1601219 (Refugee)

[2018] AATA 3705

1601219 (Refugee) [2018] AATA 3705 (16 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601219

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Roslyn Smidt

DATE:16 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 August 2018 at 3:30pm

CATCHWORDS

Refugee – Protection visa – Nepal – Particular social group – Reported criminal or terrorist activity – Son of a policeman – Threatened by armed group – Janatantrik Terai Mukti Morcha – Credibility issues – Claims vague and implausible – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994 (Cth), 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 on 25 January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who is a citizen of Nepal, applied for the visa on 1 July 2015. The delegate refused to grant the visa on the basis that he had effective protection in a third country [Country 1] and was therefore Australia did not have protection obligations towards him.

   CRITERIA FOR A PROTECTION VISA

3. 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, he or she 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.

4. 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 because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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

9. The applicant is [age] year old man from Nepal. He lived in [location], in the Sunsari District which is in the Terai region until 2007 when he moved to Kathmandu. He arrived in Australia on a [temporary] visa on 15 March 2008. This visa was cancelled in March 2011. However, he remained in Australia and on 1 July 2015 applied for protection.

   CLAIMS AND EVIDENCE

10. In his written submissions to the Department the applicant claimed that he was at risk of being killed in Nepal because he had been involved in passing information about a criminal gang to his father, who is a policeman. His father sent him to Australia [to] protect him. The criminals continued to search for him after he left Nepal. He himself was never harmed but one of his friends at [his] College and stabbed when these criminals came looking for him.

11. In support of these claim the applicant provided a statement [from Mr A] who describes himself as the applicant’s neighbour and friend. [Mr A] stated that the applicant’s father had been involved in the arrest of members of an organised criminal gang who were later convicted of an unspecified offence. In order to gain revenge the gang pressured the applicant’s father to join their party in 2007 and when he refused they threatened him. The applicant’s father decided to send him to Australia so that he would be safe. He left in 2008. In 2011 articles appeared in two newspapers which stated that Akhil Janatantrik Mukti Morcha [aka Janatantrik Terai Mukti Morcha or JTMM] was threatening the applicant and his father. Following this the applicant’s father left the area and has not been heard from since.

12. The applicant provided copies of translations of the newspaper articles mentioned by [Mr A]. They were both published on [the same day in] 2011 and both state that the leader of JTMM had threatened to kill the applicant and his father because they had passed information about the group’s “shelter” to the police resulting in the arrest of several members. They state that the group had told the applicant and his father several times since 2007 to “get improved” but they had not paid any attention. One states that they were warned not to live in the Terai area, but also states that they had fled but this would not save their lives.

13. The applicant attended an interview with a delegate of the Minister for Immigration on 22 January 2016. He said that his father had retired from the police in, but continued to work as a plain clothes investigator. He claimed that he and his father had been threatened by the JMTT who accused them of passing information the police which resulted in a number of their members being arrested. He said that he had not been harmed while in Nepal, but his friend had been stabbed after he left. He said that his father had fled to [Country 2] in 2011 and his mother was living in the north of Nepal.  The delegate suggested he could relocate in Nepal or go to [Country 1] to avoid problems. He said that the group would follow him wherever he went.

14. The applicant attended a hearing of the Tribunal on 16 August 2018. The evidence which he gave was somewhat confused, but in essence he said that he had not experienced any problems prior to leaving Nepal and had only become aware that he was in danger in 2011 when the newspaper articles referred to earlier were published and his father left for [Country 2].

15. I asked why the applicant feared returning to Nepal. He said that while he was studying and residing at [a] College during the civil war he had observed bad people doing things and had reported this to his father. He said that he had not provided any specific information about particular individuals or incidents, but he believe that the general information he had given his father might have led to some people being arrested. Later in the hearing he said that a girl who was studying at [the same] College had been raped by two men in about 2006 and he had reported this to his father. He did not know the names of the men involved, but he had seen them walking around in the area. He thought that they might have been arrested, but he was not sure. When asked if these men were criminals or part of a terrorist or political group of some kind he first said that they were criminals, but then said he believed that they were part of or associated with a group which had a presence throughout Nepal.  He said that he had not reported anyone else to his father and had not faced any problems during the time he remained in Nepal.

16. I observed that it seemed unlikely that the applicant would still be at risk of harm from these men if he returned to Nepal. He maintained that they would seek to harm him, but said that he believed that he was at risk mainly because of his father. He said that his father was an honest, respected police man unlike many other officials in Nepal. He claimed that his father had been involved in arresting criminals and terrorists, but said he could not provide any details because he had not lived with his father while studying and they did not talk very much. He said that he first became aware that his father was facing problems in 2011 when the newspaper articles were published and he [the applicant’s father] left for [Country 2]. He said that in 2011 his father told him that he was facing problems and that he [the applicant] should not return to Nepal because he was also at risk of harm, but did not give him any further information regarding the problems which he was facing or why the applicant was also at risk of harm at that time or on any other occasion. He speculated that his father was at risk of harm because of his involvement in the arrest of criminals or terrorists. I observed that it seemed unlikely that his father would have been in danger throughout Nepal for these reasons or that he would not have been able to seek protection from the Nepalese government. The applicant said that the government was corrupt and his father could not obtain protection. He said that he last spoke to his father was about 6 months ago and he was still in [Country 2] at that time.

17. I noted that the newspaper articles provided by the applicant were dated [in] 2011 and observed that it appeared somewhat strange that two newspapers had published articles which suggested that he and his father were in danger because of event which had occurred some years earlier at the same time. The applicant said that he had no idea why these articles had appeared in [2011]. I observed that it was my understanding that it was possible to have single newspaper pages printed and that while I had no knowledge of the newspapers in question, I was aware of cases where people had paid to have articles printed. The applicant maintained that the articles and the information they contained were both genuine. He said that after receiving the articles he had contacted friends in the area and they had also warned him that he was in danger. However, they were not able to provide any further information, probably because they were afraid.

18. I advised the applicant that in light of his inability to provide a detailed, coherent account of the problems that he and his father had allegedly faced in Nepal I had difficulty accepting that his claim to be at risk of harm if he returned. I also advised him that even if I accepted his claims at face value, I had difficulty accepting that criminals or terrorists or anyone else would have any continuing interest in pursuing him because of events which occurred in about 2006 or because of his association with his father. I advised him that it was my understanding that the JTMM  was a relatively small group which operated only in one part of Nepal and that it seemed highly unlikely that they would have any continuing interest in him or that they would have the ability to pursue him elsewhere in Nepal. The applicant maintained that his claims were true and that he would be at risk of harm if he returned to Nepal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country information

19. By way of text, the civil war between Maoist rebels and the government of Nepal ended in November 2006 and the overall security situation throughout Nepal has dramatically improved since the end of the conflict, although problems continue in the Terai region.

20. According to information contained in a 2016 report by the Research Directorate, Immigration and Refugee Board of Canada[1], JTMM is an armed group is a revolutionary group formed after a split in the Communist Party of Nepal which seeks independence for the Terai region of Nepal. It appears to have formed in 2004 after which it split into a number of factions. The group claims to have a significant support base in the area, but some observers believe that it only has had the support of about 1,000 people including hard-core cadres and sympathizers. It has a record of involvement in criminal activities including kidnapping and extortion.

    [1] Nepal: Information on the Democratic Terai Liberation Front (Janatantrik Terai Mukti Morcha, JTMM), including origins, structure, and activities (2002-September 2016) [NPL105604.E] Research Directorate, Immigration and Refugee Board of Canada, Ottawa

    Finding of fact

21. The applicant claims that he is risk of harm in Nepal because he reported criminal or terrorist activity to his father in about 2006. However, his evidence at the hearing vague, confused and unconvincing. During the hearing he provided differing accounts of the nature of this information, first indicating that it related to some general violence which he had observed during the civil war, but later stating that the only information he had given to his father related to the rape of a fellow student. Furthermore, even if I accepted that the latter claim was true (which I do not), there is no evidence before me which suggests that the applicant would be at risk of harm from these men or their associates if he returned to Nepal.  According to his evidence, he was unable to identify the rapists by name, he was not sure whether they had been arrested and nothing had happened to him prior to his departure from Nepal in March 2008. Furthermore, while he claimed that these men had some kind of association with a rebel or terrorist group he failed to explain what the association was or how he knew it existed. Finally, after I expressed doubt about these claims he said that he believed that his problems related to his association with his father. 

22. I do not accept that the applicant is or ever was at risk of serious or significant harm from criminals or terrorists or anyone else in Nepal because he passed information on their activities or crimes to his father.

23. The applicant claims that he is at risk of harm in Nepal because of his association with his father, who used to be a policeman.  However, at the hearing he said that the only time he and his father had spoken about problems which his father faced was in 2011. According to the applicant his father told him only that he was facing problems and that the applicant was also at risk of harm if he returned home, but provided no further information regarding these problems. I find the claim that the applicant’s father would fail to tell him why he had to leave Nepal in 2011 or why the applicant himself would be at risk of harm if he returned far-fetched and implausible. If the applicant’s father was genuinely at risk of harm and as a result of this the applicant was also in danger I have no doubt that he would have explained this to his son. I also note that according to the applicant he last spoke to his father as recently as six months ago. It is not plausible that the applicant would not have asked his father for information on the problems which might face him if he returned to Nepal if he genuinely feared that he would face serious harm if he returned to his homeland. 

24. I do not accept that the applicant is or ever was at risk of serious or significant from criminals or terrorists or anyone else in Nepal because he reported their activities to his father or because of his father’s activities as a police officer or for any other reason.

25. After considering all of the relevant evidence, I find that the applicant is not a truthful or a credible witness. I find that his claims were concocted in order to gain protection in Australia and I do not accept that he genuinely fears serious or significant harm on return to Nepal for any reason.

26. In reaching this conclusion I have considered the newspaper articles which the applicant claims were published in two local papers in Nepal. However, both articles suggest that the applicant and his father had passed information on the location of JTMM to the authorities and that the group had been threatening them since 2007. This is at odds with the applicant’s evidence at the hearing when he said that not experienced any problems prior to leaving Nepal in 2008. Furthermore, the applicant was unable to explain why these articles appeared in two different papers on the same day some two years after he left Nepal and over three years after he and his father were first threatened. Nor do the articles explain why the newspapers thought that the fact that the applicant and his father had been threatened since 2007 was suddenly newsworthy in 2011. While it may be that these articles appeared in local newspapers in Nepal in [2011], I am not satisfied that they contain accurate information regarding threats faced by the applicant or his father and I have given them little weight.

27. I have also noted that statutory declaration from [Mr A]. However, it purports to confirm claims which I have found to lack credibility. Furthermore, I find the claim that the applicant’s father was pressured to join a criminal group because the gang wanted revenge following the conviction of some of their members implausible. I have given this document no weight.

    CONCLUSIONS

28. There is not credible evidence before me which suggests that the applicant faces a real chance of suffering serious or significant harm for any reason if he returns to Nepal within the reasonably foreseeable future. I am therefore not satisfied that he has a well-founded fear of persecution for any of the reasons in s.5J(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk that he will suffer significant harm.

29. 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 s.36(2)(a).

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

31. 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.

   Roslyn Smidt
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation
   …
   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)that is not inconsistent with Article 7 of the Covenant; or

   (b)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 Covenant.

   …
   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)for the purpose of intimidating or coercing the person or a third person; or

   (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but 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 Covenant.

   …
   receiving country,  in relation to a non-citizen, means:

   (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note: For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note: For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K  Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L  Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA  Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)    the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …