Maoist (YCL)(Young Communist League) started threatening the applicant to quit the position and join them for their terrorist activities, to support them, for their own benefits. They started threatening the applicant, that they would kill him, unless he joined their party in 2008. The applicant thought it was not the right time to stay in the country and started seeking higher studies abroad, thinking that he will remain in his political beliefs and support from abroad, or he will study and go back to his country after a few years when the situation will be peaceful. The applicant states that in 2009 he arrived in Melbourne Australia legally on a student visa. He left his country because he got lots of threats about killing him, lots of threats to join the other Communist Party (Mao) youth wing YCL, and follow their principle which was not acceptable in his opinion and was against his Communist beliefs. The applicant indicated he had experienced harm in his country and stated he was threatened many times in the past that they will kill him. When he visited his family in [2012], a group of people attacked him. At first they approached him in a friendly manner asking how he was and how was Australia and if he still wanted to work with the UN El (Youth Association) etc.. Again they wanted the applicant to join their party because he had a good image in the locality, and if he joined them it would be a good benefit for them to attract the attention of the public. They again told him to join their party or work with the YCL. The applicant rejected their proposal and again they threatened him to leave that position. The applicant states that on the way to his friend’s house he was encountered (suddenly he saw groups with iron rods, knives, knife sticks), they forcefully took the applicant to the nearest jungle and attacked him severely. He was hit and punched, he fell down immediately and when he opened his eyes he was in hospital. He had pain in his body everywhere and had a big injury on his [body part]. The applicant states the mark of that injury is still painful. He was told after recovering in the hospital that some local people found out about the incident and called the police. He was nearly killed people witnessed said.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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