1517515 (Refugee)

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

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).
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.
On 28 November 2012 the applicant applied to the Refugee Review Tribunal for review of that decision.
On 15 November 2013 the Refugee Review Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant applied to the Federal Circuit Court for judicial review of that decision, and [in] 2014 the Federal Circuit Court dismissed that application.
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.
The applicant states that if he goes back he is a very fearful of the YCL cadres. The applicant states that even though they remain silent in front of the media, and even though they were suspended in the past, they are still active for their political and own benefits. The applicant states that if a media person writes or posts news, they threaten the media people, most of the facts now never come about. It’s very hard for journalists as well. The applicant states it seems that they are quiet, not doing any violence in front of the public and international media. However the applicant suffered injuries and was threatened and nearly killed by the youth wing, YCL cadres. The Mao government always protects them.
The applicant states that if he goes back to his country he will have a great fear that he will be attacked by them, that they will force him to work for them which is against his belief. The applicant states he will never change his belief and will never join them. The applicant states it is sure that they will again find him and kill him, or force him to join them which will be mental torture for him. The applicant states if he does not accept their proposal to work for them they will definitely kill him and the public and government will do nothing.
The applicant states the Maoist YCL cadres will attack or mistreat him if he returns to his country because it has already happened to him in the past, during the time of his last visit in [2012]. They want to use him for their own benefit, his belief (Youth Association) can’t be changed. The situation remains chaotic. Furthermore the Youth Association and the YCL always remained anti-groups. They don’t like each other and there have been many clashes between them. There is some kind of fear between both YCL and the Youth Association to travel or walk alone in the area and locality. Anyone can be attacked any time. There is some kind of fear by Young Communist League (YCL) towards the applicant.
The applicant states that from his early years 19-20s he strongly supported the Communist party which is opposite of Maoist. They started their political journey killing people and kidnapping. It was realised that some forces needed to stop their activities. The CPN-UML Communist party also formed (Youth Force) to stop their activities. After that Maoists formed a group called YCL , and the applicant’s party also formed the Youth Force to stop their crimes. However their crimes did not stop and they started attacking and killing the Youth Force people as well. There were clashes and encounters with the YCL many times in the streets, casino, everywhere and because his group were formed to stop them they automatically oppose them and clashed with them many times. The applicant worked in [a] village committee of the Youth Force from the beginning of the Youth Force believing in peace and humanity. At that time he was threatened, simply injured and escaped many times. The situation was more violent in the public and media at the time. Therefore both parties suspended YCL and dissolve the Youth Force. Now in the name of the Youth Association actively working against the government the Maoists YCL cadres. Therefore YCL always targeted the Youth Association people. YCL seems silent in front of the media and international people, but this is not correct. They hide all evidence of attacks and threats and people are forced to stay in blindness. The applicant was again attacked and very few media and local news knew. Maoists definitely support the YCL and protect them and are now in government. Even if they are not in government it is their habitual concept and political culture of killings, shootings, kidnappings and threatening that will never stop, even though they look quite friendly sometimes. They believe the applicant should change his party, which will never be acceptable to him, and they will attack him and force him and maybe kill him.
The applicant states he thinks the government and administration or authorities of his country can’t and will not protect him if he goes back because it happened in the past with the Youth Force (Youth Association) people many times. This happened to the public people as well. The applicant states the police will make a file with a statement that searching for the culprits is under investigation, and this will never come out who the criminal was and which area commander was involved in the crime. Police are also threatened that they will be transferred and degraded their position if they investigate. The applicant states that if somebody is killed by the YCL or kidnapped they say it is a political case and more complicated. Authorities also support or force to hide the accident.
The applicant states [that] a Supreme Court High official judge was shot and killed in front of the public. He had all power to hold the nation about that time and an election was going to be held. Some media and public people reported that Maoist YCL killed the judge however the real culprit was never known. Things have little changed and the YCL people are pretending that they are now quiet which is not true. It is a political culture of that country that all people of authorities are forced to be quiet. Even if they find out the attackers they will be out from jail very soon, most of them are involved by force or by nature they are corrupt. If somebody is killed a file will be opened for investigation, which will remain for many years and never come out. It is illegal to take weapons however Maoists YCL always have knives, pistols. The applicant states it is a culture or system in that country when somebody public or a party person is killed, police make a file, press start shouting, government authorities protect them as well.
The applicant questions how he can be alive in such a situation if he goes back. Police say they are still investigating the attack on him during his last visit in [2012], and the applicant is suffering injuries and harm but the authorities never protected him and cannot protect him in the future.
The applicant provided a number of documents in support of the application to the Department including: a copy of a newspaper article and its English translation published [2012] in relation to the attack upon him; a copy of his Yuba Sanhg (Youth Association) Nepal Membership card and its English translation; a copy of a letter from the Metropolitan police office [Town 1], dated [2012] referring to the attack and that a search to find the offenders is currently underway; a copy of a press release and its English translation from the Yuba Sangh (Youth Association) Nepal, [Area] Committee, [Town 1], dated [2012], noting the applicant’s activity and membership of the Communist Party of Nepal (CPM) UML affiliated Yuba Sangh (Youth Association), and referring to the attack on him, wishing him a speedy recovery, and demanding immediate action against the YCL cadres involved in the incident. The applicant also provided a copy of a notice published in [a] newspaper dated [2012] and its English translation, from the Communist Party of Nepal UML, [Town 1] Distrcit Committee, Communist Party of the Nepal UML Elction [Area] Committee, the Youth Association Nepal, [Town 1], [District] Committee, All Nepal Labour Organisation [Town 1] District Committee, and the Peasant Committee, wishing the applicant a speedy recovery from the attack. The applicant also provided a copy of his discharge ticket from the [Town 1] Hospital dated [2012]. The applicant also provided a number of media articles in relation to political violence in Nepal. He also provided a copy of a notice posted to his parents’ door and its English translation, the document is headed Nepal Communist Party-Maoist [Town 1] District Committee and is dated [2012] and is addressed to the applicant, and states they have come to learn that he has been regularly working against their party therefore he has been listed again for physical action. It states he was successful escaping them in the past; however he will not be left alive from their attack when they find him.
The delegate’s decision record indicates the applicant was interviewed on 5 October 2012. The delegate refused the applicant a protection visa on 26 October 2012 because the delegate found the applicant possesses a current legally enforceable right to enter and reside in India, and that he has not taken all possible steps available to availing himself of that right. Therefore the delegate found the applicant has current statutory protection in a safe third country under s.35(3) to (5A) of the Act and therefore Australia does not owe him protection obligations.
As noted above, the applicant applied to the Refugee Review Tribunal for review of that decision. That Tribunal’s decision record dated 15 November 2013 indicates that that Tribunal accepted the applicant had been involved in political clashes in the past and accepted he was attacked in [2012] by the YCL when he returned to Nepal. That Tribunal found the essential and significant reasons for the attacks was the applicant’s political opinion, and based on country information, that Tribunal accepted that authorities in Nepal were unable or unwilling to protect the applicant from the risk of harm. That Tribunal accepted the applicant would continue to be involved in politics if he returned to Nepal, and found there was a real chance he would be seriously harmed if he returned to Nepal, and that he had a well-founded fear of persecution for a convention reason in Nepal. The Refugee Review Tribunal considered the applicant’s right to enter and reside in India and the operation of s.36(3) – (5A) in the applicant’s circumstances.
The Refugee Review Tribunal’s decision record indicates that that Tribunal had regard to the terms of the 1950 Treaty of Peace and Friendship between India and Nepal, the consequential administrative provisions as currently set out by the Bureau of Immigration, Ministry of Home Affairs, Government of India, on its website, and the recent advice of Australia’s Department of Foreign Affairs and Trade (DFAT Country Advice IND42609) in relation to the practical situation. The Refugee Review Tribunal indicated it was satisfied that the applicant does have a right to enter and reside in India and that s.36 (3) of the Act applies to him. While that Tribunal accepted the Treaty does not confer citizenship, that is not required to meet the requirements of s.36 (3). Furthermore that Tribunal did not accept the applicant would lose his citizenship by going to India.
While the Refugee Review Tribunal accepted the applicant was at risk of harm in Nepal from the YCL, that Tribunal did not accept that the YCL operated extensively in India or would be able to track the applicant down in India or would want to track him down there. That Tribunal found that there was no real chance that the applicant would be seriously harmed by the YCL or other Maosit groups in India, and any fear of persecution on that basis was not well-founded. For the same reasons that Tribunal was satisfied there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there was a real risk he will suffer significant harm.
The Refugee Review Tribunal did not accept the applicant was at risk of harm as a Hindu in India, and based on the evidence before it found there was no real chance the applicant would be seriously harmed on account of being Hindu in India, and any fear of persecution on that basis was not well-founded. For the same reasons that Tribunal was satisfied there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there was a real risk he will suffer significant harm.
While the Refugee Review Tribunal acknowledged there is terrorist violence in India, it concluded there was no reason why the applicant would be the target of that violence, and found the likelihood that he would be targeted was remote. That Tribunal found there was no real chance the applicant would be seriously harmed in a terrorist attacks in India, and any fear of persecution on that basis was not well-founded. For the same reasons, that Tribunal was satisfied there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there was a real risk he will suffer significant harm.
That Tribunal also noted the applicant claimed he would be deprived of his cultural rights in India but did not elaborate on what they were or how this would affect him. That Tribunal did not accept on the evidence before it that any deprivation of rights would amount to serious or significant harm.
The Refugee Review Tribunal found that even when the applicant’s claims were considered cumulatively there was no real chance the applicant would be persecuted for a convention reason, and found that his fear of persecution in India was not well-founded. That Tribunal also found that even when his situation was viewed cumulatively, there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there was a real risk he would suffer significant harm. Based on the information before it, that Tribunal was satisfied the Indian authorities will not return the applicant to Nepal (or any other country). Therefore s.36 (4), (5), (5A), of the Act did not apply.
The Refugee Review Tribunal found that Australia is taken not to have protection obligations in respect of the applicant as he has not taken all possible steps to avail himself of a right to enter and reside in India. Therefore the Refugee Review Tribunal was not satisfied the applicant was a person in respect of whom Australia has protection obligations, and affirmed the decision to refuse to grant the applicant a protection visa.
As noted above, the applicant applied for judicial review of that decision, and appealed the Federal Circuit Court’s decision to dismiss his application to the Federal Court of Australia. In his reasons for judgement, attached to his orders quashing the decision of the Refugee Review Tribunal, Acting Chief Judge North noted the Refugee Review Tribunal did not refer to the authorities of V856/00A and SZRHU concerning the concept of the right to enter and reside in s.36 (3) in its decision record, and the reference to the DFAT advice about the “practical situation” suggested that that Tribunal did not understand that a right under s.36(3) of the Act is not established if all that exist is a capacity to bring about a lawful entry.

The applicant appeared before the Tribunal on 15 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.
At the conclusion of the hearing the Tribunal granted the applicant 14 days in which to provide any further country information and submissions.
On 21 April 2016 the Tribunal sent a copy of the DFAT Country Advice IND42609 referred to during the hearing to the applicant’s representative.
On 21 April 2016 the Tribunal sent a copy of the newly published DFAT Country Information Report on Nepal dated 21 April 2016 noting the section on the 1950 India-Nepal Treaty of Peace and Friendship, and the Tribunal extended the applicant’s time in which to provide any further submissions or material in support of the application until 10 May 2016.
On 6 May 2016 the Tribunal received a written submission from the representative addressing the application of s.36(3), (4), (5) & (5A), which is considered in more detail below.
RELEVANT LAW
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.
Refugee criterion
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).
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Third country protection: s.36(3)
The criteria for a protection visa in s.36(2)(a) and (aa) of the Act require that the non-citizen is a person ‘in respect of whom Australia has protection obligations’, either because they are a refugee or on complementary protection grounds.
For all applications, s.36(2)(a) and (aa) are qualified by subsections (3) to (5A) which set out circumstances in which Australia is taken not to have protection obligations. These provisions call for consideration of whether an applicant has access to protection in any country apart from Australia.
In effect, it provides that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification which operate, broadly, where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.[1]
[1] Subsections 36(4) – (5A).
Thus, an applicant may be found not to be a person in respect of whom Australia has protection obligations, even if they might satisfy the applicable definition of ‘refugee’ or meet the complementary protection criterion in s.36(2)(aa), if protection is available in another country.
Section 499 Ministerial Direction
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.
FINDINGS AND REASONS
Nationality
On the basis of the applicant’s consistent information provided to the Department and the Tribunal about his place of birth and citizenship of Nepal, and the copy of his Nepalese Passport provided to the Department, the Tribunal finds that the applicant is a national of Nepal.
Refugee criterion s.36(2)(a)
During the hearing the Tribunal spoke to the applicant about his back ground in Nepal and his political activities and experiences of threats and harm and his fears of returning to Nepal. The applicant’s oral evidence was generally consistent with the evidence and information he had previously provided to the Department and the Refugee Review Tribunal.
On the basis of that evidence the Tribunal accepts the applicant became involved in political activity as a student in 2006 and joined the CPMUL and was involved in the Youth Force and clashed with, and was threatened by, the YCL on numerous occasions before coming to Australia as a student in 2009. The Tribunal accept the applicant’s oral evidence that since he arrived in Australia he has not been involved in Nepalese politics. The Tribunal accepts the applicant returned to Nepal in 2012 to visit family thinking it would be okay/safe to return, but while he was there a group of YCL people beat him and he was hospitalised for a number of days. The Tribunal accepts that since the applicant has returned to Australia his parents have told him about the warning note left on their door. The Tribunal accepts the applicant fears the he would be attacked and harmed if he returned to Nepal.
Section 36(3)
During the hearing the Tribunal discussed the operation of s.36(3) and whether the applicant had a right to enter and reside in India as a national of Nepal under the 1950 Treaty Peace and Friendship (the Treaty).
The Tribunal noted country information[2] indicated the Treaty between Nepal and India was first signed in 1950 and that Article 7 of the Treaty states:
The Governments of India and Nepal agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement that privileges of a similar nature.
[2] Department of Foreign Affairs and Trade (DFAT) Country Information Reports Nepal, 15 July 2015, and 21 April 2016; Nepal’s Border Relations with India and China accessd 29 September 2016; DFAT Country Information request IND42609 18 September 2013, The Indian Express 2014 and beyond: India, Nepal agree to refresh 1950 Treaty : (accessed 15/4/16 and 29/9/16)
The Tribunal also noted the Indian Government Bureau of Immigration website indicates that Nepalese nationals entering India by land or by air from Nepal do not require a passport for entering into India. However they are required to possess, authorised identity proof. Further, if they are entering India from a place other than their own country then possession of their national passport is a must. All citizens of Nepal must be in possession of a passport when entering India for a place other than Nepal[3].
[3] (accessed 15/4/16 and 6/9/16).
In response the applicant told the Tribunal the Treaty has received a lot of criticism
The Tribunal noted country information indicates thousands of Nepalese people cross the border between Nepal and India and there is a lot of two way traffic between India and Nepal[4].
[4] : (accessed 15/4/16 and 29/9/16).
The Tribunal has also taken into consideration the post hearing written submission dated 6 May 3016. That submission refers to the AAT guidelines on third country protection and submits that based on the information made available to the applicant during and following the hearing on 15 April 2016, the Tribunal does not have sufficient evidence to make a finding that the applicant has a ‘right’ to enter and reside in India within the meeting of s.36(3).
The post hearing submission notes the word ‘right’ within s.36(3) has been subject of much deliberation in the courts, and that the current interpretation of Allsop CJ’s in v856/00A is considered the preferred approach, and provides the following extract :
The phrase in s.36(3) “however that right arose or is expressed” assists in the recognition that the source and incidence of the right can be diverse. It also assists in the recognition that ‘right’ is intended to be a wide conception. Especially in the light of the above phrase, I see no reason to restrict the meaning of the word “right” to right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement, or to exclude from the meaning liberty or permission or privilege which does not give rise to any particular duty upon the state in question. Such a liberty, permission or privilege would obtain its effective substance from its grant and thereafter from the lack of any withdrawal of it and from the lack of any existing prohibition or law country to its exercise, rather than from the existence with in the positive law of the state in question of a correlative duty, justiciable and enforceable in law, to recognise the right.
The submission notes the right does not only mean a legally enforceable right under domestic law, but also includes a liberty permission or privilege lawfully given. The right should be a presently existing right already granted and not a right which the applicant must acquire. The submission notes that in v856/00A Allsop J said this liberty, permission or privilege lawfully given, does not extend to “a practical capacity to bring about a lawful permission” or “a capacity or capability lawfully to enter and reside in a particular country or to bring about a permission to enter and reside”.
The representative submits that the applicant does not have a right to enter and reside in India under s.36(3) simply by virtue of his being a Nepalese citizen passport holder. It is submitted that in order for the Tribunal to consider whether the applicant has taken all possible steps to avail himself of a right to enter and reside in India, the Tribunal must first assess whether the applicant, in his individual circumstances, will be lawfully given the right to enter and reside in India.
The written submission notes that in SZHWI Allsop J found the Tribunal had erred in not considering whether the applicant had taken all possible steps to avail himself of a right to enter and reside in circumstances where this point had not been conceded by the applicant and was not otherwise in issue. The submission also notes that in SZRNT Maousaridis J found error in the Tribunal’s failure “to consider whether there was in fact any possible steps the Nepalese applicant could have taken to avail himself of the right to enter and reside in India”.
It is submitted that aside from considering whether the applicant has taken “all possible steps” the above-mentioned authorities do not clearly establish where the burden lies in relation to establishing that there is in fact a “right to enter and reside” as required by s.36(3).
The written submission notes the AAT guidelines on third country protection state there is conflicting authority as to whether the onus is on the applicant to satisfy the decision maker that he or she is not excluded under s.36(3), or whether the decision maker is obliged to address all the elements of s.36(3) even when those elements are not controversial, and to avoid doubt the decision maker should address all elements of s.36(3) to support a finding that an applicant is not a person in respect of whom Australia has protection obligations.
It is submitted that the onus must be on the decision maker to find that the applicant has a right and that the Tribunal has the evidentiary burden to show that there are possible steps he could take to avail himself of such a right.
It is submitted that according to the AAT guidelines it is important that the material before the decision maker adequately supports a conclusion that s.36(3) applies in a particular case. Where the relevant liberty, permission or privilege to enter and reside in the country derives from the law of the country, it will often be necessary to pay careful attention to the terms of the law in question. In some cases the distinction between whether an applicant has a relevant right and whether they have taken “all possible steps” to avail themselves of that right can be a fine one. As such the member must evaluate the information before him in determining whether a liberty, permission or privilege of the relevant kind exists.
The submission notes that a majority in the Full Federal Court in MIMAC v SZRHU found that while the terms of the Treaty of Peace and Friendship reflect a mutual right of residence they do not appear to give rights of entry and so did not of itself support a finding of a right to enter and reside in India for the Nepalese applicant. However the court indicated that the Tribunal should pay regard to the actual terms of the Treaty and also evaluate whether in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens satisfy the requisite test of a liberty, permission or privilege lawfully given to enter and reside in the country.
It is therefore submitted that the Tribunal must consider the terms of the Treaty. It is submitted that the terms of the Treaty and the circumstances in which it was agreed by the Indian and Nepalese governments did not foresee the situation of failed asylum seekers entering India (or being required to enter) by one or the other country by third countries not party to the Treaty.

The written submission notes the preamble to the Treaty states the government of India and the government of Nepal, recognising the ancient ties which have happily existed between the two countries; desiring still further to strengthen and develop these ties and to perpetuate peace between the two countries; have resolved therefore to enter into the Treaty of Peace and Friendship with each other …
It is submitted that the Treaty did not envisage circumstances were a person would enter and reside in one country or the other for the purposes of seeking protection. From a natural reading of the Treaty texts, the operation of the Treaty relates to political cooperation in relation to industrial and economic development on the basis of mutual acknowledgement and respect for the complete sovereignty, territorial integrity and independence of one another.
The submission notes that Article 7 of the Treaty states that the governments of India and Nepal agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, the participation in trade and commerce, movement and other privileges of a similar nature.
It is submitted that the terms of the Treaty are expressed in a manner which suggests the Treaty applies to nationals already in the territory of the other, so that the Treaty did not give a right of entry for Nepalese citizens into India, or vice versa.
It is submitted that the article relates to the reciprocal grant of privileges, including in the matters of residence and “other privileges of a similar nature”.
It is submitted that based on a natural reading of the Treaty, it cannot be concluded that the intentions of the drafters was to create a means by which individuals can seek protection in one or the other country. Such considerations must be taken into account in considering whether the Treaty may give rise (through administrative provisions or otherwise) to the applicant having a right to enter India from Australia as a failed asylum seeker or in seeking asylum.
It is also submitted that the Tribunal must consider the administrative arrangements. It is submitted that a statement on the Indian Bureau of Immigration’s website is not sufficient evidence to establish that the applicant (as a failed Nepalese asylum seeker entering India from Australia on the basis that he seeks protection from return to Nepal), has been granted an existing right (liberty, permission or privilege) to enter and reside in India.
It is submitted that the administrative arrangements described on the website and annexed to the submission, are not expressed in terms of rights, nor do they amount to anything more than “a practical capacity to bring about a lawful permission” or “a capacity or capability lawfully to enter and reside in a particular country or to bring about a permission to enter and reside”. Reference to the identity documents required by Nepalese citizens to enter India is not sufficient evidence to conclude that the applicant has been granted a “liberty, permission or privilege lawfully given” to enter India to bring the applicant within the ambit of s.36(3).
It is submitted that there is no evidence of any relevant regulation in the Passport (Entry into India) Rules 1950 made pursuant to section 3 of The Passport (Entry into India) Act 1920, or evidence of any order in the Foreigners Orders 1948 made pursuant to section 3 of the Foreigners Act 1946. The written submission provides extracts of those Acts, and submits that in light of the above analysis of the administrative arrangements in place for entry of Nepalese citizens to India, the Tribunal does not have sufficient evidence to support a finding that the applicant has a “right” to enter India in terms of s.36(3).
The written submission notes the Tribunal provided the applicant with a copy of the DFAT Country Information Report on Nepal dated 21 April 2016, and a copy of the DFAT Country Advice IND42609 relating to the entry of Nepalese citizens in India.
The written submission notes paragraph 5.21 in the DFAT Country Information Report states:
Relocation is a common experience for Nepalis. Millions travel each year to other countries seeking employment and other opportunities and to escape economic conditions at home. The open border arrangement with India, as per the 1950 India-Nepal Treaty of Peace and Friendship, allows large numbers of Nepalis to travel to and from India each year or reside in India on a long-term basis. In 2014, Nepal and India re-committed to this Treaty and agreed to review and update it.
The written submission refers to an online article in the KatmanduPost dated 1 February 2016 and states that due to the new constitution in Nepal, diplomatic relations between India and Nepal have frayed and proposals have been made to stop the free border movement between India and Nepal. This submission states that in any event, recommitment to the Treaty does not overcome the fact that the Treaty in itself does not create a “right of entry” within the meaning of s.36(3).
It is submitted that the DFAT information seems to relate to Nepalese citizens crossing the land border between Nepal in India for the purposes of seeking employment or better economic conditions. It does not address the situation from Nepalese citizens seeking to enter India by air from a third country, nor does it address the situation for individuals fleeing persecution in Nepal.
The submission notes the DFAT Country Advice IND42609 provides information relating to the administrative or other arrangements in place at the border for entry to India of a national of Nepal and reiterates the information currently available on the Indian Immigration Bureau’s website. It also states that Nepalese nationals may be excluded from entry to India if a “look out” notice is issued against the client by the Nepal Government advising that the client must not be allowed entry to India.
It is submitted that neither the Treaty nor the administrative arrangements available on the Indian Immigration Bureau’s website are expressed in terms of rights, nor do they amount to anything more than “a practical capacity to bring about a lawful permission” or “a capacity or capability lawfully to enter and reside in a particular country or to bring about a permission to enter and reside”. It is submitted that in terms of the “right” under s.36(3), “this liberty, permission or privilege lawfully given” does not extend to “a practical capacity to bring about a lawful permission” or “a capacity or capability lawfully to enter and reside in a particular country or to bring about a permission to enter and reside”.
It is submitted that the information available in the DFAT Country Information Report and the DFAT Country Advice IND42609 does not provide any additional information to support a conclusion that the applicant has a “right” in terms of s.36(3).
The written submission notes the doctrine of effective protection and that the UNHCR has stated that notions of a safe third country should be appropriately applied so as not to result in improper denial of access to asylum procedures, or to violations of the principle of non-refoulment. The UNHCR has also warned against situations where arrangements have not been made to determine which state should be responsible for considering an application for asylum and refugee status and for granting the protection required, thus avoiding orbit situations.
It is submitted that while s.36(3) has replaced the doctrine of effective protection, s.36(3) must not be used as a means by which Australia shirks its protection obligations to individuals found to be refugees. Rather, the provision should be used as a means to ensure that protection in Australia is provided only to those who do not have adequate, durable protection available elsewhere.
It is submitted that the protection obligations determination process is based on an assessment of a particular applicant’s individual circumstances, and that consideration of whether the applicant has a “right” under s.36(3) must also be approached in a manner which considers the applicants individual circumstances. To apply s.36(3) on the basis of finding that Nepalese citizens have a collective right to enter India when they hold a valid Nepalese passport would result in a failure to properly assess the applicants individual protection claims. The submission refers to the Department’s policy advice manual (PAM) in relation to determining if there is a liberty, permission or privilege lawfully given in a particular country, and notes that it states (amongst other things) that it is prudent to consider the actions of the agents of the State at the border and within the country’s administration to determine if persons, like the applicant, are given the right to enter and reside.
It is submitted that according to the Indian Bureau of Immigration website, every passenger arriving in India by air must complete a Form D Arrival (disembarkation) Card for foreign nationals. The information required on the card would result in the applicant’s intention to seek asylum in India as a failed Nepalese asylum seeker from Australia to become known to the Indian authorities. It is submitted that the Tribunal must consider whether the Indian authorities awareness of the applicant intends to seek asylum in India would impact whether he has an existing right to which he could avail himself. It is submitted that there is insufficient evidence that the subgroup of “failed Nepalese asylum seekers” (of which the applicant is a member) has a right to enter India, as distinct from all other Nepalese citizens.
It is submitted that the Australian government’s attempts to return noncitizen asylum seekers to India have previously caused the Indian authorities to clarify their stance on the return of noncitizens by the Australian government to India. The submission refers to an internet article from the Guardian.com. It is submitted that whether the Australian government’s decision to return failed asylum seekers to India, thus passing the burden of providing protection to those individuals onto the Indian authorities, is likely to be of an issue of diplomatic and the practical concerns, which must be considered by the Tribunal.
It is submitted the Tribunal must also address the question of whether the evidence supports a finding that the applicant personally has been lawfully given an existing “liberty, permission or privilege” to enter India. That is whether the evidence available to the Tribunal enables the Tribunal to make a finding that the applicant, as a failed Nepalese asylum seeker who will be sent to India from Australia, will be able to exercise an existing right (within the meaning of s.36(3)) to enter and reside in India.
It is submitted that Tribunal does not have sufficient evidence to find the applicant has a “right” and therefore s.36(3) does not apply to the applicant.
In conclusion in relation to s.36(3) the representative submits that the Federal Court has recently indicated that the questions of whether an ability of Nepalese citizens to enter India was a “liberty, permission or privilege lawfully given” in terms of s.36(3) is not settled, referring to SZUSU. The representative submits that the applicant does not have a right to enter and reside in India (or any other country) under s.36(3). The right to enter in s.36(3) means more than a capacity or capability to enter and reside in a particular country or to bring about a permission to enter and reside. The terms of the Treaty between Nepal in India do not give rights of entry. The submission notes the Indian Bureau of Immigration webpages did not support a finding that the applicant, as a Nepalese citizen, has a ‘right’ to enter India. Therefore s.36(3) does not apply to him. It is submitted that as a matter of law the administrative arrangements for rights of entry as advised by the Bureau of Immigration and DFAT do not give a right of entry according to the correct test for s.36(3) but merely a capability for Nepalese lawfully to enter in India or to bring about a permission for them to enter India.
The Tribunal notes s.36(3) states
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
The Full Federal Court in MIMAC v SZRHU, a case concerning the right of a Nepalese citizen to enter and reside in India on the basis of a Treaty between the two countries, indicates that s.36(3) does not refer to, or presuppose, a legally enforceable right under domestic law. It is sufficient to have a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn.[5] The Court observed that the terms of the Treaty appeared to give rise to a right of residence, but not a right of entry[6] and indicated that the Tribunal should evaluate whether, in combination with those terms, the administrative arrangements for entry satisfy the test of a liberty, permission or privilege lawfully given, to enter and reside in the country.[7]
[5] MIMAC v SZRHU (2013) 215 FCR 35. Justice Buchanan (at [89]), all other members of the Court agreeing, endorsed the construction by Allsop J in V856/00A v MIMA (2001) 114 FCR 408. The Full Court rejected the construction that s.36(3) required a legally enforceable right which had been stated in Applicant C v MIMA [2001] FCA 229 (Carr J, 12 March 2001) at [28], Kola v MIMA [2001] FCA 630 (Mansfield J, 30 May 2001) at [36], and upheld by the Full Federal Court in MIMA v Applicant C (2001) 116 FCR 154 and Kola v MIMA (2002) 120 FCR 170 at [63] respectively.
[6] MIMAC v SZRHU (2013) 215 FCR 35, per Buchanan J at [88], cf Flick J at [127]-[128].
[7] MIMAC v SZRHU (2013) 215 FCR 35, per Buchanan J at [90]. In MZZXS v MIBP [2015] FCA 1384 (North ACJ, 4 December 2015) at [14], the Court held that in order to assess whether entry is pursuant to a right to enter and reside, the Tribunal needs to know by what means the entry is permitted. In this case it failed to evaluate the evidence of the existence of the right – it simply listed three sources it had earlier referred to and concluded that they proved a right of the applicant to enter and reside in India.
The Full Federal Court provided further guidance on the scope of a ‘right to enter and reside’ in SZTOX v MIBP.[8] The Court confirmed that the ‘right’ in s.36(3) is not confined to a right which is sourced in domestic law, such as a statute, regulation or other legislative instrument. Rather, the source of the right might also lie in an executive act, such as a Treaty, executive policy or other executive instrument.[9] The Court emphasised that these examples are not exhaustive and that the proper construction of s.36(3) must accommodate the potentially wide range of laws and executive acts which could create a right or entitlement in the relevant sense.[10] The existence and source of the right will be a matter of evidence.[11]
[8] [2015] FCAFC 77 (Allsop CJ, Jagot and Griffiths JJ, 4 June 2015).
[9] SZTOX v MIBP [2015] FCAFC 77 (Allsop CJ, Jagot and Griffiths JJ, 4 June 2015) at [41]. This overturns the reasoning of the Federal Circuit Court in SZTOG v MIBP [2015] FCCA 180 (Judge Manousaridis, 30 January 2015) at [34] and SZTQN v MIBP [2015] FCCA 188 (Judge Manousaridis, 30 January 2015) at [25] that the right to enter and reside must be a right that arises under the law of the country.
[10] SZTOX v MIBP [2015] FCAFC 77 (Allsop CJ, Jagot and Griffiths JJ, 4 June 2015) at [41].
[11] SZTOX v MIBP [2015] FCAFC 77 (Allsop CJ, Jagot and Griffiths JJ, 4 June 2015) at [42]. Contrary to the view expressed in MZZXS v MIBP [2015] FCA 1384 (North ACJ, 4 December 2015) at [14] that the Tribunal needs to know by what means the entry is permitted and identify the existence and source of the right, the Full Court of the Federal Court in MIBP v SZUSU [2016] FCAFC 50 (Tracey, Flick and Katzmann JJ, 31 March 2016) held that there is no requirement for the Tribunal to identify the source of the right of entry with that degree of precision: at [38]. For instance, where the Executive Government of a third country publishes a statement that refers to the right of citizens of other countries to enter, and no question arises as to the authenticity of that statement, there is no reason why the Tribunal would need to inquire any further.

100. Also considering the scope of the ‘liberty, permission or privilege lawfully given’ test, the Federal Circuit Court has held that s.36(3) incorporates the following: a right to claim, against the appropriate state organ, entry and residence (and a corresponding duty on the state organ to grant such entry and residence); or a privilege, liberty or permission to enter and reside, whether or not that privilege, liberty or permission is revocable; and also a right that will arise on satisfaction of certain pre-conditions.[12] Each of these appears consistent with the test endorsed by the Full Federal Court in SZRHU.
[12] SZTOG v MIBP [2015] FCCA 180 (Judge Manousaridis, 30 January 2015) at [32] and SZTQN v MIBP [2015] FCCA 188 (Judge Manousaridis, 30 January 2015) at [25].
101. Therefore, while a legally enforceable right to enter and reside which is specified in the domestic law of a country will come within s.36(3), the scope of that provision is not limited to such circumstances; the relevant right could arise from an executive act, such as the terms of a Treaty or convention as implemented by particular arrangements, or a combination of both.
102. The Tribunal has taken into consideration the representative’s submission and the recent country information. While the Tribunal notes the online article in the KatmanduPost notes Nepal and India agreed to form an Eminent Persons Group (EPG) to review the whole gamut of India-Nepal relations, including the Treaty, and that Nepal formed their side of the EPG in 2016, India is yet to nominate their participants. While the Tribunal accepts the country information indicates both Nepal and India have begun to discuss reviewing their relationship in light of modern circumstances, and toward greater understanding and closer co-operation, there is no indication the relevant Articles of the Treaty of Friendship and Peace will be altered in the reasonably foreseeable future.
103. The Treaty states there shall be everlasting peace and friendship between the two governments and that they both agree mutually to acknowledge and respect the complete sovereignty, territorial integrity and independence of each other. The Treaty outlines the parties’ obligations to inform each other of serious friction or misunderstanding, their continued diplomatic relations, appointment of Consul Generals and other consular agents. The Treaty indicates the government of Nepal shall be free to import, from or through the territories of India, arms ammunition or warlike material and equipment necessary for the security of Nepal. Each government also undertakes to give the nationals of the other, in its territory, national treatment with regard to participation in industrial and economic development.
104. The Tribunal notes Article 7 of the Treaty indicates the Governments of India and Nepal grant, on a reciprocal basis, to the nationals of one country in the territories of the other, the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement that privileges of a similar nature.
105. The Tribunal agrees with the Buchanan J in SZRHU that the terms of the Treaty appear to give rise to a right of residence, but not a right of entry[13]. The Tribunal has therefore evaluated whether the administrative arrangements for entry, in combination with the terms of the Treaty, satisfy the test of a liberty, permission or privilege lawfully given, to enter and reside in the country.

[13] MIMAC v SZRHU (2013) 215 FCR 35, per Buchanan J at [88], cf Flick J at [127]-[128].
106. The administrative arrangements discussed with the applicant during the hearing are set out in the Indian Bureau of Immigration website which indicate that a citizen of Nepal entering India by land or air (from Nepal) does not require a passport or visa for entry in India and sets out a number of identity documents which can be used to establish their identity as a Nepalese citizen when travelling between Nepal and India. If they are entering India from a place other than their own country, possession of their national passport is a must. The website also states a citizen of Nepal must be in possession of a passport when entering India from a place other than Nepal, and a citizen of Nepal must have a passport and visa for India if he/she is entering India from China.[14]
[14] (accessed 15/4/16 and 29/9/16).
107. The Tribunal has taken into consideration the submissions that the applicant’s particular circumstances have to be considered, and the administrative arrangements described on the Indian Bureau of Immigration’s website are not expressed in terms of rights or amount to anything more than a practical capacity to bring about a lawful permission or a capacity or capability lawfully to enter and reside in a particular country or to bring a permission to enter and reside, and that the information before the Tribunal is not sufficient to establish that the applicant (as a failed Nepalese asylum seeker entering India from Australia on the basis that he seeks protection from return to Nepal) has been granted an existing right to enter and reside in India. The Tribunal has also considered the Guardian.com article referred to noting the article refers to the return of Tamils who had previously been living in India. The Tribunal notes the articles indicates India’s policy is to accept return of Indian citizens and other persons whose return it is obligated to accept under applicable Indian domestic law.
108. The Tribunal notes that in SZQWP v MIAC [2012] FMCA 532 (Nicholls FM, 19 June 2012) at [21, following SZHYB v MIMIA [2007] FMCA 311 (Barnes FM, 22 March 2007) at [33], commented that the decision-maker is not required to refer to a specific provision in the domestic law of the relevant foreign country to find that a right exists for the purposes of s.36(3), so long as the existence of the right is supported by evidence. The Tribunal also notes that in Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50 (31 March 2016) the Court stated that where the Executive Government of the third country publishes a statement of this nature (referring to the Indian Bureau of Immigration website) and no question arises as to the authenticity of the publication, there is no particular reason why the Tribunal needs to inquire further. The Tribunal notes there has been no issues raised with the currency or authenticity of the Indian Bureau of Immigration website publication.
109. While the Tribunal has considered the representative’s submission that the terms of the Treaty did not envisage circumstances where a person would enter and reside for the purposes of seeking protection, and that the applicant does not have a right to enter and reside in India simply by virtue of his being a Nepalese citizen passport holder, on the basis of the administrative arrangements for entry of a Nepalese national who holds a passport referred to in the Indian Bureau of Immigration website, read in light of the terms of the Treaty, the Tribunal finds that nationals of Nepal who hold a Nepalese passport have a liberty, permission or privilege lawfully given, to enter (otherwise than from China (without a visa) and reside in India, and therefore a right to enter and reside for the purposes of s.36(3).
110. The Tribunal has taken into consideration the DFAT Country Information Request IND42609 which indicates that Nepalese nationals may be excluded from entry to India if a ‘look notice’ is issued against the client by the Nepal government advising that the client must not be allowed entry to India. There is no evidence before the Tribunal to indicate a ‘look notice’ has been issued against the applicant by the Nepalese government. While the Tribunal has taken into consideration the submission that the applicant will identify himself as a failed Nepalese asylum seeker entering India from Australia on the basis that he seeks protection from return to Nepal, there is no evidence to indicate that such a group of Nepalese nationals who hold a passport are excluded from the right to enter and reside.
111. The Tribunal also notes the right to reside in India as provided for in the Treaty is not limited by time and the DFAT Country Information Request IND42609 indicates unlimited stay is granted to Nepalese nationals in India and there are no restrictions on their ability to remain, reside or work in India.
112. On the evidence before it the Tribunal finds the applicant is a national of Nepal and is the holder of a Nepalese passport which is valid until 10 April 2017, and therefore he has a current right to enter and reside in India within the meaning of s.36(3).
113. The Tribunal has considered if the applicant has taken all possible steps to avail himself of that right. During the hearing the Tribunal asked the applicant if he had taken any steps to avail himself of the right to enter and reside in India. The applicant told the Tribunal he had emailed the Indian embassy and had tried to get information about how he would be treated in India but did not get a response, and apart from that he had not. There is no evidence before the Tribunal that the applicant has purchased a plane ticket or made any arrangements to travel to India from Australia, and therefore on the evidence before it, the Tribunal finds the applicant has not taken all possible steps to avail himself of his right to enter and reside in India.
Subsections 36(4)&(5)&(5A)
114. During the hearing the Tribunal discussed the operation of s.36(4)&(5)&(5A) and questioned the applicant about if he held any fears of persecution or significant harm in India or if he feared India would return him to another country where he will be persecuted or where he will suffer significant harm.
115. In relation to persecution in India the applicant noted it was a free border between Nepal and India and anyone can enter and therefore he might be harmed by the same groups in the border area of India. He also told the Tribunal he is concerned the Indian authorities may return him to Nepal and told the Tribunal India had deported Nepalese students and journalist.
116. When questioned why the applicant thought the Indian government would deport him the applicant told the Tribunal he had read in the newspapers that they deport students and journalists for national security reasons, and if he did something in India they may do that to him.
117. When questioned what the applicant would do if he was in India, he told the Tribunal he is interested in politics and he might go into public places and talk about the Prime Minister of India and that will be an issue, noting when the Prime Minister of India was last in Nepal there was criticism and he blocked petrol and gas.
118. The applicant also told the Tribunal he has no family or friends in India and there is no social security and no basic living standards.
119. The Tribunal noted country information provided by DFAT Country Information Request IND42609 indicated in relation to circumstances in which a Nepalese national would be forcibly returned from India to Nepal, DFAT advised that Nepalese nationals already in India can be forcibly removed if convicted of a crime in either Nepal or India[15].
[15] DFAT Country Information request IND42609 18 September 2013
120. In response the applicant told the Tribunal he has not been to India and did not have much knowledge of these matters.
121. The applicant also told the Tribunal the RRT research indicated Nepalese have experienced trouble in India. The Tribunal noted it had been unable to identify any country information to indicate people from Nepal are targeted and harmed in India, or people who were involved in politics in Nepal are targeted and harmed in India or that the Maoists enter India looking for people from Nepal.
122. The applicant also told the Tribunal he was concerned about the hardship of living in India. The Tribunal noted the applicant was well educated and spoke a number of languages and had work experience in restaurants and hospitality in Australia. When asked why the applicant could not find similar employment in India the applicant told the Tribunal he had no idea.
123. The Tribunal also noted the DFAT Country Information Report published in July 2015 noting India has a huge population with the last census indicating a population of 1.2 billion people and 85% of the population identifying as Hindu. Given such a large population the Tribunal questioned whether anyone would be able to track or find the applicant in India. In response the applicant told the Tribunal he had no idea but thought it is very easy to find people. The Tribunal noted it was not aware of any country information suggesting it was easy to track or find someone in India. In response the applicant told the Tribunal there is no effective protection in India as there is a free border with Nepal and there is a lot of information to indicate India is not a proper place for Nepalese and the applicant to get effective protection.
124. When asked about who he needed effective protection from in India the applicant told the Tribunal he needed protection from the people who harmed him in the past, the YCL. The Tribunal noted it was not aware of any country information to suggest the YCL track and harm people in India. In response the applicant told the Tribunal he had seen reports of problems in the border area. When asked why the applicant could not stay away from the border area the applicant told the Tribunal he had no idea.
125. The applicant also raised his concerns that the Indian government cannot protect him as a failed asylum seeker from Australia. The applicant told the Tribunal he does not think India is a safe place for him because of the open border with Nepal and anyone can enter and therefore it is not safe for him.
126. The applicant also told the Tribunal he might be deported to Nepal if something happens to him in India. He noted there are religious clashes and violence between Hindu and Muslims in India. The Tribunal noted there was country information indicating there was some violence connected to religion in India. It also noted the country information indicates that 80% of the population identified as Hindu, and the Tribunal raised its concerns about the real chance something would happen to the applicant on that basis. In response the applicant told the Tribunal that potentially if he becomes involved in some activity, supporting the Hindu maybe, or one party maybe, and if the circumstances were intense he would have to meet the people. On questioning what the applicant thinks he would do in India that would raise his profile or attract adverse attention, the applicant told the Tribunal it would not be intentional, but if something happened, by chance if he got involved there he may be deported. Asked what he thinks he would get involved with, the applicant told the Tribunal it could be anything, and told the Tribunal he had been to demonstrations in Australia therefore he might in India. The Tribunal noted that when asked earlier in the hearing if he had been involved in politics in Australia he had not mentioned attending demonstrations, and had told the Tribunal he had tried to contact some parties, the applicant confirmed he had tried to contact some parties but he had also gone to demonstrations in relation to asylum seekers. He told the Tribunal he had also contacted the Greens party out of curiosity and told them he wanted to be a member and they had responded to his enquiry but his situation is so horrible in Australia he could not pursue this.
127. The Tribunal also noted the applicant had discussed his concerns of being removed to India during his hearing with the Refugee Review Tribunal (RRT) and noted he had raised concerns at that time in relation to not having any community in India, no social security or friends or family in India, as well as religious violence. The applicant told the Tribunal he was concerned about violence on the border. When asked if the applicant had any concerns about Maoists in India, the applicant thought there were Maoists in India but did not know much about them. The Tribunal noted it was not aware of any country information to suggest Maoists in India and Maoists in Nepal cooperate in order to track or harm people in India.
128. The Tribunal also noted the applicant had also raised concerns that his passport will expire during his RRT hearing. The Tribunal noted his passport was valid until 10 April 2017. When asked if the applicant knew of any reason why he could not have his passport renewed in India the applicant was unsure where he would go to do that.
129. The Tribunal also noted the applicant raised concerns about losing his cultural rights if he went to India during his RRT hearing. When questioned about this the applicant told the Tribunal if he went to India he does not know where he would go or what were his basic rights or if the Indian Department of Immigration will assure he will be taken as an asylum seeker. The applicant told the Tribunal he is concerned the Indian authorities would not be happy to take him as an asylum seeker, they would not be happy with Australia sending him to India in these circumstances. He told the Tribunal he contacted the Indian embassy after his RRT decision and asked them about his situation and was told on the telephone this is not their problem, the problem is between the applicant and the Department in Australia. He told the Tribunal he believes there is a vast difference between a normal citizen and an asylum seeker.
130. While the Tribunal has considered the applicant’s concern about losing his cultural rights in India, the applicant did not articulate any specific cultural rights when questioned about this. The Tribunal notes the country information indicates thousands of Nepalese enter India on a regular basis and the Tribunal is not aware of any information to suggest Nepalese lose any specific cultural rights in India. As noted in the hearing the Tribunal is not aware of any country information suggesting the Indian government treats Nepalese citizens who have applied for asylum in Australia differently to Nepalese citizens who have not applied for asylum in Australia. The Tribunal notes the Treaty gives reciprocal rights to residence, ownership of property, participation in trade and commerce and movement. As noted in the hearing, the applicant is a Hindu, which is the religion of 80% of the population in India, and the Tribunal does not accept the applicant would be unable to practice his religion in India. The Tribunal does not accept there is a real chance or real risk the applicant will lose his cultural rights in India, or if he did so it would be to the extent that it could be considered serious harm or significant harm. The Tribunal does not accept the applicant will be adversely treated for being a failed asylum seeker from Australia in India, and the Tribunal does not accept there is a real chance the applicant will suffer serious harm for this reason, or a real risk he will suffer significant harm for this reason.
131. When asked if the applicant had any concerns that India would return him to any other country the applicant told the Tribunal he had no idea.
132. The Tribunal has also taken into consideration the written submissions provided after the hearing. The Tribunal notes the representative submits that there is a real chance the applicant will face serious harm, and also a real risk the applicant will face significant harm, in India by way of:
real risk of arbitrary detention and mistreatment in detention by the Indian authorities on account of his status as a Nepalese asylum seeker and his political opinion;
real risk of physical harm from Maoists in India;
significant economic hardship that threatens his capacity to subsist

133. The submission notes the applicant would be present in India as a person seeking asylum, and according to a UNHCR report,[16] poverty is a key challenge for the majority of refugees and asylum seekers in India, who may face discrimination from local communities with little understanding of refugee issues. While the applicant would have a right to work in India due to his Nepalese nationality, country information suggest that many urban refugees worked in the informal sector or in occupations such as street vending, where they were subjected to police extortion, non-payment and exploitation. It is submitted that the applicant’s appearance in language will make him recognisable as a migrant worker and create a likelihood that he will face discrimination and exploitation when trying to access work.
[16] The Tribunal notes the UNHCR report referred to by the representative focussed on the refugee and asylum seekers under the UNHCR’s mandate in India and particularly on Rohingya refugees from Myanmar and on the situation for women and children.
135. While the Tribunal accepts some refugees and asylum seekers in India face some discrimination and exploitation, given the applicant’s particular individual circumstances, including his nationality and level of education and that he speaks a number of languages including Nepali, English and Hindi, and has significant work experience, the Tribunal does not accept the applicant would be unable to find employment or that he would suffer significant economic hardship that threatens his capacity to subsist in India.
136. While the Tribunal accepts the applicant has no family or friends in India and the social security and living standards are different than in Australia, as noted above the Tribunal does not accept the applicant would be unable to find employment and subsist in India, and the Tribunal does not accept the absence of family and friends and the differences in social security and living standards amounts to serious harm or significant harm.
137. The written submission also notes a recent Human Rights Watch report noting Maoist rebels continue to be active in certain parts of India. The submission notes the applicant’s former involvement in politics in Nepal and his commitment to become involved in politics again, and submits there is a real chance he will face harm on account of his political opinion either from Maoist rebels if he resides in an area where Maoists are present, or from the Indian authorities if he becomes involved in political protest in India.
138. While the Tribunal accepts the applicant was involved in political activity in Nepal prior to travelling to Australia, the Tribunal also notes the applicant’s oral evidence that he had not been involved in politics in Australia, although he later told the Tribunal he had participated in demonstrations in relation to asylum seekers and had tried to contact some parties including the Greens party. The Tribunal also notes that on questioning, the applicant told the Tribunal that he did not know much about the Maoists in India.
139. Based on the applicant’s oral evidence about his active participation in politics in Nepal and his very limited political activity in Australia the Tribunal considers the applicant’s political opinion and activity is very specific to politics in Nepal and specifically focussed on the dispute between the Youth Association and the YCL in Nepal. The Tribunal finds the applicant’s oral evidence that he may get involved in politics in India is merely speculative and did not identify a specific political agenda or opinion that would motivate him to do so.

140. The Tribunal notes country information indicates that political debate and protests in India are not uncommon and while there is some information to suggest some protests and activists experience violence, on the information before it, the Tribunal does not accept the applicant has or will develop the type of political opinion or profile or undertake the type of political activity that would attract adverse attention or harm in India.
141. The Tribunal notes the Human Rights Watch report referred to by the representative suggests the Indian government should investigate allegations that journalists are being prosecuted for their reporting on the conflict in central Chhattisgarh states and notes the armed movement by Maoists groups in nine states in central and eastern India, noting Maoist killed two journalists in 2013. The DFAT Country Information Report on India dated 15 July 2015 indicates Maoists in India, also referred to as Naxalites, have conducted an armed campaign since 1967 in India’s east ‘red belt’ states. While there has been a significant decline in the number of related deaths since 2010, in 2013 the groups still claimed responsibility for 192 deaths, nearly half of all the terrorism related deaths in that year.
142. While the Tribunal accepts that Maoists in India continue to conduct terrorist activities and killings, those incidents appear to be declining and the Tribunal does not accept the Maoists in India co-ordinate or operate in connection to the Maoists in Nepal, or would have any specific adverse interest in the applicant. There is no reason why the applicant would be required to spend time in the areas where Maoists do operate in India, and the Tribunal considers the real chance or real risk the applicant would be harmed by the Maoists in India is remote.
143. The Tribunal does not accept there is a real chance the applicant will face serious harm due to his political opinion or activity, or that there is a real risk the applicant will be subject to significant harm for this reason, in India, from Maoist or the Indian authorities or anyone else. The Tribunal does not accept there is a real risk of arbitrary detention and mistreatment in detention by the Indian authorities on account of the applicant’s status as a Nepalese asylum seeker and his political opinion.
144. While the Tribunal accepts the border between Nepal and India is open and many Nepalese enter India regularly, as noted during the hearing, the Tribunal is not aware of any country information to suggest the Maoists in Nepal search for people or track people in India and then cross the border into India to harm them. While the Tribunal accepts that there has been some violence in the border regions, the Tribunal also notes there is no reasons why the applicant would be required to spend time in those regions in India and the Tribunal is not satisfied there is a real chance the applicant will be face serious harm from YCL or other Nepalese political activists in India. The Tribunal does not accept that there is a real risk the applicant will be subject to significant harm for this reason, in India.
145. As noted during the hearing the Tribunal is not aware of any county information to suggest Nepalese nationals have experienced trouble or have been targeted for harm in India due to their nationality or race. The Tribunal has considered the written submission provided after the hearing and notes some of the country information referred to indicates a few individuals have been removed from India, and the Tribunal notes national security issues were cited as the reason as opposed to Nepalese nationality or race. On the information before it, the Tribunal does not accept the country information indicates Nepalese nationals experience trouble or have been targeted for harm in India due to their nationality or race. The Tribunal does not accept the is a real chance the applicant will face serious harm for this reason, and the Tribunal does not accept there is a real risk the applicant will face significant harm for this reason, in India.
146. The Tribunal notes the applicant’s religion is Hindu and that the country information discussed during the hearing indicated 80% of the Indian population identifying as Hindu. While the Tribunal accepts country information indicates there is some sporadic religious violence in India, there is no information before the Tribunal to indicate the applicant would be specifically targeted for this reasons and the Tribunal considers the real chance or real risk the applicant would be harmed due to his religion in India is remote. Therefore the Tribunal does not accept there is a real chance the applicant will suffer serious harm for this reason, and the Tribunal does not accept there is a real risk he will suffer significant harm for this reason, in India.
147. Similarly, while the Tribunal accepts the country information indicates there is some sporadic terrorist violence in India, there is no information before the Tribunal to indicate the applicant would be specifically targeted, and the Tribunal considers the real chance or real risk the applicant would be harmed by terrorist violence in India is remote. Therefore the Tribunal does not accept there is a real chance the applicant will suffer serious harm for this reason, and the Tribunal does not accept there is a real risk he will suffer significant harm for this reasons, in India.
148. In conclusion, having considered the applicant’s claims individually and cumulatively, on the evidence before it, the Tribunal does not accept there is a real chance the applicant will suffer serious harm in India because he is a failed asylum seeker from Australia, and/or due to his political opinion or religion, or for any other reason. Therefore the Tribunal does not accept the applicant has a well-founded fear of being persecuted in India.
149. Having considered the applicant’s claims individually and cumulatively, on the evidence before it, the Tribunal is not satisfied there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture, or cruel or inhuman treatment or punishment; or subjected to degrading treatment or punishment, in India. Therefore the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of a right mentioned in subsection (3), there would be a real risk that the applicant will suffer significant harm in relation to the other country.
150. Therefore s.36(4) does not apply in this matter.
151. The Tribunal has also taken into consideration the post hearing written submission in relation to s.36(5) and (5A)
152. The Tribunal notes the submission that India is not a signatory to the 1951 Refugee Convention and does not have processes to assess the applicant’s protection claims in order that the Indian authorities do not refoule him to Nepal. The Tribunal does not accept s.36(5) or (5A) requires the country to which the applicant has a right to enter and reside is required to be a signatory to the Convention or have a refugee protection framework.
153. The submission also sates the absence of any legal framework for refugee protection in India makes the situation of asylum seekers in India a precarious one, with their right to reside in India usually based on goodwill and tolerance of the government in power.
154. The Tribunal considers the applicant’s situation is different to many refugees or asylum seekers in India as he is a national of Nepal, and his right to reside in India is based on the Treaty, and as noted, unlimited stay is granted to Nepalese nationals in India under that Treaty.
155. The Tribunal accepts the applicant may inform the Indian authorities during his arrival processing in India that he was refused a protection visa in Australia and is therefore a failed asylum seeker. The Tribunal has also taken into consideration the written submission that recent tensions on the Indian Nepal border due to political protest in the Terai region suggest it is reasonable to conclude that the Indian authorities are likely to view any Nepali national who is politically active with some scepticism.
156. The Tribunal has also considered the reports referred to indicating Indian authorities have previously deported individuals due to their political opinion on the basis of vague reasons for their deportation. The Tribunal notes the report referred to was published in 2002 and states the reasons for the deportation was that the individual was a dangerous terrorist on a list of wanted offenders provided by the Nepalese authorities and that the individual was banned under the Prevention of Terrorist Act. While the report raises concerns about the adequacy of the processes followed in the matter and that of four other Nepalis previously deported, the Tribunal notes the report is over 12 years old. There is no evidence to suggest the applicant would be perceived or viewed by the Indian government in the same way.
157. As noted during the hearing, country information indicates thousands of Nepalese nationals cross into India on a regular basis. While the Tribunal accepts the applicant may identify himself as a failed asylum seeker during his entry processing into India, the Tribunal does not accept that due to political protests in the Terai region it is reasonable to conclude that the Indian authorities are likely to view the applicant with scepticism. The Tribunal does not accept the country information indicates the applicant will be treated differently to other Nepalese nationals or attract the adverse attention of the Indian authorities if he identifies himself as a failed asylum seeker from Australia.
158. While the Tribunal has taken into consideration the written submission that the applicant’s living condition must be taken into consideration in India and that many urban refugees work in the informal sector or in occupations such as street vending, where they are subjected to police extortion, non-payment and exploitation, the Tribunal notes the applicant’s particular individual circumstances are very different to the refugees referred to in the reports on this situation, including his nationality and level of education and that he speaks a number of languages including Nepali, English and Hindi, and has significant work experience. As noted above the Tribunal does not accept the applicant would be unable to find employment and subsist in India. The Tribunal does not accept the applicant will come to the adverse attention of the authorities in India due to being a failed asylum seeker and be deported for that reason.
159. The written submission notes that country information indicates Nepalese nationals already in India can be forcibly removed if convicted of a crime in either India or Nepal, and while the applicant has no intention of committing a crime if he is removed from Australia to India, it is submitted there is a real chance he may come to the attention of the Indian authorities due to his status as a failed asylum seeker from Australia; and/or due to his desire to claim asylum in India due to a well-founded fear of persecution in Nepal on account of his political opinion. The written submission notes there are reports suggesting the Indian authorities have charged and deported Nepalese nationals on the basis of a belief that the individual poses a threat to national security. The Tribunal notes the report referred to is a Times of India article from 2010 which indicates the police stated the deportation was because the person posed a threat to national security. There is nothing before the Tribunal to suggest the applicant would be viewed as a threat to national security in India.
160. The Tribunal does not accept the current country information indicates that the diplomatic and political relationships between India and Nepal are so strained that there is a real chance the Indian authorities will view the applicant’s arrival in India as an asylum seeker unfavourably, as submitted by the representative. While the representative characterises the applicant as an asylum seeker with a commitment to political activities, as noted above, the Tribunal considers the applicant’s political activities have been very limited since his arrival in Australia and the Tribunal does not accept the applicant will be viewed as a person committed to political activities, or that he would attract adverse attention for his previous political activities, in India and deported for that reason
161. Therefore the Tribunal does not accept the submission that there is a real chance the applicant will be deported or removed from India or returned to another country for any of the reasons claimed, or for any other reasons. In these circumstances it is unnecessary for the Tribunal to address the submission in relation to the whether the Indian authorities would make an assessment of their non-refoulment obligations prior to making a decision to remove the applicant from India.
162. The Tribunal does not accept the applicant has a well-founded fear that India will return him to another country, therefore s.36(5) and s.36(5A) do not apply.
CONCLUSION
163. As noted above, on the evidence before it, the Tribunal finds the applicant is a national of Nepal and is the holder of a Nepalese passport which is valid until 10 April 2017, and has a current right to enter and reside in India within the meaning of s.36(3). The Tribunal also finds the applicant has not taken all possible steps to avail himself of his right to enter and reside in India. Subsection 36(4)&(5)&(5A) do not apply, therefore, according to s.36(3) Australia is taken not to have protection obligations in respect to the applicant.
DECISION
164. The Tribunal affirms the decision not to grant the applicant a protection visa.
Chris Thwaites
Member 29 September 2016

[2016] AATA 4971

29 September 2016

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