1517936 (Refugee)

[2016] AATA 4550

1517936 (Refugee) [2016] AATA 4550 (16 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517936

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Meena Sripathy

DATE:16 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 16 September 2016 at 1:59pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Nepal arrived in Australia [in]July 2013 as the holder of a[temporary visa] . She applied for a Protection visa [in] July 2013 and the delegate refused to grant the visa [in] January 2014. On 21 February 2014 the applicant applied for review of this decision to the, then, Refugee Review Tribunal.  She attended a hearing before that Tribunal (differently constituted) on 8 December 2014 and on 2 March 2015, the Tribunal affirmed the decision.  The applicant appealed this decision to the Federal Circuit Court. 

3. [In] December 2015 the Federal Circuit Court of Australia quashed the decision of the Tribunal and remitted the matter to the, now, Administrative Appeals Tribunal, directing it to be determined according to law. The Federal Circuit Court found that the Tribunal fell into jurisdictional error identified by the majority of the High Court in MIBP v SZSCA [2014] HCA 45 by not addressing whether it would be reasonable to expect the applicant to remain and work in Kathmandu.

4. The issues in this review are whether the applicant has a well-founded fear of persecution in Nepal for one or more of the five reasons set out in the Refugees Convention; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Nepal, there is a real risk that he will suffer significant harm.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

6. Information provided in her Protection visa application indicates the applicant is a [age] old married woman, who has a husband and [a number of] children in Nepal.  She was born in [District 1], and lived in Kathmandu from 1999 to February 2009, and again from February 2009 until April 2013.  She lived in [City 1] in the period February 2009 to April 2013.  She travelled to Australia on her own passport issued in [2013], having obtained a [temporary]  visa issued in New Delhi.  She was employed as a government employee at the [Office] as a [occupation] from February 2009 to July 2013. 

7. In her reasons for leaving the country the applicant claimed her life was in danger because the Janatantrik Terai Mukti Morcha (JTMM) threatened to kidnap and get ransom from her.  She claims she paid [amount] Lakhs to save her job and her life, but after 2 weeks they continued to ask for her resignation and to flee the country or they will kidnap and kill her family. She resigned from her job and fled the country for this reason.  She was targeted because she is of Pahade ethnicity and she had a government sector job.  She claims the Madhesi people who are the majority in most of the towns in Nepal are displacing Pahade people.  They particularly target Pahade people in the government sector so that Madhesi people can be employed.  She claims she is also a member of the Nepali Congress and they have a different political opinion.  She was subject to intimidation, threats to kidnap, cruel and inhuman treatment, punishment, verbal abuse and threats to kill her family. She was in danger of being asked for more money even after she paid [amount] lakhs and moved from [City 1] to Kathmandu. She claims she fears she will be killed by JTMM if she returns.  She fears they will kidnap her to get more money and kill her as they fear she will return to her job. 

8. In a letter dated [in] July 2013, attached with her application, the applicant stated that she worked at[a government department] , [City 1].  Janatantrik Terai Mukti Morcha (JTMM) –Jwala, Mahdesi Jana Adhikar Forum Nepal, Madhesi People’s Rights Forum, Taria – Madhesh Loktantrik Party and her Madhesi neighbours started to threaten her to pressure her to resign from her job and move to another town. She refused to resign but moved to Kathmandu to save her and her family’s life and as she has a house there.  She requested and was granted a transfer from her work and moved there.  After moving to Kathmandu the JTMM and Madhesi parties continued to harass her.  They threatened to kidnap her and ask for money and kill her if she did not resign.  They demanded [amount] lakh rupees, which she agreed to pay.  After 2 weeks the threats started again.  She resigned from her job and fled the country to save her life.  She stated that she repeatedly wrote complaint letters to the District Administration Office but received no reply, because they are also afraid of the JTMM cadres. 

9. The applicant was interviewed by an officer of the Department [in] January 2014.  A copy of the audio recording is contained on the Department file and the Tribunal has listened to it.

   Evidence before the (differently constituted) Tribunal

10. The applicant submitted a letter dated [in]  February 2014 with her review application in which she referred to matters referred to in the delegate’s decision.  Specifically, in relation to the information that the JTMM had surrendered their arms in August 2012, she stated that there are still many splinter armed JTMM groups which are terrorising the country, especially the Pahade people. With regard to the reference in the delegate’s reasons to the Nepal-India Peace and Friendship Treaty which allows Nepalis to settle in India, she stated that JTMM splinter groups have Indian origin and she would not be safe there. It is also logistically not possible for her to live in a different country without any local government assistance for a family of four and there are limited job opportunities in India for Nepalese people. She stated that JTMM splinter groups also have presence in Kathmandu, and have been asking people to leave their jobs, and for money so they can fill their people in the government sector, so she would face unthinkable harassment and threats to her life in Kathmandu. She claims she will suffer significant harm, possible death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

11. The applicant attended a hearing before the (differently constituted) Refugee Review Tribunal on 8 December 2014 and the present Tribunal has considered the evidence she provided to that Tribunal, relevant details of which are included in Tribunal [file case number]  and the decision record. 

    Evidence before present Tribunal

12. The applicant provided a written submission dated 22 March 2016.  She claimed that she will lose her life if she goes back to Nepal as they will think she has earned a lot of money in Australia, and they will also think she will go back to her government job and back to her home town of [City 1] to live.  She fears they will kidnap her and ask for a large ransom.  She does not have much money left because she has already paid [amount] million rupees. She fears she will be subject to unthinkable torture, verbal and physical abuse and then be killed, and they will also kill her family.  She refers to the new constitution in Nepal and that the Madhesi parties did not approve it.  She claims the security situation has deteriorated considerably since the new constitution.  Padhesi people have been displaced and Nepal has become a battleground between Madhesi armed outfits and Pahade people.  Because of this Nepal has become a dangerous place to live anywhere for Pahade people.  Her past work in the government sector would also incite them to commit heinous crimes against her such as kidnapping, torture or killing her or her family.  She claims the Madhesi movement is widespread in Kathmandu Valley as well and they are organising daily armed activities of torture, kidnapping physical abuse and killing in Kathmandu Valley. They will find her even in Kathmandu. It is also not appropriate for her to resettle in India because India is hostile to Pahade people. Recently India blocked necessary goods to Nepal because it was opposed to the constitution which was introduced by a majority of Pahade people.  Though India has now lifted the sanction, the Madeshi people movement is still continuing with India’s continuous support. Therefore resettling in India is not an option for her.

13. The applicant appeared before the Tribunal on 31 March 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’s [relative] [Mr A], who is a registered migration agent, was present at the hearing, as her representative.   

14. The applicant lives with her [relative], [Mr A] and her [sibling] in[suburb].  They have been living together for the past one [year].  Before that she lived at several different addresses with people she knew from Nepal.  She works in a [business] in [another suburb] and sends money home to her husband and children. Prior to this job she worked as a[occupation]. In Nepal, the applicant has a husband and [children] aged [ages] who live in Kathmandu. Her children reside at [a] School in [Kathmandu].  They come home one weekend a month and stay with her husband.  They husband lives in their apartment, which they own.  He has been living at the same address for the past 9-10 years.  This is the same address she lived at prior to coming to Australia. She confirmed that her husband was living in Kathmandu prior to their marriage in 2057 or 2056 BS (approximately 1999).  She moved to Kathmandu after marriage.  Her husband is a businessman.  He had a [shop] in the same area they lived in, from before marriage.  He closed that shop some 2-3 years ago. 

15. The Tribunal asked the applicant if she has lived anywhere else in Nepal before coming to Australia.  She initially said she did not.  Then she said she had a job for 4 years from 2009 to 2013 in [City 1] and she lived between [City 1] and Kathmandu in this period.  When asked about the distance between these places, she said it was [number] minutes by plane.  She went back and forth once a month or so.  In [City 1] she lived with her mother.  She also has another [sibling], who also lives in [City 1] with [the spouse] and family.  Her [relative] has a [government job] which he has had for the last several years.  Her father passed away when she was [age] or [age] years old.  He also had a [government job]. Her mother has been supported by his government pension since his death. The applicant confirmed that she and her husband also own land in [City 1], in addition to their apartment in Kathmandu.

16. The Tribunal asked the applicant why she came to Australia.  She said she found it difficult to live in Nepal.  When asked why she said she belongs to the Pahade community and when she was working in [City 1] she was threatened and harassed by members of the Madhesi Forum and other groups.  The Tribunal asked her about her work.  She said she worked for [a particular government sector] .  When asked about her education level, she confirmed that she only completed education up to the SSLC level.  She said she completed her SSLC examinations about [number] years after her marriage.  She then clarified that she sat the exams twice, once in [District 1], which she failed and then [number] years later in [City 1].  The Tribunal put to her that that suggests she was studying for her exams when she was living in [City 1] and working [in the government sector].  She confirmed that she was.  She studied by private tuition while she was working.  When the Tribunal put to her its concern about how she obtained her job as a [occupation] without completing her SSLC she said she studied a basic [course] in Kathmandu in 2008 and after this she obtained the job in the[government sector] .  The Tribunal noted that she did not mention the [course] in her application or in her previous evidence to the delegate or previous Tribunal, and this may lead the Tribunal to have some doubts she is telling the truth.  In response she said she was not asked about how she got her job before so she did not mention it. 

17. The Tribunal asked the applicant what she did in her position.  She described her role as [describition of duties].  She said there were [number] people in her department, and they did the same role as she.  When asked the name of the government department her office came under, she was unable to name it.  She responded that she was in the [name] Office and she was situated in a [room].  When pressed further for the name of the Department, she referred to the [name].  When reminded that she referred to the Department of [name] in her application, she agreed that this is what it is called and it is also known as the [name].  The Tribunal put to her that her evidence about her job given at this and the previous hearing, may lead it to have doubts she worked in this job at all.  It noted that she had [children] at this time, and asked her where they lived when she was working in [City 1].  She confirmed that they remained in Kathmandu and her husband looked after them.  When asked why she went to [City 1] when her husband and children were living in Kathmandu, she said she went for the job, to earn money for the family. 

18. The Tribunal asked the applicant about the problems she had when she was working in [City 1].  She said people from the Madhesi groups, including the Madhesi Morcha would follow her on their motorcycles when she came and went from work and threaten and harass her.  They wanted her to quit the job and leave the place.  They followed her and threatened her constantly.  They also threatened her by phone.  It became very difficult for her to continue at work. Eventually she agreed to pay them money to save her job.  She agreed to give them some gold and [amount] lakhs of rupees. The Tribunal asked where she obtained this money from.  She said she sold her jewellery and they sold some land in [City 1].  The Tribunal noted that she has not previously mentioned giving gold. 

19. Even after this the threats continued.  It became too hard for her to continue and so she asked her office for a transfer to Kathmandu, which they gave her and she moved to Kathmandu.  This was around the Dasan holiday period. The Tribunal noted that as this holiday fell in October, and she departed for Australia in July 2013, would it be likely that this was in October 2012.  She agreed.  She said she continued to work for about 6 months in Kathmandu but the Madhesi Morcha people discovered that she was there and continued to harass her. After three months she moved out of her house to another place by herself.  The Tribunal noted that she did not mention moving out by herself in Kathmandu previously, in her statement or in her evidence to the delegate or Tribunal. In response she said she was not asked this specifically so she may not have mentioned it.

20. The Tribunal asked the applicant about her involvement with the Nepali Congress Party.  It indicated that it has considered her evidence provided to the previous Tribunal about this.  It asked her why she believed that she was at risk of harm on this basis.  At this point the applicant said she is not exactly a member of the Nepali Congress Party.  She likes this Party and participated in their victory celebrations and attended their rallies.  When asked what the last rally was she attended, she said the last time was when Girija Prasad Koirala was Prime Minister. She attended the victory celebration when he won the election. The leader of the party now is Sher Bahadur Deuba. Her family has always been associated with the Nepal Congress Party and that is why she is involved.  Her [uncle] is also a member. When the Tribunal noted that previously she referred to her grandfather rather than her uncle being involved with the party, she explained that after her grandfather expired other relatives and uncles also joined the party. The Tribunal put to the applicant, given her evidence about her involvement  in the Nepal Congress Party in this and the previous hearing, it may not accept she faces a real risk of harm on this basis. 

21. The applicant said that if she goes back to Nepal now they will think she has earned a lot of money and she will be at risk from the Madhesi people because of this.  She stated that especially now, because of the new constitution which is contested by the Madhesis, the situation in Nepal is very unstable and chaotic and she will be at risk of harm.  The Madhesi groups are against the Pahades. She said she has no job waiting for her in Nepal.  The Tribunal asked the applicant why she would be at risk of harm now if she has no government job.  She said she is at risk of harm because of the unstable and chaotic situation in the country and because of her Pahade ethnicity and the perception that she will take a government job.

22. The Tribunal explained to the applicant that it will need to assess what her home region in Nepal is and whether she faces a real risk of harm in this place, and if so whether it is reasonable for her to relocate to another part of the country where there is no such appreciable risk of harm.  On the evidence before it, it may find that her home region is Kathmandu. If so, it will consider whether she faces a real chance of harm there.  The applicant said she cannot return to Kathmandu because they will kill her there. 

23. The Tribunal put to the applicant, if it concludes her home region is not Kathmandu, it would have to consider if it is reasonable for her to relocate there and asked her if there is any reason she wishes to put forward why it is not reasonable to relocate to Kathmandu.  In response the applicant repeated that she cannot go to Kathmandu or anywhere in Nepal as she will be killed. When asked if she would face any other difficulties in Kathmandu, she said she would have difficulty finding work, her husband does not work and she has to support her family.  The main problem for her is the risk to her life.   

24. The applicant told the Tribunal she cannot go India because the Indian Government does not accept their constitution and there are a lot of casualties in India.  She fears harm in India on the basis of her Pahade ethnicity.

25. The applicant’s [relative] submitted that there appeared to be some confusion about the dates because of the conversion from Nepal to western calendar.  He submitted that the applicant married in 1999.  She moved to Kathmandu after that, but before moving she sat she SSLC examinations and failed it.  Then she did it again in around 2008 and passed it. After this she obtained the job in [City 1] and lived and worked there from 2009 until she transferred to Kathmandu in 2013.  He agreed to provide evidence of the applicant’s SSLC records to support her evidence following the hearing.  The applicant’s [relative] acknowledged that, other than her fear of harm, there is no problem for her to return to Kathmandu.  

    Independent Information

    Madhesi Groups

26. In August 2012 NepalNews.com points out that:

    “Janatantrik Terai Mukti Morcha (JTMM), a Terai-based armed group led by Bhagat
    Singh has agreed to handover its weapons to the local authority following the talks
    

    [1] NepalNews.com (4 August 2012) Nepal: Terai-based armed group hands over weapons to govt)

    with government's representatives in Pakali of Sunsari on Saturday.”[1]

1. An undated report from the South Asia Terrorism Portal describing notes:

   “The Janatantrik Terai Mukti Morcha (JTMM) was formed in July 2004 by Jaya
   Krishna Goit after splitting from the Communist Party of Nepal-Maoist (CPN-Maoist).
   Goit, formerly a leader of the Unified Marxist Leninist (UML), was also co-ordinator of
   the Madhesi National Liberation Front of the CPN-Maoist. Gradually, as he came to
   believe that the Maoists were not serious about the development of the Terai region,
   he floated a separate outfit charging the Maoist leadership of betraying the Madhesi
   people…JTMMM-G demands an independent state for the Madhesis in the Terai
   region. He believes that Terai was never a part of Nepal; rather it was annexed by
   the Nepali pahade (hill people) rulers and then parts of it were ceded to them by the
   British through treaties. Thus, he says that, his armed struggle is meant to correct the
   historical wrong committed by the Nepali rulers…JTMM-G is led by its founder Jaya
   Krishna Goit. The cadre strength of the JTMM-G remains difficult to estimate, though
   unconfirmed reports suggest a support base of a thousand, including hard-core
   cadres and sympathisers. The Goit faction functions with a central committee, East
   and West Terai Regional Bureaus, village, ward and cell committees and a parallel
   military organisation…The JTMM-G is mainly active in the Terai region bordering
   India, particularly, in the districts of Siraha, Dhanusha, Morang, Sarlahi, Bara,
   Saptari, Mohattari, Lalitpur and Rautahat.”[2]

   [2] (South Asia Terrorism Portal (Undated) Janatantrik Terai Mukti Morcha – Jaya Krishna Goit (JTMM-G))

   Violence between Madhesis and Pahadis in the Terai region in 2007

2. A number of sources have documented significant violence between Madhesis and Pahadis during the period of 2007 and 2008, including a report by the International Crisis Group (2007) Nepal’s Troubled Tarai Region and the UN High Commissioner for Human Rights (2008) Report of the United Nations High Commissioner for Human Rights on the human rights situation and the activities of her Office, including technical cooperation, in Nepal and United Nations Office of the High Commissioner for Human Rights 2007, Human Rights in Nepal: One year after the Comprehensive Peace Agreement,[3]  the latter referring specifically to armed groups inciting communal violence and racial hatred between Madhesi and Pahadi communities, and incidents where main factions of JTMM orders pahadis to leave the Terai, especially government employees.   

   Current situation

   [3] For example:  International Crisis Group 2007, Nepal’s Troubled Tarai Region, 9 July. (\\ntssyd\REFER\Research\INTERNET\MELBNET\Reports\ICG\2007\npl070709.pdf) Report of the United Nations High Commissioner for Human Rights on the human rights situation and the activities of her Office, including technical cooperation, in Nepal. A/HRC/7/68, UNHCR Refworld, 18 February 2008 ; United Nations Office of the High Commissioner for Human Rights 2007, Human Rights in Nepal: One year after the Comprehensive Peace Agreement, 12 December >

   The DFAT Country Report on Nepal provides the following information about the security situation in Nepal

   2.34 The overall security situation throughout Nepal has dramatically improved since the end of the conflict. However, poverty, unemployment, weak rule of law and a culture of impunity are causes of insecurity in Nepal. Political party interference in security processes and criminal investigations further undermining effective security and justice. Political protests and demonstrations occur regularly and can turn violent without warning. Political parties have been known to enforce strikes (bandhs) which can close down transport and business operations for extended periods, although these have occurred less frequently in recent years. There are credible allegations that groups associated with political parties have committed acts of violence, extortion, and intimidation. Violent protests and strikes over the constitution occurred in the far west, mid-west and east in August 2015.

   2.35 In September 2015 protests began in the Terai and continued until early 2016. Led primarily by the Madhesi and Tharu groups, (see ‘Ethnicity’ below), these protests arose in part because of concerns about the demarcation of provincial boundaries under the 2015 Constitution and had a significant effect on Nepal’s industry and economy as they have blockaded the East-West highway at Birgunj, the largest crossing on the border with India. Some figures suggest that only 40-50 per cent of goods and fuel were crossing into Nepal, which further added to the already difficult humanitarian situation faced by Nepal as it recovered from the 2015 earthquake. Nepal’s security forces (mainly police) were heavily involved in responding to the Terai protests and police reportedly opened fire on civilians in some instances. Over 40 deaths, both civilians and police, have been reported. At the date of publication, the protests have stopped and all borders are open following an amendment to the Constitution in January 2016 to respond to the aforementioned concerns.[4]

   [4] DFAT Country Report Nepal 21 April 2016, p8

3. The DFAT report indicates that the Madhesis, being caste Hindus of Indian origin that live in the Terai reion, consider other groups, including Pahadis to be foreigners in their region. The Madhesi community comprise les that 50 % of the Terai population, and 20% of the total Nepali population, and are underrepresented in politics, public service jobs and the military. DFAT assesses that Madhesis in the Terai experience moderate official discrimination because of on-going difficulties in obtaining citizenship, which impacts on their ability to access government services. The 2015 Constitution was amended in early 2016 partly in response to Madhesi demands around political representation. Violence in the region remains sporadic, as is evidenced by the protests of late 2015 and early 2016, when upwards of 40 people are reported to have been killed.[5]

   [5] DFAT Country Information Report 21 April 2016, p11

4. The South Asia Terrorist Port Nepal Assessment 2016 provides the following information about the current cycle of political violence:

   Nepal, which had seen 4,896 fatalities, including 3,992 Maoists, 666 Security Force (SF) personnel and 238 civilians, in a single year at the peak of insurgency in 2002, sustained the environment of peace that had been established in 2013, through 2014 and 2015, with not a single insurgency-related fatality on record. However, though the insurgency has subsided, Nepal continued to witness significant political violence through 2015.

   The current cycle of political violence began on July 1, 2015, when agitating cadres of the United Democratic Madhesi Front (UDMF) comprising of the Upendra Yadav-led Federal Socialist Forum-Nepal (FSF-N), the Mahantha Thakur-led Tarai Madhes Democratic Party (TMDP), the Rajendra Mahato-led Sadbhawana Party (SP) and the Mahendra Raya Yadav-led Tarai Madhes Sadbhawana Party (TMSP), burnt copies of the preliminary draft of the Constitution in the capital, Kathmandu, as it failed to incorporate their demands. During the first round of violence, between July 1 to September 19, 2015, according to partial data compiled by the South Asia Terrorism Portal (SATP), at least 44 persons, including 25 civilians and 19 SF personnel, were killed and another 229, including 166 civilians and 63 SF personnel, were injured in violent protests across the Tarai region. In Surhket District, adjoining the Tarai region, another two civilians were killed and 50 were injured.

   Violence continued subsequent to the adoption of the New Constitution on September 20, 2015, with nine civilians killed and another 414 persons, including 321 civilians and 93 SF personnel, injured in violent protests across the Tarai region, according to SATP data. In adjoining Districts, one civilian was killed in Udayapur and another was injured in Dhading District (all data till December 31, 2015).

   Warning that the current Tarai turmoil would create a ‘parallel’ economy in the country, Federation of Nepalese Chambers of Commerce and Industry (FNCCI) President Pashupati Murarka during a Press meet on December 18, 2015, observed,

   Tarai protest led by some political parties for the last few months has pushed the economic, social and education, among other sectors, to a serious mode. Nearly 2,000 industries are closed while materials worth billions of rupees have been stranded on the other side of the border. The demurrage charge on these materials is beyond our affordability.

   …
   
   Worryingly, signs of continued violence are very much in evidence. On January 2, 2016, SP Chairman Rajendra Mahato emphasized, “Fifty-five people were martyred during Madhes agitation and hundreds of people were injured. Hundreds of people are still in hospitals. As the Government stepped up its repression, we have also stepped up our resolve to fight for our rights.” Earlier, the Tharuhat Struggle Committee (TSC), in a Press Release on December 24, 2015, had threatened that if its demands were not met by January 14, 2016, it would promulgate its own Constitution on January 15, 2016, guaranteeing an autonomous Tharuhat province.

   Separately, on December 11, 2015, the Federal Inclusive Madhesi Alliance (FIMA), which brings together the Sharat Singh Bhandari-led National Madhes Socialist Party (NMSP), the Rajkishor Yadav-led Madhesi Janadhikar Forum-Republican (MJF-R), the Anil Kumar Jha-led Nepal Sadbhawana Party (NSP) and the Jay Prakash Prasad Gupta-led Tarai Madhes National Campaign (TMNC), submitted a nine-point demand to the Government. Warning that they would intensify their agitation, FIMA leaders argued, on December 20, 2015, that the ruling parties were not serious about seeking a negotiated settlement of issues raised by Madhes-based parties.
   Disturbingly, the Netra Bikram Chand-led Communist Party of Nepal-Maoists (CPN-Maoists), at a proclamation assembly organized in Butwal city of Rupandehi District on January 3, 2016, declared the Rupandehi, Nawalparasi and Kapilvastu Districts as the Abadh autonomous State. Warning that if they were suppressed they would retaliate against the Government, Politburo Member Santosh Budhamagar asserted, “Our party was forced to revive the old structures as the Government was unable to solve the people’s basic problems after India’s blockade of Nepal’s border points.”
   

   [6] on June 30, 2015, Nepal’s second Constituent Assembly (CA) constituted on January 21, 2014, accepted the preliminary draft of the Constitution. Though it faced strong opposition, the CA went ahead, and in a historical step forward, endorsed “Nepal’s Constitution” with an overwhelming two-thirds majority on September 16, 2015. The new Constitution with 308 articles, 35 parts and nine schedules, came into effect after President Ram Baran Yadav announced its commencement at 17:00 hrs on September 20, 2015, during the last meeting of the CA. The first CA, constituted on May 28, 2008, with a mandate to deliver the Constitution by May 28, 2010, was dissolved on May 27, 2012, after four extensions. While the adoption of the new Constitution was welcomed by most national and international groups and leaders, a large segment of the population, particularly the Madhesis and Tharus residing in the Tarai region, contested the new Constitution.[6]

5. A recent report of the ICG refers to the risk of escalating violence in the Tarai:

   The depth of social discontent, lack of fruitful negotiations and disillusion with Madhesi parties is creating room for radical positions. Mainstream national parties are also in the Tarai, and some are inclined to launch counter protests, which likewise lead to clashes. The security forces are seen as discriminating against Madhesis and using excessive force. Employing them repeatedly to quell local protests fuels anger and radicalisation, could encourage armed Madhesi groups, of which the region has a history, and might also allow a fringe Madhesi secessionist movement to gain traction. While unlikely to be successful or widespread, it would increase the volatility of a complex region. [7]

   [7] International Crisis Group (ICG), Nepal's Divisive New Constitution: An Existential Crisis, 4 April 2016, pii

   …

   
   
   

   The use of force to crush protests would produce more fatalities, empower radicals
   in Madhesi society, create space for armed resistance, of which the region has a
   recent history, and increase support for a fringe secessionist movement.123 NC and
   UML counter-protests, particularly in the contested eastern Tarai districts, might
   fuel Madhesi-Pahade tensions. There have been reports of tensions in areas such as
   Biratnagar, a major urban centre in the eastern Tarai’s contested Morang district.124
   The closeness of the NC and UML to the state, that their events or protests are dominated
   by hill-origin members and the use of security forces against protestors fuel
   

   [8] Ibid, p31

   Madhesi analysis that there is little difference between what activists call the “Pahade state” and the government parties. [8] 

   FINDINGS AND REASONS

6. On the basis of the applicant’s passport, sighted at the hearing, the Tribunal accepts she is a citizen of Nepal and assesses her claims against Nepal as her country of nationality and as the receiving country.

7. The applicant has advanced the following claims in her application for protection. She claims she is of Pahade ethnicity. She claims she worked in a government job in [City 1] and because of her employment she was threatened and harassed by JTMM, and other Madhesi militants, groups and people. She claims she paid NPR [amount] lakhs but despite this they continued to harass her and she was forced to leave her job in [City 1] and transferred to Kathmandu. She claims even in Kathmandu they located her and continued to threaten and harass her and eventually she was forced to resign and she fled the country because of this. The applicant also made claims that she was a member of the Nepali Congress Party and feared harm from Mahdesi groups because of her political opinion. Before the present Tribunal the applicant has made new claims that she fears harm because she will be perceived to have earned money while in Australia and also that she will be perceived to return to a government job. She fears harm because of the security situation since the promulgation of the new Constitution which had resulted in violent reactions by Mahdesi groups and movements. She cannot return to Nepal because she has no job to return to and she has to support her family.

8. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons.  The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (see Guo, referred to above; Minister for Immigration and Multicultural Affairsv Rajalingam (1993) FCR 220; Rajasundaram v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 682). However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348)

9. The Tribunal has considered all the evidence before it, including the applicant’s written claims in her application and oral evidence to the delegate, the supporting documents she provided to the Department, her oral evidence to the (differently constituted) Tribunal, and her written submissions and oral evidence to the present Tribunal, as well as independent information referred to by the delegate, the previous Tribunal and above.

10. On the basis of this evidence, the Tribunal makes the following findings relating to the applicant’s background and circumstances. It accepts that she was born in [District 1], Nepal and is of Pahade ethnicity.  It accepts that she married in 1999 and has a husband and [children] born in [years] who live in Kathmandu. It accepts that she lived in [City 1], [District 1] District until her marriage and moved to Kathmandu after she married.

11. However, for reasons provided further below, the Tribunal finds the applicant has not given credible evidence about other aspects of her background and experiences in Nepal relating to the reasons she left Nepal in 2013.  Specifically, it does not accept that she worked as a government employee in [City 1] or Kathmandu after her marriage.  It does not accept that she was threatened or harassed to resign from her job or that she was subject to intimidation, threats to kidnap, cruel or inhuman treatment, punishment, verbal abuse and threats to kill her family because of this or any reason.  It does not accept that she paid gold or NPR [amount] lakhs or any amount of money to Madhesi groups or anyone in [City 1] or in Kathmandu.  It does not accept that she is or was a member of the Nepal Congress Party or is affiliated with that party in any way that causes her to fear harm from Madhesi groups or anyone else. There are numerous inconsistencies, contradictions and omissions in the applicant’s evidence given to the Department and the previous and present Tribunal that lead the present Tribunal to find her evidence about these matters lacks credibility and it rejects these claims. 

    Claims relating to government employment

12. The Tribunal does not accept that the applicant was employed in a government job in [City 1] or Kathmandu prior to coming to Australia for the following reasons.  Firstly, her evidence about when and where she worked has been inconsistent and unreliable.  She told the previous Tribunal she obtained the job with the Department of [name] in [City 1] in 2011. However, in her written application she indicated that she worked in this job from February 2009.  Before the present Tribunal she initially did not mention living and working in [City 1] following her marriage at all.  It was only when the Tribunal pressed her about whether she lived anywhere else apart from Kathmandu before coming to Australia that she mentioned she worked there from 2009 to 2013.  Secondly, her evidence about the place that she worked and her description of her role has been vague, general and lacking in convincing detail.  She couldn’t specifically name the department she worked at in her oral evidence to the present Tribunal, referring to it only as the [name] Office.  In her evidence to the previous Tribunal she said initially [did certain work], and then changed her evidence to say it was [another type of work]. The Tribunal found her description of the daily work and routine of a job she claims to have been doing for over 4 years was vague and lacking in convincing detail.  It notes that at the previous hearing she was unable to name significant people in the department. Even allowing consideration for the passage of time, acknowledging the potential for minor inconsistencies and memory lapses that may arise because she has given her evidence over several years to different people and with different interpreters, and allowing for the effects of nervousness and anxiety faced by asylum claimants,  the Tribunal finds the inconsistencies about when, and if, she worked in [City 1], and her inability to convincingly describe her work and the department to the Tribunal are significant and leads the Tribunal to have serious concerns about the credibility of her claims.  Furthermore the Tribunal has concerns that the applicant’s education level is not consistent with her claimed employment. When asked about this at hearing, she confirmed that she only completed education to SSLC level and that she that she did not finish her SSLC until some [number] years after marriage in [City 1].  This would have meant she was studying while she was working at the [name] Office. The Tribunal does not accept as credible that she would have secured a government position without completing her SSLC or that she worked and studied at the same time. Her claims in relation to this are not supported by the documentary evidence she provided following the hearing which indicated that she completed her School Leaving Certificate Examinations in 2063 BS (2007 AD) and again 2068 BS (2012 AD).  No explanation was provided to explain why the applicant would have sat her SSLC examination again in 2012 if she had passed it in 2007, and no evidence of having failed it prior to 1999 was provided.  The Tribunal finds that the documents she submitted are inconsistent with her oral claims regarding her past circumstances and this adds to the Tribunal’s concerns about the credibility of her evidence of past circumstances. The Tribunal also does not accept the submission made by the applicant’s [relative] that the confusion arises from conversion of dates to the western calendar.  The Tribunal also finds it difficult to believe that she would have worked and studied in [City 1] while her husband and [young] children were living in Kathmandu. All of these reasons considered cumulatively leads the Tribunal to find she has not given credible evidence about this matter and on this basis it rejects the applicant’s claim that she worked in a government job in [City 1] from 2009 or 2011 or at all.

    Claims relating to threats by Madhesi groups and payment of NPR [amount] lakhs

1. As a consequence of the above finding, the Tribunal also rejects that the applicant was threatened by JTMM, or any other Madhesi groups in [City 1] or Kathmandu or that she paid any amount of gold or money to these groups at any time.  In addition to the inconsistencies and other issues with her evidence regarding her employment discussed above, the applicant has given inconsistent evidence about threats made against her and her responses to those threats.  For example, she told the present Tribunal that she agreed to give the Madhesi people who were following, harassing and threatening her in [City 1] gold and NPR [amount] lakhs.  However, she had never mentioned giving gold previously in her written application or in her evidence to the previous Tribunal. She told the present Tribunal even after this the threats continued and because of this she asked for a transfer to Kathmandu, around the time of the Dasan period.  When the Tribunal put to her that Dasan fell in October, she agreed that it would have been around October 2012 that she went to Kathmandu. This is inconsistent with her previous evidence in her application where she indicated she was in [City 1] until April 2013 before returning to Kathmandu.   In her written statement provided with her application she indicated that she paid NPR [amount] lakhs after she came to Kathmandu.  This is inconsistent with her oral evidence to the present and the previous Tribunal when she maintained that she paid the money while she was still in [City 1]. 

2. The Tribunal does not consider the above inconsistencies relate to minor or inconsequential details.  Rather, it finds the applicant has been unable to provide a coherent and consistent account of by whom, when and how she has been threatened. Her inability to do so adds to the Tribunal’s concerns about her credibility and contributes to its reasons for not accepting that the applicant has given truthful evidence about threats of kidnapping or extortion or harassment against her by Madhesi groups, and payment by her to them of [amount] lakhs and/or gold. 

   Claims relating to Nepal Congress Party

3. The applicant claimed in her written application to be a member of the Nepal Congress Party. She also included with her application a letter dated [August] 2013 from [an official] stating that she is an active member of the Party since 2064. She confirmed that she was a member of the party at the hearing before the previous Tribunal.  However, at the hearing before the present Tribunal she said she was not exactly a member of the Nepal Congress Party, but she likes this Party and participated in their victory celebrations and rallies, and her family has been associated with it.  The Tribunal considers the applicant’s retraction of her claimed membership of the Nepal Congress Party, together with other concerns about her evidence referred to above, reflects poorly on her credibility.  She claims her family has been associated with the party and she is involved in this way, and mentioned an uncle who is a member.  At the previous hearing she referred to her grandfather as the family member involved in the party.  When this was put to her at the hearing, she said her uncle and other relatives joined the Party after her grandfather passed away. 

4. Having regard to the applicant’s responses and her changing evidence relating to this claim, the Tribunal finds that she is not a member of the Nepal Congress Party and it does not accept, on the evidence before it, that she has any profile or role in the Party that has in the past, or would in future, place her at risk of harm from Madhesi groups or anyone else. 

5. Having rejected that the applicant was employed in a government job, that she paid any extortion money, and that she was a member of the Nepali Congress Party,  the Tribunal rejects that the applicant was threatened or harassed to resign from her job or that she was subject to any other intimidation, threats to kidnap, cruel or inhuman treatment, punishment, verbal abuse and threats to kill her family in [City 1] or Kathmandu because of her employment, ethnicity, political opinion or for any other reason. 

6. In making the above findings, the Tribunal has considered the documentary evidence submitted by the applicant in support of the application including the letters to and from the Department [name] relating to her resignation, the letter purporting to be a complaint by the applicant to the Chief District Officer relating to threats received by members of the Madhesi Janadhikar Forum and JTMM in Kathmandu, the response from the Ministry of Home Affairs; and the letter from Nepali Congress. The Tribunal has considered independent information[9] which indicates that there is widespread document fraud in Nepal, which was discussed with the applicant and put to her for comment at the previous Tribunal hearing.  Information in the purported letter of complaint and the letter from Nepali Congress Party is inconsistent and contradictory to oral evidence the applicant has provided to the Tribunal. For example, in the letter of complaint she refers to having paid [amount] million rupees after coming to Kathmandu whereas her oral evidence to the Tribunal has been that she paid this money before she transferred to Kathmandu.  The letter from the Nepal Congress party declares that she is an active member of the party since 2064, but she told the Tribunal is not a member but only a supporter.  In light of the country information about the prevalence and ease of acquiring false or fake documents, together with the inconsistencies and contradictions between the documentary and oral evidence, and the overall unfavourable assessment of the applicant’s credibility the Tribunal places no weight on the documentary evidence submitted in support of her application.  

   Finding on the applicant’s home region

   [9] Immigration and Refugee Board of Canada 2009, NPL103010.E - Nepal: Prevalence of forged, fake or falsely acquired documents, including identity documents, professional certifications, membership cards and employment records, 26 January

7. The Tribunal has above (paragraph 39) found that the applicant lived in [City 1], [District 1] District, her native place where she was born and her birth family live, until her marriage and that she moved to Kathmandu, where her husband lived and worked, after she married.  It has rejected, above, her claim that she returned to [City 1] to work between 2009 and 2013.  She told the present Tribunal that her husband has been living at the same address for the past 9-10 years and that it is the same address she lived at before she came to Australia and that her husband lived in Kathmandu prior to their marriage.  Her children are attending boarding school in Kathmandu and come home one weekend a month to stay with her husband in their family home.

8. On the basis of the findings that she lived in Kathmandu since her marriage in 1999 and her husband and children have remained living in Kathmandu in the same family home since she has been in Australia, the Tribunal finds that the applicant’s home region in the present case is Kathmandu and it finds that she would return to Kathmandu, where her family home, her husband and her children are, upon returning to Nepal.

9. The Tribunal has also considered, on the evidence before it, whether the applicant would go to [City 1] in [District 1] District upon return to Nepal.  It accepts that she her mother and [sibling] live there, and also that she and her husband own land there.  It also accepts, on the evidence provided of her School Leaving Certificate Examinations in 2007 and 2012 obtained from a school in [location], [District 1], that she may have returned to her native district for periods while she had been living in Kathmandu.  Therefore, while the Tribunal accepts that the applicant continues to have close connections and family reasons to visit  [District 1], it does not accept on the evidence before it, that she would return there rather Kathmandu to live, upon return to Nepal in the reasonably foreseeable future.

   Fear of future harm

10. The applicant fears harm in future in Nepal because of her Pahade ethnicity and past government employment.  Before the present Tribunal she also claimed to fear harm of being kidnapped and being forced to pay ransom, on the basis that she will be perceived as having earned a lot of money in Australia and she will be perceived as going back to her government job and her home town of [City 1] to live.     

11. In relation to the applicant’s fear harm of being kidnapped and being forced to pay ransom on the basis that she will be perceived as having earned a lot of money in Australia, she has not referred to any adverse impact on her husband or children in Kathmandu for this reason since she has been in Australia. The Tribunal has, above, rejected her claim regarding past employment in a government job in [City 1] and on this basis it does not accept she will be perceived to be going back to a government job there or anywhere. It is also not aware of any independent information to support her claim of harm as a returnee on the basis of a perception of having earned money, or for any other reason, and it notes that DFAT assesses that returnees are unlikely to suffer any social stigma upon their return to Nepal or adverse treatment by their Government.[10]  For all of these reasons, the Tribunal is not satisfied that the applicant will face a real chance of persecution for these reasons upon return to her home region, Kathmandu. 

    [10] DFAT Country Report on Nepal 21 April 2016 paragraph 5.23

12. The Tribunal accepts that the applicant is of Pahade ethnicity.  It accepts that she was born in, and grew up in [District 1] District, where she lived until her marriage in 1999 when she moved to Kathmandu to live with her husband. The Tribunal has found on the evidence before it, that the applicant’s home region in Nepal is Kathmandu and this is where she would return to live to if she returned to Nepal in the reasonably foreseeable future.  It has rejected her claims that she was previously a government employee in [City 1] or Kathmandu and that she paid gold and/or money to Madhesi groups as a result of threats made against her due to her employment, and it has rejected her claims that she faced threats or harm or pressure of any kind from Janatantrik Terai Mukti Morcha (JTMM) or any other Madhesi groups on the basis of her Pahade ethnicity or government employment at the time she left Nepal in 2013.  The Tribunal has also found that she is not a member, nor was actively involved, in the Nepali Congress party and that she has no profile or role in the Party that has in the past, or would in future, place her at risk of harm from Madhesi groups or anyone else. 

13. The Tribunal has considered independent information about the security situation in Nepal including recent and current political and security developments (see paragraphs 32-34 above).  It accepts that there has been a history of violence and conflict between Madhesis and Pahades in the Tarai region (see paragraph 30 above, and also other sources[11]).  

    [11] United Nations Nepal Information Platform 2011, Nepal- Reports of Security Incidents: 1-31 May 2011, 17 June United Nations Nepal Information Platform 2011, Nepal- Reports of Security Incidents: 1 January – 31 December 2010, 13 January -

14. It accepts that, more recently, the process leading up to and following the passage of the new constitution in September 2015 has been marked by a deadly cycle of violence in the Tarai region with significant numbers of civilian casualties as a result of violent protests by Madhesi and Tharu groups. Recent reports by SATP and ICG refer to signs that the violence is likely to continue, and the Tribunal notes in particular the reference in the ICG report to tensions in areas such as Biratnagar:

    The use of force to crush protests would produce more fatalities, empower radicals
    in Madhesi society, create space for armed resistance, of which the region has a
    recent history, and increase support for a fringe secessionist movement.  NC and
    UML counter-protests, particularly in the contested eastern Tarai districts, might
    fuel Madhesi-Pahade tensions. There have been reports of tensions in areas such as
    Biratnagar, a major urban centre in the eastern Tarai’s contested Morang district.
    The closeness of the NC and UML to the state, that their events or protests are dominated
    by hill-origin members and the use of security forces against protestors fuel
    

    [12] International Crisis Group (ICG), Nepal's Divisive New Constitution: An Existential Crisis, 4 April 2016, p31l; see also UN Nepal Information Platform, Security and Operational Space Incidents (January-July 2016) analysis that there is little difference between what activists call the “Pahade state” and the government parties. [12]    

15. On the basis of the above information, given the current volatile and unpredictable climate in the Tarai [region]the Tribunal accepts that there may be a real chance, in the sense that of one that is not remote or far fetched that the applicant would suffer serious harm on the basis of her Pahade ethnicity and as a supporter (even if not a member or having any significant profile) of the Nepali Congress Party were she to return to [City 1]. However, it is not satisfied, on the basis of the independent information and its  findings above regarding the applicant’s past experiences, background and profile, that she would face a real chance of persecution on the basis of her ethnicity or political opinion, or for any other reason, in her home region of Kathmandu. 

16. Therefore, in light of the authority in MIBP v SZSCA,[13] the Tribunal has considered whether, having found that the applicant would face a real chance of serious harm in [City 1], it is reasonable for the applicant to live and remain in Kathmandu, where she would not face a real chance of persecution.

    [13] (2014) 254 CLR 317 per French CJ, Hayne, Kiefel and Keane JJ at [20]-[30]; see also Gageler J at [39]-[46].

17. It has considered her evidence provided at the hearing, that she cannot go back to Kathmandu because of her fear of harm there, and she has no job to return to and needs to support her family. Her [relative], as her representative submitted to the Tribunal that other than her fear of harm there is no other reason she cannot return to Kathmandu.  Having considered her response, the independent information referred to above, which indicates that the current cycle of political violence and protests surrounding the issue of the new constitution is confined to the Tarai region, and its findings that she has lived in Kathmandu since marriage, and her husband and children have continued to live there without problems since she has been in Australia, the Tribunal finds it is reasonable for the applicant to live and remain in Kathmandu where she would not face a real chance of persecution. While the Tribunal accepts that she does not have a job to return to in Kathmandu, and it acknowledges that her family may be relying on her for financial support, given its rejection of her claim regarding past employment in [City 1], her circumstances of the period she has been settled in Kathmandu, and the current political and security tensions in [City 1] and the Tarai region, the Tribunal finds it is reasonable to expect her to remain in Kathmandu despite her lack of employment to return to. 

18. The Tribunal has also considered whether, given her family connections and land in [City 1], it is reasonable to expect her not to return there to visit in the reasonably foreseeable future.  The Tribunal has taken into consideration the applicant’s particular circumstances including the period she has been settled in Kathmandu with her husband since 1999;  her husband and children have remained living there throughout the period she has been in Australia; the absence of evidence that she has any particular reason to visit [City 1] in the reasonably foreseeable future or that her mother and [sibling] would be unable to visit her in Kathmandu; and the fact that she has been in Australia since 2013 and would not be visiting her family or land were she to remain here.  Having regard to all of these considerations, and in light of the current cycle of political violence and reports of tensions in [the] Tarai region more generally, the Tribunal finds it is reasonable for the applicant to be expected to not go to [City 1], even to visit, despite her connections to that place.

19. Having considered the applicant’s claims singularly and cumulatively, the Tribunal is not satisfied that the applicant would face a real chance of serious harm on the basis of her Pahade ethnicity if she was to return to Kathmandu in the reasonably foreseeable future and it is satisfied that it is reasonable for her to live and remain there upon return to Nepal. 

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

    Complementary Protection

21. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has considered whether 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 as defined in s36(2A) of the Act.

22. For the reasons referred to above relating to the refugee criteria, and having regard to its findings relating to the applicant’s circumstances and past experiences in Nepal and her background and political profile, the Tribunal is not satisfied that there is a real risk she will be arbitrarily deprived of her life; or the death penalty will be carried out on her; or that she will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment in Kathmandu. For the same reasons discussed above it finds that it is reasonable for her to live and remain in Kathmandu where she would not face a real risk of significant harm.  In reaching this conclusion, the Tribunal has considered the applicant’s claims that she has no employment to return to and her family is reliant upon her for financial support. However it is not satisfied on the evidence before it that financial hardship and/or the applicant’s inability to attain employment or otherwise support her family will cause pain or suffering, or severe pain and suffering such that it comes within the meaning of cruel or inhuman treatment or punishment, or that it will cause extreme humiliation such that it comes within the meaning of degrading treatment or punishment; it also is not satisfied that the requisite requirement of intent is met.  Therefore, it finds that financial hardship or unemployment as feared by the applicant is not ‘significant harm’ for the purposes of this criteria and while sympathetic to her concerns for her and her family’s future prospects, it is not satisfied there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm for this reason, if she returns to Nepal.

23. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

    DECISION

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

   Meena Sripathy
   Member

   
   

   RELEVANT LAW

2. 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

3. 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).

4. 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.

5. 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.

6. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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

13. 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’).

14. ‘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.

15. 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.

    Section 499 Ministerial Direction

16. 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.