1517653 (Refugee)

[2017] AATA 2580

1517653 (Refugee) [2017] AATA 2580 (2 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517653

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Luke Hardy

DATE:2 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 02 November 2017 at 10:36am

CATCHWORDS
Refugee – Protection visa – Nepal –Fears harm from partner’s relatives – Inconsistent evidence – Credibility issues

LEGISLATION
Migration Act 1958, ss.5, 36,65
Migration Regulations 1994 Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, [Mr A], is a citizen of Nepal. He entered Australia on what was evidently a photo-substituted passport issued in another person’s name [in] August 2010, over seven years ago. The passport [Mr A] carried contained a [temporary visa] that he did not use. He arrived via [a city in Australia] and moved immediately to a rural location. He had obtained a passport in his own name in 2008. He used that for travel [Country 1] in 2010 [in] June and to visit [Country 2] from [June to July] of the same year. He evidently re-entered Nepal voluntarily [in] July 2010 and stayed there for over a month before coming to Australia on the falsified passport.  He lodged a protection visa application in his own name [in] June 2014, presenting both passports with the application, and the delegate refused to grant the visa [in] November 2015. [Mr A] subsequently sought review of that decision by this Tribunal.

3. [Mr A] appeared before the Tribunal on 27 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issues

4. The main issue in this case is whether [Mr A] is entitled to protection in Australia as a refugee or, in the event that he is not, on complementary protection grounds. Upon review of all of the evidence in this matter, I find that another significant issue in this case is [Mr A]’s credibility.

5. For the following reasons, I have concluded that the decision under review should be affirmed.

   Claims to the Department

6. In his protection visa application form, [Mr A] claimed to the Immigration Department that he is an ethnic Nepali who can speak read and write Nepali. He also claimed to have had no formal education, having been [an occupation] all of his life.

7. Speaking to the reasons for his protection visa application, [Mr A] claimed he could not live in Nepal, that he had been beaten there, that his life was in danger there, that he faced threats there, and that he might be killed there by relatives, neighbours and other people in his village, which is called [Village], in [a] province. He claimed the authorities could not help protect him because they are not strong enough to protect the vulnerable in Nepal.

8. [Mr A] told the Department he had no documentary evidence to support any of his claims which, in my view, were very vaguely drafted in his original protection visa application.

   Evidence to the delegate

9. [Mr A] told the delegate at an interview [in] September 2015 that his reason for fleeing Nepal arose from his having been in a relationship with a woman of the lowest Hindu caste, the Dalits.

10. [Mr A] told the delegate he knew the woman, named [Ms A], because the [workplace location] on which she worked was adjacent to the one on which he worked.

11. [Mr A] explained to the delegate that [Ms A]’s [siblings] beat him. He also said they were in a hurry to see him and her get married and objected to his desire to delay the process until “later”. He said that when he expressed an intention to delay marriage until he was more independent financially the [siblings] beat him again and threatened to kill him. [Mr A] told the delegate he really delayed marrying [Ms A] because his village would not have tolerated him marrying a woman of a lower caste. The delegate was concerned as to why [Mr A] would have continued the relationship if he had no intention of marrying [Ms A].  Asked about the current status of the relationship, [Mr A] said that he and [Ms A] communicated once a week or so; however, he said he did not know if she was in a relationship with someone else. He told the delegate [Ms A] had moved away from her home and village to [Town 1] where she had a job.

12. [Mr A] did not appear to argue with the perception that the claimed harm in his case was localised, but said he could not afford to live in any other part of Nepal and had only been able to travel abroad thanks to money provided by his [sibling] who was working in abroad. The delegate apparently remained concerned as to why [Mr A] had not used the money to settle in another part of Nepal.

13. [Mr A] told the delegate he had [siblings] living and working in [Country 3]. He said he had travelled to [Country 2] from [Country 1] with the intention of entering [Country 4]. He told the delegate he never reached [Country 2] because he was turned around by [foreign authorities] and flew back to Nepal via [Country 5]. He told the delegate that he remained in Kathmandu for a month before coming to Australia on the falsified passport.

14. The delegate asked [Mr A] to explain his delay in applying for a protection visa and he said a friend in Australia had told him not to go out. He said he had only found out about having an [relative] here in Australia about twenty months or so before the interview.

15. The delegate found [Mr A]’s claims confused, inconsistent and unsupported, and also gave weight to the lack of any supporting evidence.

    Evidence to the Tribunal

16. At the Tribunal hearing, [Mr A] told me that his contact with [Ms A] had ended fourteen or fifteen months ago. He said that prior to that they used to communicate verbally around once a week through the Viber app.

17. [Mr A] gave me somewhat confused and inconsistent evidence as to why he could not return to Nepal. He claimed that [Ms A]’s [siblings] still intended to kill him because he had come to Australia without bringing her here with him or helping her to come here after him. Later, however, he claimed that [Ms A]’s family did not want him to return to her. He also claimed at one point that he himself had ended the relationship with [Ms A] around fourteen to fifteen months ago, but later claimed that it had just ended when [Ms A] went back [to] live in her village and stopped chatting with him on the telephone. On the one hand, he claimed that his [siblings] had threatened him for not wanting to marry [Ms A] but, on the other, he told me he had never discussed with her [siblings] the subject of marrying her. He also said that [Ms A]’s [siblings] remained angry with him for not calling her after he came to Australia and yet he also told me that he and [Ms A] spoke to each other on a weekly basis, more of less for about six years until around fourteen or fifteen months ago. He told me that he suggested to [Ms A] at some stage to marry someone else, and then told me almost immediately after this that he did not say so at all. He did not resolve any of these inconsistencies.

18. I asked [Mr A] if he had any evidence of the existence of [Ms A] and of his past contact with her. He said he did not because his mobile telephone is new. I put to him that Viber, which is reported to be a “cross-platform instant messaging and voice over IP application operated by Japanesese multinational company”[1] usually stores subscribers’ contact information in the “Cloud” thus allowing a subscriber to maintain his or her contact information across several concurrent and consecutive platforms, including old and new mobile telephones. Claiming that he was looking at his Viber app on his mobile telephone, [Mr A] said words to the effect of, “No. Nothing. She’s not there.”

    [1]

    Findings in relation to s.36(2)(a) of the Act

19. I accept that [Mr A] is [an occupation] from a village [in] Nepal. I accept that most of his siblings have jobs in foreign countries. I accept that [Mr A] does not wish to return to Nepal but I have to be satisfied that he faces a real chance of Convention-related persecution in the reasonably foreseeable future in the event of returning there. On the evidence before me I am not satisfied that he does.

20. Overall, I have found [Mr A] to be an unreliable witness, his testimony at the Tribunal hearing having been vague, confused and contradictory. I do not accept on the evidence before me that he was in a relationship with a woman called [Ms A] in his village area whose family threatened him. In view of the contradictory evidence in this matter, I do not accept that he was caught by her [siblings] while he was consorting with her or that any of the claimed harassment ensued. I do not accept that [Mr A] and [Ms A] maintained contact over several years since he came to Australia, let alone with a view to sharing a future together. I find that [Mr A] gave inconsistent evidence as to the circumstances in which he and [Ms A] ceased to be in contact.

21. [Mr A] said the reason why he did not have any pictures, letters, saved messages or other evidence of the existence of [Ms A] was that he is illiterate. I have taken this into account. Overall, I find it hard to accept that [Ms A] ever even existed but, for the purposes of this decision, I shall accept that she did; however, on the evidence before me, I find that [Mr A] has significantly exaggerated whatever social familiarity he and [Ms A] had with each other and that he has fabricated claims about past harassment and threats, and the ongoing nature of such threats. 

22. I give some weight in this matter to [Mr A] having returned voluntarily to Kathmandu in 2010 and having stayed there unharmed until he came to Australia. I give no weight to his use of a photo-substituted passport to depart Nepal in 2010 as he used his Nepalese passport around the same time without evident fear or difficulty to leave and re-enter the same country.

23. In view of the lack of consistency in the evidence he provided about his relationship at the Tribunal hearing, I give some weight in this matter to [Mr A]’s delay in seeking asylum in Australia.

24. Having considered all of the evidence before me in its entirety, I am not satisfied that [Mr A] faces a real chance of Convention-related persecution in Nepal in the reasonably foreseeable future. His claimed fear of persecution is not well founded. He is not a refugee.

25. For the reasons given above, I am not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore he does not satisfy the criterion set out in s.36(2)(a).

    Findings in relation to s.36(2)(aa) of the Act

26. Having concluded that [Mr A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

27. A person who is found not to meet the refugee criterion in s.36(2)(a) 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.

28. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

29. “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.

30. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

31. Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

32. 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.

33. Essentially, [Mr A]’s complementary protection claims rely on the same facts as his refugee claims. Those claims generally failed for lack of credibility and for not meeting the “real chance” test. In view of my findings of fact above, [Mr A]’s refugee claims can no more succeed as complementary protection claims.

34. Having considered all of the evidence in this matter I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk that [Mr A] will suffer significant harm.

35. Accordingly, I am not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

36. There is no suggestion that [Mr A] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).

    DECISION

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

    Luke Hardy
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

38. 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.

39. 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).

40. 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.

41. 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’).

42. 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.