1601481 (Refugee)

1601481 (Refugee) [2018] AATA 5206 (31 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601481
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Luke Hardy
DATE:31 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 31 July 2018 at 4:36pm
CATCHWORDS
REFUGEE – protection visa – Nepal – fear of persecution – loan sharks with Maoist links – unpaid debts – persecution by ex-husband – court dispute – intercaste marriage – 1958 Treaty of Peace and Friendship – availed htemsleves of right to reside in India – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(H), 5(J), 5K-LA, 36, 65 and 499
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 January 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, [Ms A] and [Mr B], are citizens of Nepal. [Mr B] arrived in Australia [in] March 2015 and [Ms A] [in] May 2015, both on [temporary] visas They lodged their protection visa application [in] May 2015. The delegate refused to grant the visas [in] January 2016. The applicants then sought review by this tribunal.
The applicants appeared before the Tribunal on 24 July 2018 to give evidence and present arguments. They were accompanied by their adviser, a registered migration agent. The hearing was facilitated by an interpreter in the English-Nepali medium.
For the purposes of this review, the applicants submitted a copy of the delegate’s decision. That document contains a hitherto uncontested summary of their claims and evidence to the Department.
CRITERIA FOR A PROTECTION VISA
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.
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.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her 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).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.
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
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main in this case is whether the applicants are entitled to protection in Australia as refugees or, if not, on complementary protection grounds.
Other issues in this case include the overall credibility of the applicants and the question as to whether they can avail themselves of third country protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
[Ms A]’s claims
[Ms A] claims fear of ill-treatment for reasons of her being falsely accused of immorality and for having married a man of a different caste. She also claims fear of persecution, in her capacity as [Mr B]’s spouse due to his unpaid debts to unscrupulous lenders. She identifies the lenders a Maoists but, on the evidence before me, “political opinion” is an incidental factor, not in any way significant to her claims.
[Ms A] claims that she used to be married to a man called [Mr C] who was abusive and overbearing. She claims she “formally separated” from him in February 2009. She claims he influenced their son to abandon her. She claims he also slandered her, spreading false information about her being a prostitute and brothel madam. She claims that for a time he would harass her with his associates in public. She claims the police, when she sought help, accused her of immorality and warned her that she could be arrested. She claims she met [Mr B] and formally married him, registering their marriage in 2009. This fact and references to [Mr C] as [Ms A]’s “former”, “past” and “previous” husband go some way to indicating that the marriage formally ended before [Ms A] remarried. At the Tribunal hearing, however, [Ms A] said her first marriage was never really declared ceased in law. She and her adviser indicated that there is much red tape, as it were, in Nepal and also much disorganisation and lack of communication in government administration, with marriages and divorce subject to the vagaries of attention from local jurisdictions called village development committees.
In any event, on the evidence before me, [Ms A] is legally married to [Mr B].
[Ms A] claims there has been no contact between her and [Mr C] for several years. She claims that he launched a case in court in 2010 to claim from her a parcel of land she had purchased on her own. She claims she launched a counter-claim in court for her share of her former husband’s inherited land. She says these cases are still on foot in the Nepalese courts. She told me that these cases and their possible outcomes are not a reason for her asylum claim. She said in her protection visa application that after these cases were launched in 2010, [Mr C]’s family “attempted” personally to harm her “dozens” of times.
Looking at the question of future harm, I asked [Ms A] what she fears will happen to her in the event of return to Nepal, and she said that she fears being the subject of insulting remarks from people in society. I put to her that such treatment might not, on its own or, depending on the circumstances, even cumulatively amount to persecution, even over time. I explained to her the meanings of significant harm as exhaustively defined in s.5(1) of the Act. She then said she faces physical and mental “torture”. I questioned why she did not cite “torture” when first asked, only suggesting it after I had told her that “insults” seemed insufficient to be reasonably regarded as persecution or significant harm. In reply, she said that her former husband could give her a hard time wherever he found her.
[Ms A] said that her present husband [Mr B]’s family also verbally harasses her, partly due to her being of a different caste from that of [Mr B].
[Ms A] claims she and [Mr B] fled to India in 2013 to get away from his creditors, who he has described as Maoists. She confirmed this when she told me that she remained in Nepal for three years after marrying [Mr B]. She claims [Mr B] was also owed money from people in whose ventures he had invested. She claims they resided in [Town 1], India, near her home town. She claims she and [Mr B] saw other Nepalese migrants or visitors moving about in [Town 1]. She claims [Mr B] suspected he was being followed around in [Town 1] by some of these other Nepalese. She claims he told her that he recognised one of these people as a Maoist youth leader from Nepal. She claims she and [Mr B] then moved to New Delhi where they resided for four months before going to [Country 1]. She claimed they resided again in New Delhi for a further year. She did not claim that they faced any relevant harm there. She claims it was difficult for them to find any work due to poor command of Hindi. They briefly re-entered Nepal twice, evidently, before flying to [Country 2] and, later, to Australia.
I put to [Ms A] that she and [Mr B] appeared to have availed themselves of an enforceable right to enter and reside long-term in India by virtue of the 1958 Treaty of Peace and Friendship.[1] She said in response that she and [Mr B] had to hide for fear of being located by Maoists in India, but her evidence about hiding there struck me as vague, as she suggested having seen other Nepalese migrants in India while she was out and about in [Town 1].
[1] DFAT THEMATIC REPORT: INDIA-NEPAL TREATY OF PEACE AND FRIENDSHIP: RIGHTS OF NEPALIS IN INDIA, 22 December 2016
Interestingly, when I asked [Ms A] what harm she fears in the event of return to Nepal, she failed to mention direct or indirect harm from her husband’s creditors and their proxies, all described by him as Maoists. I shall nevertheless infer that there is an implied claim about [Ms A] being implicated in her husband’s problems with disaffected lenders.
[Mr B]’s claims
[Mr B] claims he met “[Mr D]”, a businessman like himself, who came from his home district and, like him, moved to Kathmandu. He claims [Mr D] had profited from the laundering of ill-gotten gains accumulated by the once-outlaw Maoists, prior to their being brought into the democratic political process in Nepal. He claims [Mr D] convinced him to build his business with money from a Maoist source. He claims he went into the deal prepared to pay a minimum of 15% interest or 50% of his profits, whichever was the greater sum. He claims he also understood at the time of entering into the arrangement that the Maoists would kill him if he defaulted on any of the arrangements. He claims he agreed because he saw this as an “ample opportunity”.
[Mr B] claims he never met any Maoists. He claims that [Mr D] dealt directly with them on his own. He said his personal agreement was with [Mr D] only and that it was purely an oral agreement. He claims he never signed any undertaking. He claims he bought and sold [goods], dealt solely in cash and did not register any of these businesses. Essentially according to what he clams, there is no material evidence to support his claims about ever having set up a business on finds borrowed from or through [Mr D].
[Mr B] claims his business went well and that he was able to meet the conditions of the loan/investment until his own bank tightened his home loan. He said that returns on his [investment] dropped and the strain affected his first “marriage”, an unregistered relationship that later collapsed. He claimed he later met and married [Ms A] and registered their marriage.
[Mr B] claimed in his protection visa application that the problems with his [investments] led him to focus more on his [goods] business which improved. He claimed, however, that he was losing more money because loans he provided and investments he made went bad due to his clients defaulting and absconding on him. He claims he launched and won a court case to recover debts but was unable to recoup anything because his debtor had disappeared. he provided untranslated evidence of this case, and although it is not translated, I accept that there was just such a court case that went in his favour and that the judgment was essentially moot because the debtor could not be located. [Mr B] claims that repayment cheques from another debtor repeatedly bounced. He provided the Tribunal with credible and satisfactory evidence of this problem.
[Mr B] claims that [Mr D] passed to him threats from the Maoist lender to pay or die. He claims that [Mr D] was only the messenger and that the situation was difficult for him as well. He claims that in December 2012 a group of masked men kidnapped him from his home and held him for three days of beatings and other harassment. He said they gave him five weeks to pay what he owed or be killed. He claims they demanded and confiscated his and [Ms A]’s passports. He claims he and [Ms A] were able to obtain replacement passports which they used for visa-free overland escape into India. He says he chose the town of [Town 1] in India as it was near where he lived and worked, enabling him to use his mobile telephone service to try further to recall debts owed to him, the better to repay the Maoist lenders. He claims [Mr D] later called him in [Town 1] to say that he, [Mr D], had been caught by the Maoist lenders and threated.
At the Tribunal hearing, [Mr B] claimed that [Mr D] was his “middle man”. In later evidence he said that [Mr D] too was a Maoist, but this claim struck me as being inconsistent with claims to the Department and at the hearing about [Mr B] never having personally met any Maoists. [Mr B] did not resolve the apparent discrepancy when I raised it with him. He did, however, confirm that he and [Mr D] had no written records of their end the transactions described in this matter. Meanwhile, [Mr B]’s claim about the Maoists catching [Mr D], with whom [Mr B] lost contact, suggests that they did not regard [Mr D] as one of their own but, rather, as an independent entity.
[Mr B] claims he and [Ms A] stayed a further two months in [Town 1]. I note again that that they resided a year in New Delhi. I put to [Mr B] that, looking at his evidence overall, neither he nor [Ms A] were harmed in India. He said this was because he and [Ms A] hid themselves, scared of their own shadows, as he put it, and never went outside. However, I note that he claimed in his protection visa application that after [Mr D] was allegedly caught, and during the next two months in [Town 1], he and [Ms A] observed that they were being followed and monitored by some Nepalese people including one person who, as mentioned above, he recognised individually as a Maoist youth leader.
Seeming to contradict this at the Tribunal hearing, [Mr B] did not claim to have seen any people following him. He did not claim to have had any encounter with the alleged Maoist youth leader either. Instead, he merely speculated on what might have happened had he been monitored by them: “If they find me, they would kill me.” He said he avoided being spotted due to hiding in [Town 1] with [Ms A]. When I put to him that he had previously made claims about being followed and personally monitored by Maoists specifically including one who he recognised from Nepal, he said he had merely been “paranoid”, which I took to mean that he had been fearful in [Town 1] without actually being followed or monitored, let alone by anyone he recognised. Again I put to [Mr B] that he had claimed to the Department that the Maoist youth leader had located him. In reply, he said he saw the Maoists but, essentially, they did not see him, or else they would not have let him go. I reminded him that he had claimed that the Maoists had been following and monitoring him: this was a claim to the effect that they were aware of him and some of his movements in [Town 1]. In response, [Mr B] said they did not see him. I asked him then to say whether it was true or false that they were following and monitoring him and he said, “I feel they were.” On the evidence before me, [Mr B]’s claim about having been located in India by or on behalf of his “Maoist” creditors/investors, including the reference to the Maoist youth leader, is false and unreliable. I give it no weight.
The applicants claim that to return to Nepal would mean death. However, both of them evidently returned to Nepal prior to both of their journeys beyond India. [Mr B] told me that he returned to Nepal just to change money because he knew of more, and easier, ways to do it there without transactions recording his name, making it harder for his whereabouts becoming known to the Maoists. On one hand, this seemed to tacitly to imply that [Mr B] did not consider himself yet to have been traced by the Maoists. In any event, I put to [Mr B] that he gave a different reason to the Department for having returned to Nepal to change money, being that he knew of no way at all to do so in India. In response, he said the two statements were essentially the same. On review of the evidence before me, I find that the two statements are not the same. I put to [Mr B] that, according to his evidence overall, he seemed to have suggested that it was easier for him to be noticed and located in Nepal; he then said he hid himself back in Nepal for the brief time he was there.
[Mr B] also said he and [Ms A] also returned to Nepal because they could not travel abroad directly from India. I asked the applicants why they did not claim asylum in [Country 1], after going to all of the trouble of travelling there. Both applicants said they did not know they could claim asylum there because no-one had ever suggested that to them. They said they just went there for a look, found it more expensive than India and returned to New Delhi.
Although the problem puts him at a disadvantage, [Mr B] does not suggest that being owed money by defaulting clients will lead on its own to his being persecuted in Nepal (s.5J(5) of the Act) or to significant harm (as exhaustively defined in s.5(1) of the Act). However, he does claim that not being able to recover what he lent and invested has made it impossible to repay his own debts and avoid persecution from the Maoists.
I have had regard to independent country information on the stance of Nepalese authorities in respect of loan sharks and the people whose lives they affect. [2] [3]
[2] “‘Loan shark’ singer faces music,” Ekantipur, 12 January 2016,
[3] “Loan shark Singh remanded to custody,” Ekantipur, 4 April 2014,
Findings in relation to s.36(2)(a) of the Act
[Ms A]
I accept that [Ms A] was married in the past to the man identified above as [Mr C]. I accept that the marriage ended. Whether [Ms A] is officially divorced from [Mr C] is not clear: she says she is not, but her second marriage is official, so I take it that while [Ms A]’s first marriage had some traditional basis, it was not sufficiently official such as through state registration as to prevent her marrying again. I accept that [Ms A] is officially married to [Mr B]. I accept that both of [Ms A]’s marriages have been inter-caste marriages.

I accept that [Ms A] is awaiting the outcome of a court dispute over her land. I am not satisfied that this situation or a judgment in [Mr C]’s favour gives rise, separately or cumulatively, to a real chance of [Ms A] being persecuted.
[Ms A]’s claims about suffering ongoing harassment from [Mr C] and his family during the three years after separation and re-marriage in 2009 are vague and unimpressive. I give them little weight, not least since she only claims they “attempted” to harm her some years ago, and since she gave [Mr B]’s predicament with his debts as the reason she and he fled Nepal for India. On the evidence before me, I give very little weight also to [Ms A]’s claims about negative verbal remarks addressed to her by [Mr B]’s family and ex-wife.
When I asked [Ms A] what harm she fears in the future, her answer, a considered and somewhat detailed one in my view, was merely about verbal abuse from neighbours and strangers. I am prepared to accept that some conservative and bigoted individuals may call [Ms A] names connected with perceptions of immorality and prostitution. I also understand that receiving such comments involves discomfort, embarrassment and even some occasional sense of humiliation. However, I am not satisfied that such treatment would even cumulatively amount to persecution in [Ms A]’s case.
On the evidence before me, I am not satisfied that [Ms A] faces a real chance of physical or mental harm, or any other form of harm capable to being characterised as serious harm, let alone amounting to persecution, from anyone in Nepal in relation, separately or cumulatively, to her divorce, remarriage, gender or caste.
As to [Ms A] being persecuted directly or indirectly for reasons of [Mr B]’s debt problems, this is a claim involving “membership of a particular social group”, the group in this case being characterised reasonably as [Mr B]’s new family. To deal with that claim, I must first make findings in regard to the evidence of [Mr B].
[Mr B]
I accept that [Mr B] was previously legally married and divorced before he married [Ms A] in 2009. I accept that they are of different castes. I am not satisfied on the evidence before me that [Mr B] faces a real chance of being persecuted in Nepal, either directly or indirectly, for reasons of marrying [Ms A], or for reasons of entering into a second marriage, or for reasons of marrying a woman of a different caste, or for any other reason involving inferences about their relationship.
I accept that [Mr B] is owed money from people to whom he previously lent and in whom he invested. I accept that the courts intervened, and I accept that they found for [Mr B] in what was a moot victory for him because his debtors have disappeared (conceivably, for example, to India). I am not satisfied that [Mr B] faces a real chance of being persecuted for a reason cited in s.5J(1)(a) of the Act due, either separately or cumulatively, to his predicament as a disaffected lender/investor.
[Mr B] claims, as noted that his inability to be repaid affects his ability to pay. Relevant to this, it seems reasonable to observe, his claims about borrowing money from people he did not know or meet, with only verbally-agreed terms through an intermediary, strikes me as implausible, not least since he provided evidence of the way he does business in matters financial: knowing his clients and contracting in writing to record amounts to be transferred and repaid. On the evidence before me, it seems out of character for [Mr B] to be distracted by the amount offered into borrowing on the terms and in the circumstances claimed. It may conceivably be that he has different ways of operating, depending on whether he is parting with his money to help others and others are parting with their money to help him, but it still strikes me as incongruous that [Mr B] did not engage in a more secure and accountable arrangement when he purportedly borrowed money to grow his [goods] and real estate businesses.
In any event, I accept that [Mr B] borrowed money through the man identified as [Mr D] and I am prepared to proceed on the basis of accepting that the loan was from a “loan shark” individual or syndicate. However, as to [Mr D] being a middle-man between Maoist lenders/investors and [Mr B], I have difficulty accepting that Maoists have anything to do with this case at all.
Whereas [Mr B] gave a quite plausible account of how Maoists, after co-option into the democratic process, continued to launder money through investments and loans, he has been inconsistent in his evidence as to whether he ever had any direct contact with any Maoists themselves. Initially he claimed that he had no direct contact whatsoever. He told me he made no deals with them. As noted, he said he made all his agreements with [Mr D], and none of them on paper. He argued that [Mr D] was somewhat of a buffer between himself and the Maoists who he did not ever meet. However, when I questioned how [Mr D] had survived so long, considering he was purportedly the only person in this matter with whom the Maoists ever dealt, [Mr B] said that [Mr D] too was a Maoist, which assertion directly contradicted all of his foregoing evidence about his indirect relationship with the Maoists.
[Mr B]’s claim about never having had any direct contact with the Maoists appears somewhat contradicted by the direct contact he claims to have had during his claimed abduction and interrogation in 2012, as he claims his abductors were solely concerned with the money lent to him.
Meanwhile, [Mr B] gave inconsistent evidence, over time, about the presence and actions of Maoists in [Town 1]. He gave self-contradicted evidence about having seen Maoists, including a known Maoists youth leader, following and monitoring him in [Town 1]. He did not resolve whether he saw them, and saw them following him, or just feared (using the “paranoid” expression) that they could come after him in India.
I can accept that [Mr B] left for India, and took [Ms A] with him, in order to avoid the problem of not being able to repay debts in Nepal. I can also accept, having regard to the documents tendered at the Tribunal hearing, that [Mr B] has tried unsuccessfully to recoup loans and investments me made in respect of others. I can thus accept that being a disaffected creditor of sorts has exacerbated [Mr B]’s predicament with his own lenders. However, on the contradictory evidence before me, I do not accept that [Mr B]’s creditors/investors were Maoists or Maoist-backed. Also, in view of the inconsistencies in [Mr B]’s evidence, I am not satisfied that he was abducted in December 2012 and given five weeks, under threat of serious harm, to repay monies either lent to or invested in him.
Whether or not the lenders/investors in this case were Maoists is a significant factor in the harm [Mr B] claims to fear. This is because [Mr B]’s claims about the real chance of suffering harm relies significantly on the Maoists having wide-ranging social and political networks as well as unscrupulous methods of expressing and maintaining power.
On the evidence overall, I am not satisfied that [Mr B] borrowed from Maoists. However, as noted, I am prepared to accept that he entered into an arrangement with a loan shark or loan shark syndicate.
That said, I am not satisfied that [Mr B]’s claimed fears involve any of the five factors cited in s.5J(1)(a) of the Act. His claims relate purely to individual criminal and mercenary circumstances.
I find on evidence provided by [Mr B] that the Nepalese authorities are willing and able to arbitrate in matters of bad debts. I also find on the evidence before me that the authorities are also willing and able to protect Nepalese society from the unscrupulous actions, demands and terms of loan sharks in Nepal.[4]
[4] Ibid.
On the evidence overall, I am not satisfied that [Mr B] faces a real chance of being persecuted in Nepal in the reasonably foreseeable future, let alone for any of the five reasons cited in s.5J(1)(a) of the Act.
I am also not satisfied that [Mr B] faces a real chance of being persecuted in Nepal for reasons involving [Ms A]’s claimed concerns about caste, remarriage and imputed moral standing in Nepalese society.
For the reasons given above, I am not satisfied that [Mr B] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
[Ms A], again
In light of these findings, I am not satisfied that [Ms A] faces a real chance of being persecuted in Nepal in the reasonably foreseeable future for reasons of being a member of the “particular social group” characterised as [Mr B]’s family or second marriage.
I am not satisfied that there is a real chance of [Ms A] being persecuted in Nepal in the reasonably foreseeable future, let alone for any of the reasons identified in s.5J(1)(a) of the Act. She is not a refugee.
For the reasons given above, I am not satisfied that [Ms A] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Overall findings on the applicants’ refugee claims
I am not satisfied that either applicant faces a real chance of being persecuted in Nepal in the reasonably foreseeable future, let alone for any of the five reasons cited in s.5J(1)(a).
Accordingly, I am not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“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. According to s.5(1), the last three definitions of significant harm all require an element of intention to harm.
The applicants’ claims to complementary protection are essentially the same claims made with regard to being recognised as refugees. In view of my findings of fact above, and in view of the “real risk” test imposing the same standard as the “real chance” test above, the applicants’ claims do not succeed as complementary protection claims.
On the evidence before me, I am not satisfied that I have 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 the applicants will suffer significant harm.
Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
Alternative findings
In the alternative, I am satisfied that the applicants have an enforceable right to enter and reside in India, a third country that I find they took temporary steps to reside in for a number of years fairly recently, under the auspices of the India-Nepal Treaty of Peace and Friendship.
Accordingly, the applicants are caught by s.36(3) of the Act:
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
Relevantly, I note that s.36(3) does not apply if the applicants meet any of the clauses (4), (5) or (5A):
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also,
subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
I am not satisfied on the inconsistent evidence before me that [Mr B] was followed in India by creditors or their proxies, or that he would be located by them there.
I do accept that for the applicants the task of finding work in India might be limited to some extent by poor command of Hindi, but I am not satisfied on the evidence before me that their language and work limitations would give rise to a real chance of persecution or a real risk of significant harm in India.
I give some weight to the applicants’ description of life in New Delhi as being easier for them to manage and afford than in other places, such as [Country 1]. I give some weight to the applicants’ claimed ability to move to New Delhi after having entered India. I give some weight to how long they resided there in the past, albeit relying to a large part on savings. I do not accept that the applicants hid, in any sense of the word, in India.
I am not satisfied that the applicants face a real chance of being persecuted in India, or that I have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants availing themselves of their right to enter and reside in India, there would be a real risk that will suffer significant harm in relation to that country.
I am not satisfied that the applicants have well founded fear of being returned to Nepal from India.
Accordingly, I am satisfied on the evidence before me that that the applicants are caught by s.36(3) and are not saved by ss.36(4), (5) or (5A).
Other findings
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Luke Hardy
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.
…

[2018] AATA 5206

31 July 2018

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Immigration

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