1517524 (Refugee)

[2018] AATA 572

1517524 (Refugee) [2018] AATA 572 (21 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517524

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Roslyn Smidt

DATE:21 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 21 February 2018 at 5:36pm

CATCHWORDS

Refugee – Protection visa – Nepal – Domestic Violence claims – Social group – Single mother – Not legally divorced – Fears social stigma – Ex-husband political connections – Fears abuse by husband – Kidnap of son by in-laws – Husband not seeking custody of son

LEGISLATION

Migration Act 1958, ss 36, 65, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2.    The applicants, who are citizens of Nepal, applied for the visas on [date] November 2014 and the delegate refused to grant the visas on [date] November 2015.

3.    The applicant appeared before the Tribunal on 22 January 2018 to give evidence and present arguments.

THE RELEVANT LAW

4. 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.

5. 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).

6.    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.

7. 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’).

8. 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.

BACKGROUND

1. The applicant is a [age]-year-old woman from Nepal. Her parents, [brothers] and [sister] remain in Nepal. The applicant’s aunt and uncle reside in Australia. At the hearing she stated that her father had owned a [business] until about 10 years ago and had not worked since that time. She said that both of her brothers had studied overseas. One of them has never worked, the other earned a livelihood selling [goods].

2. The applicant studied [in] Nepal from [date] until [date]. During this time she [worked]. Between [date] and [date] she completed a degree in [Country 1]. Her parents paid her fees and living costs while she was studying. She also worked [casually] while studying in [Country 1]. After returning to Nepal she worked [in another job]. According to her protection visa application she worked at [this organisation] from September 2010 until February 2013. At the hearing she said that she stopped working in Nepal mid-2012. In Australia she worked part time in [a certain role].

3. The applicant was introduced to her ex-husband in mid-2011 by a friend of her brother-in-law. At that time he was in Australia on a student visa. Her family believed it would be a good match because he was from the same caste and religion. When he visited Nepal in December 2011 they got married and went to live with one of her husband’s [brothers] who lived in individual apartments in a building owned by the family. The applicant continued to live with her in-law after her husband returned to Australia in early 2012. At the hearing she initially stated that she continued to live there for about a year, but later said that she had only lived there for about three months after which she returned to live with her family.

4. The applicant arrived in Australia on [date] July 2013 as a dependant of her husband who held a [work] visa.  [On] [date] her son was born. Her husband was violent and their marriage broke down in mid-2104.  Her husband obtained permanent residence and remarried in about 2016.

5. On [date] November 2014 the applicant lodged a protection visa application. Her son was named in the application but could not be included because he was outside Australia. The son returned to Australia on [date] October 2014.

   CLAIMS AND EVIDENCE

6. In her submissions to the Department in 2014 and 2015 the applicant said that her ex-husband had been violent towards her throughout their marriage and she feared that he would harm or kill her and her son if they returned to Nepal. She also feared his family.  She claimed that they had powerful political connections in Nepal which meant he could act with impunity. She also claimed that she would suffer from social stigma and other problems because of her status as a single mother if she returned to Nepal. She said that she could not live with her parents because she would be expected to live with her in-laws and because they were in extremely poor financial circumstances. She also said that she planned to obtain a divorce from her husband.

7. In a submission to the Tribunal received on 16 December 2016 the applicant said that she and her husband had divorced. She claimed that her ex-husband would still seek to harm her if she returned to Nepal. She claimed that he had political connections with the Maoist Party and also with the Nepalese army, and said that when they argued he threatened to use these contacts to harm her. She said that she believed he had been involved in criminal activities while he was in the Maoist Party and had been arrested in the past.  She claimed that she had also received death threats from her husband’s family, who also had political connections.  She said that one of her brothers-in-law had asked an aunt to meet him and she believed that this was because her in-laws wanted to take her son.

8. The applicant also stated that she had been in a relationship with another Nepalese citizen in Australia on a temporary visa who had also been violent towards her.  On one occasion the police were called when someone saw him being violent towards her. She said that the relationship had ended but she feared that he might blame her if this incident led to charges and his deportation to Nepal and that he might also seek to harm her.

9. On [date] October 2017 the applicant provided another statement. It states that she had learned that her former husband had been granted permanent residency in October or November 2016. She said that this made her even more fearful of returning to Nepal as her husband could come to Nepal and harm her and her son and flee back to Australia.   She also stated that her husband had remarried, despite not being officially divorced in Nepal. She said that this meant his second marriage would not be legal there which could cause problems for him and his family and increase the possibility that he might harm her. She said that because he had not divorced legally she could take him to court for damages and he would be required to pay her, which would anger his family as it would bring shame and financial loss.

10. The applicant also claimed that she had been advised by a lawyer to ask her husband to apply for a visa for their son. She said that her husband had tried to get her to hand over her son but she refused. She also claimed that her husband’s family had tried to contact her mother to pressure her to contact them. She said that her mother did not tell her much about this contact as she did not want to worry her.

11. The applicant provided a letter dated [October] 2017, signed [Ms A]. It states that the author had spoken to the applicant’s ex-husband several times after July 2017 to discuss visa options for their son. He had that he would let her know, but she had not yet heard from him. It states that the applicant had asked her to speak to her ex-husband on her behalf as she was too afraid to speak to him as a result of the violence she had experienced.

12. At the hearing the applicant confirmed that her ex-husband was first abusive to her during his visits to Nepal and this continued after she arrived in Australia. In January 2013 the police were called to their home following a violent incident.  On [date] April 2014 her mother came to Australia on a visitor visa. The violence continued while her mother was visiting. On one occasion her ex-husband physically assaulted her and threatened to kill her in the presence of her mother. In July 2014 he left the house they shared in [Australian suburb 1]. However, he would return and walk around the house in a threatening manner. In August 2014 the police were called when he began to cause problems. Following this the applicant moved to [another area]. Her ex-husband continued to call her and make threats. On [date] September 2014 she was granted an apprehended violence order (AVO). Her mother attended court with her in relation to this matter. He also appears to have been charged with stalking, but the charges were withdrawn. The applicant said that she knew nothing about these charges.

13. The applicant’s mother remained in Australia until [date] September 2014 when she returned to Nepal with the applicant’s son. The applicant said that she sent her son to Nepal because she had wanted to study in Australia.  She claimed that after her mother arrived in Nepal she began to receive calls from her ex-husband’s family who wanted to meet her. I asked if her parents-in-law had made any threats or demands in these calls. She said that she did not know and did not think her mother would have told her if they had. I observed that it seemed unlikely that her mother would not have told her if there had been threats.

14. I asked the applicant about her husband’s political connections in Nepal. She said that one of her [husband’s relative] had been a member of the Communist Party and it would be easy for him to arrange for someone to harm her. I asked why she believed her [husband’s relative] would wish to harm her. She said in mid-2012, while she was living in the same building as her in-law, she visited him at his apartment. He was drunk and arguing with his wife and he threatened to kill her [the applicant], but neighbours who were also visiting intervened. She initially said that there was no apparent reason for this attack, but later said she believed he may have been angry because her ex-husband had ceased sending money to his family and instead sent money to her. She continued to live in the same building with another [husband’s relative]. She initially said that she had not experienced any other significant problems while living with her in-laws, but later added that her [age]-year-old nephew had become angry when he was playing cards and tried to hit her.

15. I asked again about the applicant’s ex-husband’s involvement in politics. She said that he had been involved with the Maoist party when he was a student and he had told her he had been imprisoned, but she did not know why or for how long. I noted that she had also indicated that her husband had been involved in criminal activities. She said that the Maoist party had been illegal at the time he was involved and carried out illegal acts. She added that her ex-husband still had criminal connections in Nepal. When asked to clarify she said that she had paid money to an agent to help her with a visa application for Australia which had been unsuccessful. Her husband had put her in contact with a man to help her to get a refund of the fees paid to the agent. However, the man demanded a lot of money, so instead she went to the appropriate government department who detained the agent for a day, after which he refunded the money. She said that a school friend with contacts had arranged for her case to be handled by the department. She also had to pay the friend for that service.

16. The applicant confirmed that she and her husband were divorced. She said that he had never sought to reconcile with her after he left the family home and he had initiated the divorce proceedings. She said that they had always argued and she believed that he resented the fact that she was better educated than him. 

17. I asked the applicant what arrangements had been made for the custody of her son when she and her husband divorced. She said that her husband had not asked for custody and there had been no agreement regarding custody. I advised her that it was my understanding that their custody arrangements would have been specified at the time of the divorce. She said that her husband had not requested custody and she was unaware of any such arrangements.

18. The applicant said that her husband remarried about a year ago. However, he was not divorced under Nepalese law which meant she could bring a case for financial compensation against him. When asked she confirmed that she could obtain a legal divorce from her husband in Nepal.

19. I asked the applicant if she or her son had had any contact with her husband after he left the home in 2014. She said that he had not had any contact with their son and apart from the times he came to her address in [suburb 1] and the telephone calls mentioned earlier she had only been in contact with him in October 2016 when he contacted her because he wanted to include their son in his application for residency in Australia. She refused to allow this.  She confirmed that she had not had any contact with her husband since October 2016.

20. I reminded the applicant of the contents of the letter from [Ms A] which indicated that  [Ms A] had spoken to her ex-husband several times on her behalf in 2017. The applicant said that she had been advised that it was uncertain whether she would obtain protection and she had wanted to try and ensure that her son would be able to remain in Australia, so she asked [Ms A] who is a friend and a lawyer to speak to him. I observed that this suggested that she had been prepared to leave her son with his father in Australia if her protection visa failed. She said that she had not wanted to leave her son and she had been told that she could apply to stay in Australia if her son obtained residency.

21. I observed that it appeared that the applicant’s husband had refused to apply for a visa for her son which suggested that he had no interest in gaining custody. I also noted that he not sought custody when they divorced and had not attempted to contact her or their son for a number of years. I observed that it appeared that he had moved on and had no real interest in her or her son. The applicant said that this was not correct. She maintained that her ex-husband wanted to take his son. She said that she knew this because until about a year ago she had been in contact with his niece in Nepal who told her that he would do anything to get his son. She added that he could not harm her in Australia, but if he killed her in Nepal as he had threatened to do he would then be able to take his son. She claimed that her aunt and uncle in Australia were in contact with her former husband and he always knew where she was and what she was doing.  Finally, she claimed that she had been present in the room when  [Ms A] spoke to her husband and he had agreed to obtain a visa for his son, but only if she paid the application fees. I noted that [Ms A]’s letter did not suggest that this was the case. She said that [Ms A] knew that her husband had agreed to get the visa but then he stopped returning her calls. 

22. I asked the applicant to confirm that she feared that her husband and his family would harm her if she returned to Nepal primarily because he wanted to take his son. She confirmed that this was correct and added that her husband could pay someone in Nepal to kidnap her son or harm her. I asked the applicant if she feared harm from anyone else in Nepal for any reason. She said that she feared she would face problems because of her status as a single mother.

23. I advised the applicant that while I was aware that divorced women and single mothers could face problems in Nepal, it was my understanding that educated middle class women were less likely to face these problems. I noted that she was well qualified and had worked in the past and it also appeared that she could apply for financial compensation from her husband if she returned to Nepal. I also noted that her mother was clearly aware of the situation with her former husband and had continued to support her and it therefore appeared that her family would support her if she returned to Nepal. 

24. The applicant said she would have very little support if she returned to Nepal and would face significant problems because of her status as a divorced mother.  She said that her family were renting a home and it would be financially difficult for them to help her. She would be able to live with them for a year or so; she could not do so forever. She said that members of her extended family would find out she was divorced if she returned to Nepal and this would cause problems. She said that seeking compensation could cause problems with her former husband and his family and she was not sure whether she would risk taking this action.

25. I advised the applicant that I had some concerns about her evidence regarding the circumstances of her family in Nepal. I noted that she had claimed that neither of her parents had been working since before she went to [Country 1], but they were able to fund her study abroad for a number of years. She said that her parents had also sent her brothers to study abroad, but they had borrowed money and sold things to cover these costs. She maintained that they had limited resources.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. I accept that the applicant’s husband was violent towards during the time they were living together. I also accept that he may have threatened to kill her during that time and that he continued to harass her until she obtained an AVO in September 2014. However, I found some of her evidence regarding her fears on return to Nepal confused and unconvincing and I am not satisfied that she is an entirely truthful or credible witness.

1. In essence the applicant claims that her ex-husband would seek to harm her if she returned to Nepal, primarily because he wants to take his son but also because of his continuing animosity towards her. For the following reasons I do not accept these claims.

2. According to the applicant her ex-husband never expressed any desire to continue their marriage after he left the family home and he was the one who initiated divorce proceedings. In my view this is a strong indication that his main desire was to end the marriage. I also note that he remarried in 2016 which suggests that he has moved on from his relationship with the applicant and begun a new life. Finally, there is no suggestion that he continued to threaten or harass the applicant after September 2014. While I acknowledge that an AVO was in place for part of that time, I find the also total lack of contact between the applicant and her ex-husband for about three and a half years a strong indication that he has no continuing interest in harming her.

3. In reaching this conclusion I have noted the applicant’s claim that her aunt and uncle in Australia provide her ex-husband with information on her. However, this claim was not raised until I suggested at the hearing that her ex-husband was no longer interested in her. I believe the applicant made this claim to overcome problems in her evidence and I have given it little weight.

4. At the hearing the applicant stated that her husband’s main motivation for wishing to harm her was his desire to take her son. She claimed that he might kill or harm her if she returned to Nepal in order to achieve this goal. I find this claim far-fetched and implausible. The applicant’s ex-husband has had no direct contact with his son since he was an infant.  According to the applicant he did not seek custody or any arrangement regarding access during divorce proceedings. The only evidence which suggests the applicant’s ex-husband had any continuing interest in his son was his offer to include him in his application for permanent residence in October 2016.  However, when the applicant approached her ex-husband through an intermediary in mid-2017 to discuss the possibility of obtaining a visa for her son, he did not agreed to help, which indicates that he no longer had any real interest in obtaining custody or maintaining close contact with his son.  

5. In reaching this conclusion I have noted the applicant’s evidence that her husband’s niece in Nepal had told her that her ex-husband would do anything to get his son and that he had agreed to help her son to obtain a visa in 2017, but only if she paid the fees. With regard to the former claims, they were raised prior to the hearing. More significantly, if the applicant’s husband was prepared to do anything to gain custody of his son, I believe he would have attempted to maintain some contact with him in Australia.  With regard to the latter claim, it is at odds with the information in  [Ms A]’s letter and was not raised until sometime after I suggested that the applicant’s ex-husband’s failure to agree to assist his son obtain a visa suggested that he had no interest in gaining custody.  I believe the applicant would have provided this information when I first suggested that her ex-husband’s failure to help his son get a visa in 2017 suggested he was not interested in obtaining custody.  Furthermore, if the applicant’s ex-husband were genuinely and seriously interested in gaining custody of his son, I find it most unlikely that he would not have been prepared to pay the fees involved. I have given little weight to these claims.

6. As I do not accept that the applicant’s ex-husband has any interest in gaining custody of his son it follows that I do not accept that he would kill or harm her or arrange for others to do this on his behalf if she returned to Nepal in order to take his son. And even if I accepted that her husband did want to take his son, it is not plausible that the applicant’s ex-husband would fail to take up the offer to obtain a visa for his son to remain in Australia and instead wait until she returned to Nepal so that he could kill her or harm her or kidnap his son.  In reaching this conclusion I have noted the applicant’s evidence regarding her husband’s criminal background and political connections. However, as I do not accept that he has any intention of harming her or taking her son his background and connections in Nepal are irrelevant.

7. I have also considered the applicant’s evidence that her former in-laws have contacted her family in Nepal and attempted to meet them which she believes suggests that may seek to harm her or take her son if she returns to Nepal. However, apart from the drunken attack by one of her brothers in law in 2011 there is no evidence that any of her in-laws have threatened her or her family or made demands of them (beyond the request that they meet). The applicant has suggested that her family would be reluctant to tell her if her in-laws had made threats as they would not wish to worry her. I find this claim implausible. If her family had received threats I believe that they would have alerted the applicant of these problems. While it is plausible that the applicant’s in-laws may have contacted her family because they are interested in maintaining a relationship with her son, I do not accept that this contact suggests that they wish or intend to harm her or to take her son if she returns to Nepal.

8. After considering the relevant evidence, I am not satisfied that the applicant’s ex-husband wishes or intends to harm her or cause her to be harmed if she returns to Nepal because he continues to bear animosity towards her or because he wants custody of his son or for any other reason. Nor am I satisfied that any member of his family would seek to harm her if she returns to Nepal.  I am therefore not satisfied that there is a real chance that she would suffer serious or significant harm if she returned to Nepal, at the hands of her husband, any member of his family or anyone else because he continues to bear animosity towards her or because he wants custody of his son.

9. I have considered the applicant’s claim that she and her husband are not legally divorced in Nepal which means that she would be able to seek compensation from him if she returned to home and this would place her at risk of harm. The applicant stated at the hearing that it is possible to obtain a divorce in Nepal and I find it highly unlikely that the applicant’s ex-husband would not have obtained a legal divorce in Nepal if this left him vulnerable to significant problems. In any event, she indicated at the hearing that she was unlikely to seek compensation. I find the claim that her husband or members of his family would harm her to prevent her from seeking compensation mere speculation. I am not satisfied that there is a real chance that she will suffer serious or significant harm on return to Nepal because her husband or in-laws would take steps to prevent her from seeking compensation through the Nepalese courts.

10. I have also considered the applicant’s claim that she is at risk of harm on return to Nepal because of her status as a divorced woman with a child. She claims that she will face social stigma because of this and that she would be rejected by members of her extended family.

11. I acknowledge that divorced women and single mothers face negative societal attitudes in Nepal due to deep-seated stereotypes and traditional views on family honour. However, country information indicates that it is uneducated, poorer women who suffer most because of these attitudes. It also indicates that attitudes are changing, albeit slowly. The 2015 Constitution precluded discrimination on the basis of gender, reserves seats for women in the Federal Parliament and established a National Women Commission to provide advice to government and there are a number of groups advocating for human rights for single woman. As pointed out by the applicant, women can divorce their husbands and may also be entitled to a property settlement, although this appears to involve a difficult and expensive process.[1]

    [1] Department of Foreign Affairs and Trade, DFAT Country Information Report Nepal, 21 April 2016, pp 14-15; World Health Report Brief, Status of Single Women in Nepal, January 2017 at Gender and Land Rights Database, Food and Agriculture Organisation of the United Nations at Nepal Times, ‘Not so happily ever after: The number of Nepali women filing for divorce is rising’, 17 July 2014 at >

    It is clear from the evidence that the applicant has the support of her parents and siblings.  Her parents paid for education in [Country 1] and allowed her to live and work their independently, which also suggests that they do not have the same conservative views on the role of women as those held by many in Nepal. While it may be that her parents’ financial circumstances have changed, according to her evidence they would still be prepared to provide her with a home for a significant period of time.  Furthermore, she is well-educated and has worked in [Country 1], Nepal and Australia. While I acknowledged that she may experience some discrimination in the broader community including from members of her extended family, I am not satisfied that there is a real chance that she would face serious harm or discrimination because of her because of her status as a divorced mother if she returned to Nepal.

12. I have also noted the applicant’s claim in submissions to the Department that her son might be killed or harmed if he returns to Nepal. Apart from suggesting that her husband might kidnap her son to gain custody of him (which I do not accept: see above), this claim was not pursued at the hearing. In any event there is no credible evidence before me which suggests that the applicant’s son is at risk of serious or significant harm in Nepal for any reason. 

13. Finally, in written submissions to the Tribunal the applicant suggested that she might also at risk of harm from Nepalese man with who she had a relationship if he was charged with domestic violence offences and deported to Nepal. However, this is mere speculation. No evidence has been provided which suggests that he was charged with any such offence or that he has been deported from Australia. On the evidence before me I am not satisfied that there is a real chance that the applicant will suffer serious or significant harm on return to Nepal because of her relationship with this man.

    CONCLUSIONS

14. After considering the applicant’s claims both individually and cumulatively, I am not satisfied that she faces a real chance of suffering serious harm for any reason if she returns to Nepal within the reasonably foreseeable future. I am therefore not satisfied that they have a well-founded fear of persecution for a Convention reason.

15. The applicant’s claims for complementary protection are the same as those put forward in relation to her claims against the Convention. After considering all of these claims both individually and cumulatively I am not satisfied that she faces a real risk of experiencing significant harm.  Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that she will suffer significant harm.

16. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

17. The Tribunal affirms the decision not to grant the applicants protection visas.

    Roslyn Smidt

    
    

    Member