1601624 (Refugee)

1601624 (Refugee) [2018] AATA 230 (9 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601624
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Christine Cody
DATE:9 January 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 January 2018 at 1:27pm
CATCHWORDS
Refugee – Protection visa – Nepal – Political – Harm from Maoists – Targeted over family land – Inconsistent, changing and unlikely evidence – Delay in claiming protection
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a) and 5H(1)(b), 5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36(2A) and (2B), 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a Nepalese national who seeks to be granted a Protection visa under s.65 of the Migration Act 1958 (the Act) on the grounds that he is a refugee or entitled to protection under Australia’s complementary protection provisions. He applied to the Department of Immigration for the visa [in] April 2015 and the delegate of the Minister for Immigration refused to grant the applicant a protection visa [in] January 2016.
This is an application for review of that decision, and the relevant law is set out in Annexure A. The applicant was represented by his registered migration agent [in] relation to his application before the Department, and for review before the Tribunal. In addition to all relevant evidence and information, in accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the country information assessment prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Report on Nepal, 21 April 2016 (the DFAT report).
For the reasons set out below, the Tribunal does not accept that the applicant has a well-founded fear of persecution, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm. The Tribunal has accordingly affirmed the decision of the delegate to refuse to grant the applicant a Protection visa.
CLAIMS AND EVIDENCE
The Department
The Departmental file relating to the application for a protection visa contains documents including the applicant’s protection visa application forms, his statutory declaration (“statement”) sworn [in] June 2015, a copy of pages of his passports, supporting documents, written submissions from his agent dated [in] June 2015, a copy of the recording of the interview with the delegate [in] July 2015 (to which the Tribunal has listened) and the delegate’s decision record. There are no certificates restricting disclosure of any material on the Department’s file.
According to the applicant’s written documents, his background and claims can be summarised as follows:
·     The applicant was born on in [year] and resided all of his life in [address] Kathmandu[1] before coming to Australia.
[1] This complete address was provided later.
·     He speaks, reads and writes in English and Nepali. His religion is Hindu.
·     He departed Nepal [in] May 2006, and arrived legally in Australia [in] May 2006 as a student.
·     He completed a 6 month preliminary HSC Program, and a [certificate] since he has been in Australia. He also partially completed his [Diploma] (by studying an extra 8 months after his Certificate was completed). His last Australian study was in December 2008.
·     He was refused a student visa in 2013.
·     He received a conviction for [offence] [in] March 2015.
·     His current occupation is unemployed. He has worked in Australia.
·     He commenced a relationship in Australia in 2008; he separated in September 2012.
·     He has a sister in Australia, and in Nepal he has his parents, uncle [and other siblings]. He is in contact with his family over the phone and through internet social sites.
·     He left Nepal to pursue studies in Australia, but also because of fear of harm from the Maoists. They were targeting him and his family because of their inheritance property located in Kathmandu. It had been purchased by his grandfather and owned for a very long time.
·     [Name] (hereafter referred to as “RLS”), however, claimed in 2005 that the property was his. This dispute, however, never went to the court, as his grandfather never thought to take it to the court.
·     RLS then enlisted the assistance of the Maoists to obtain the property. This led to threats from the Maoists, including requests for donations, and they had to live out of their house on several occasions. The continuous threats led to his family deciding to send him somewhere safe, where he could also finish his studies.
·     “This matter” went to court in 2011; it is still under consideration at the District Court. The Nepalese authorities have been able to find out that RLS is a fake person, and they ordered that the local authorities should locate RLS; they have been unable to do so.
·     His parents, however, are still receiving threats from RLS and the Maoists to either hand over the land to RLS or donate a huge amount of money to settle the matter. As they have not done so, they are still under threat. His family have left home in order to save their lives and they advised him that his life is also in danger if he returns to Nepal.
·     If he returns, the Maoists will harm him. He has been threatened before and he fears for his life. He cannot relocate without selling the property and, even if he did, the Maoists are everywhere. His father has been threatened that they will kill them if the property is not handed over and they are targeting him as well. The Maoists are in charge. The authorities are not strong enough to protect the citizens.
It was submitted on behalf of the applicant that:
·     The applicant belonged to a particular social group of “being victimised by the Maoists in Nepal”. When the dispute arose, the Maoists were the leading party in Nepal; the family could not have complained about them. The Maoists were upset that his family was not able to pay the donation.
·     The applicant has a subjective fear as he has been previously targeted by Maoists. He faces serious harm relating to threat to his life/ liberty, ill treatment, denial of capacity to earn a livelihood. He also faces significant harm.
·     He will attend the interview where he will explain his claims in detail.
The applicant provided to the delegate a number of documents and translations; these were discussed at hearing and are referred to later.
The interview and delegate’s decision record[2]
[2] The information in this section is sourced from the delegate’s decision record.
The delegate’s decision sets out the applicant immigration history, as follows:
·[In] January 2006: applied for student visa TU-571.
·[In] April 2006: TU-571 visa granted.
·[In] May 2006: arrived in Australia.
·[In] June 2006: applied for further TU-571 visa with permission to work.
·[In] June 2006: TU-571 visa granted.
·[In] June 2007: applied for student (vocational sector) visa TU-572.
·[In] September 2007: TU-572 visa granted.
·[In] May 2009: applied for further student (vocational sector) visa-TU-572.
·[In] July 2009: TU-572 visa granted.
·[In] October 2010: applied for further student (vocational sector) visa TU-572.
·[In] December 2010: TU-572 visa granted.
·[In] June 2011: applied for further student (vocational sector) visa TU-572.
·[In] September 2011: TU-572 visa refused.
·18 October 2011: application for review by Migration Review Tribunal (MIT) of refusal of TU-572 visa.
·10 April 2013: MRT decision to affirm refusal of TU-572 visa.
·[In] May 2013: application for judicial review of MRT decision to affirm refusal of TU-572 visa.
·[In] February 2014: applicant withdrew judicial review
·[In] April 2015: applicant lodged protection visa application
The decision record referred to the applicant’s evidence at interview, including as follows:
· The contested property (the [suburb] property, the family home) was inherited by the applicant’s father, an uncle and another relative, from the grandfather after he died. The applicant’s father is the owner of a shop located under the [home].
· The applicant’s family are currently living with his sister in [suburb], Kathmandu; about half an hour away from the family home. He indicated that this was both because of the earthquake and the threats. They have been living in and out of the area for past four years.
The delegate was prepared to accept that the applicant’s father was undergoing a judicial process in relation to land he inherited as a [age] child and that the applicant is from Kathmandu. The delegate did not accept that the applicant’s family moved house solely because of threats, nor that the applicant has been threatened in relation to a land dispute.
The delegate referred to country information on Nepal, noting that the civil war between the Maoists and the government started in 1996 and finished in 2006, and that since that time Nepal has been in transition and has slowly made progress. The Maoists have been brought into the political mainstream, and although there has been some Maoists violence, the South Asia Terrorism Portal has not recorded a fatality caused by Maoists since 2012[3].
[3] Page 7-8, delegate’s decision record
The delegate noted that the applicant had arrived in Australia [in] May 2006, nearly a year after the threats against his father commenced, and the threats have been ongoing. However it was not until April 2015 that he lodged a protection visa application. The delegate had a number of concerns, and was not satisfied that the applicant is a refugee or entitled to complementary protection.
The delegate noted that Nepali citizens may have effective protection in India, but that as it was found that there were no protection obligations owed, no findings were made on this issue.
The Tribunal
The applicant provided to the Tribunal an application for review, a copy of the delegate’s decision record, and prehearing submissions from the agent.
The Tribunal also had before it the Departmental files and Tribunal files relating to the applicant’s student visa application, refusal and review application lodged to the (then) Migration Review Tribunal. Those files are not relevant (unless otherwise referred to in this decision).
The applicant appeared before the Tribunal on 10 November 2017 to give evidence and present arguments. The agent attended the hearing. The Tribunal explained that it was considering whether the applicant met the requirements as a refugee or under complementary protection, noting it was not bound to follow the delegate’s decision record and it would make a fresh decision on all of the evidence before it, up until the time it issued a written decision.
In the application for review form, in answer to the question of whether he sought to ask for an interpreter, the applicant said no. Further, when he was forwarded the Hearing Invitation on 23 October 2017, he was requested to tell the Tribunal at least seven days prior to the hearing if he wanted to use the services of an interpreter. He did not do so. The information sheet provided to him prior to the hearing stated that, if requested, the Tribunal would organise an interpreter to be present at the hearing for the applicant. At the hearing, when the Tribunal noted that the applicant had not requested an interpreter, it said that it was important for him to say if there was anything he did not understand. The Tribunal considers that the applicant’s English was at a very good level and is satisfied that the applicant was able to understand the proceedings, give evidence and present arguments in English.
Some of the evidence given by the applicant included the following:
·     He told the Tribunal that his application forms, statements, and the submissions from his agent are all true and correct.
·     The applicant confirmed and expanded upon his claims. His family are living in [suburb]; his sister’s husband’s address. The husband works in an office; his sister owned a boutique but no longer does so. His father used to have a [business] but stopped working at his business in 2011. He survives financially because they had “quite a bit of land”[4], and he sold land to meet the daily expenses. He is not sure how much land has already been sold; as at the date of hearing his father still owns [number] blocks of prime real estate.
·     His father had given him some money since he has been in Australia (including towards education fees)[5].
·     The applicant told the Tribunal that he became unlawfully present in 2013 after he withdrew his application before the Federal Magistrates Court.
·     The Tribunal asked the applicant whether anyone’s homes were affected by the earthquake and he said the family home, and his neighbour’s house, but not his sister’s house.
·     His [sister] works [in] Australia. She is married to a man of Nepali heritage; when she returns to Nepal to visit, she stays in her husband’s family house; this is located about half an hour away from the family home. She travels to the family home to see her family.
·     The applicant said that there are political problems because of the Maoists and they are in government. When asked what he meant, he explained that this related to the Maoists; if they kidnap or harm him he does not know if the system could protect him.
·     When asked what he fears or is worried about if he returns to Nepal, he told the Tribunal that, apart from the Maoists and sources of harm arising from his claims relating to the Maoists, he has no other concerns about returning to Nepal.
[4] The Tribunal noted that in the files relating to his student visa, the applicant had produced a mortgage against land owned by the applicant’s father (at ward [number]); he told the Tribunal that this was part of the land the family owned, and it was just land, as opposed to the house and land that was in dispute and sought by Maoists.
[5] The Tribunal notes that the files relating to his student visa show that he had received money from home.
While noting that it had not made up its mind, the Tribunal put to the applicant its concerns with the credibility of his claims, as well as country information sourced from the DFAT Report. In accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the country information assessment prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Report on Nepal, 21 April 2016 (the DFAT report).
At the end of the hearing the Tribunal offered the agent the chance to make any submissions he wished. He said he would like to make written submissions. The agent submitted that they would like further time to produce more documents in case the applicant found more documents. The Tribunal noted that documents should have been produced before the hearing, as a decision could be made once the hearing was finished. It asked what documents were sought to be produced and why they had not been produced earlier. The agent said he was not sure if there were further available documents back in Nepal but he wanted to take instructions from the applicant. The Tribunal agreed to delay making a decision for one week to allow the applicant the opportunity to produce additional documents.
The Tribunal did not receive any further communication from the agent or applicant.
Further relevant evidence, and information put to the applicant pursuant to s.424AA of the Act, is set out below.
FINDINGS AND REASONS
Country of reference
The applicant produced his expired and current passports issued by the Nepali authorities. The Tribunal accepts that the applicant is a national of Nepal, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Nepal.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).
The Tribunal had a number of concerns about the applicant’s inconsistent, changing and unlikely evidence, and his delay in claiming protection in Australia. The Tribunal’s concerns are set out below.
Firstly, the Tribunal was concerned that there were inconsistencies and implausibilities in the applicant’s claims and evidence, and that he appeared willing to change his evidence when concerns were raised with him, as set out below.
Inconsistencies relating to the number of assaults on his father: The applicant said that his father had been assaulted about 5-6 times before the applicant came to Australia; and that this had continued after he arrived in Australia but he did not know how often because his parents did not want to worry him. However, as set out in the delegate’s decision record, he told the delegate at interview that his father was assaulted once (and was able to register a complaint with the police)[6]. The Tribunal put its concern with this inconsistency. The applicant said that he does not recall saying that it was once; he knows that his father has been assaulted a few times, but perhaps he didn’t say it right.
[6] Page 10, delegate’s decision record provided to the Tribunal by the applicant.
The applicant’s changing claim about how much of the property he is due to inherit, and the Maoists’ failure to take action against the other two owners, or other family members, or against the vacant property: The Tribunal asked the applicant why he faced harm from the Maoists and he said that they are threatening his father because the applicant will be next in line to get all of the property. The Tribunal put to him that, if his father owns one third of the property, then the applicant would not be in line for all of it; he would only be in line for one third. The applicant then changed his evidence and agreed that he would only be entitled to one third of the property. The Tribunal was concerned that the applicant was prepared to change his evidence to respond to the Tribunal’s concerns, which undermines his credibility.

The Tribunal also put to the applicant that he had not claimed that the other two owners of the land had suffered any harm/ threats. In response, the applicant said that this is because his father is the main person who takes care of property and land issues; they don’t live at the property, and the Maoists don’t know who they are. The Tribunal put to the applicant that this seemed inconsistent with the documents he had provided relating to the proceedings taken about the land, which clearly provide the names of the three people (including the applicant’s father) seeking to register the property and involved in the court case. The Tribunal suggested that the Maoists would know their names. The applicant then said that “the Maoists would know the names, how can I explain it, they know the names but I don’t think they know who they are”. The Tribunal did not find this persuasive. It also put to the applicant that the Maoists ignoring the other two owners of this prime real estate for 10 years seemed inconsistent with the assertion that they have wanted to own this prime real estate and are prepared to threaten/ kill for it. The applicant did not respond except to say that they know where the applicant is and he is threatened. The Tribunal does not find this response to be persuasive.
Further, the Tribunal put to the applicant that if they were prepared to assault his father in their desire for this real estate, why wouldn’t they assault other family members too. He said he does not know why. The Tribunal also noted that Maoists had a reputation for kidnapping people, so it does not understand why they have not kidnapped his family members and held them for ransom to force them to hand over the property; the applicant agreed that they are known for kidnapping people. He doesn’t know why they haven’t kidnapped his family members.
Further, the Tribunal also noted that that if his family moved out of the property in 2008; this would mean that it has been vacant for 9 years. If this was so, it did not understand why didn’t the Maoists just take over the prime real estate that they want, and use it. He said he doesn’t know.
While the Tribunal accepts that the applicant would not know why Maoists would or would not act in certain ways, it does not find his evidence to be persuasive, and considers the circumstances described seem unlikely.
The family’s behaviour indicating that they have no fear, and the applicant’s inability to explain why he could not go back if his family had been living safely away from the family home for many years: The Tribunal put to the applicant that it did not appear that the family was living in fear, as they were only residing 30 minutes away, at his sister’s house, and they had continued to reside there for 9 years, a place where they could have easily been found by the Maoists, despite the feared harm. In response the applicant said that they could not have moved because they had nowhere else to go. The Tribunal then put to him his evidence that his father had [number] pieces of land so it was hard to accept that, despite having access to land that could be sold giving the family an opportunity to move away, they remained living 30 minutes away from the source of harm. The applicant then responded that he did not really know why his father didn’t sell and move the family somewhere else. The Tribunal then put to the applicant that if his family could live 30 minutes away from the Maoists for 9 years and remain safe, then it would appear that he too could do the same. The applicant’s only response was that he has a fear of going back and that something will happen to him. The Tribunal does not find the applicant’s evidence to be persuasive, and considers that it undermines his claims and credibility.
Evidence about the Maoists’ use of social media: As noted in the delegate’s decision record[7]:
·     At interview the applicant was shown screenshots of Facebook profiles owned by his father and his [brother], both of which have publicly accessible photographs (of themselves and other family members) which have been updated recently.
·     It was put to the applicant that he has made claims that his entire family face a threat from individuals wishing to take their property and that his claims that his entire family feel threatened to the point of needing to relocate may be weakened by the fact that his family maintain publicly available Facebook pages. If the family believed that the Maoists were trying to harm them or kill them as a result of a land dispute, it seems incongruous that they would risk their own safety by providing those individuals with photographs of themselves, and perhaps their location, in order to render themselves more easily identifiable and locatable. The social media presence is indicative of individuals who are not in hiding or fearing pursuit and harm.
·     In response, the applicant had claimed that the Maoists do not use social media.
[7] Delegate’s decision record, pages 9-10.
The Tribunal noted his claim that his family moved only half an hour away, and have resided there, at his sister’s house, for nine years. The Tribunal put to the applicant the references in the decision record to social media and said that these matters together seems inconsistent with the claims that the family are in hiding. In response he said that everyone uses social media nowadays and, whatever pictures they have posted, it doesn’t mean they were taken at that time. His family could have posted old pictures. His brother is a young guy who posts pictures. The Tribunal noted that it was also his parents who had Facebook accounts and that this does not seem to indicate that they are in hiding. The applicant said that he understands what the Tribunal is saying. The Tribunal considers that the applicant has not offered a persuasive explanation as to why his family, who live half an hour away and at his sister’s house, would also have publicly available Facebook profiles, all of which seems inconsistent with the family being in hiding and in fear of harm from the Maoists.
Further, the Tribunal also noted that his claim at interview, that his family would not be found because the Maoists don’t use social media, was inconsistent with his evidence at hearing that everyone uses social media. When the Tribunal put this the applicant, he said that at interview he had said to the delegate that he doesn’t know if the Maoists would go through the social media profiles of his family; he doesn’t know what they are thinking. The Tribunal considers that if, as the applicant claims, everyone in Nepal uses social media, then it would be reasonable to expect that the Maoists would use this to locate the people they have been seeking to harm for 11 years, namely his family. The Tribunal does not find the applicant’s explanation for the inconsistency to be persuasive.
Secondly, the Tribunal was concerned that he did not seem to know what the case was about, even though he claimed to have discussed this with his parents, and he had provided documents. For example, the [June] 2011 document[8] was an application made in the District Administration Office. The Subject: Request for investigation into the Citizenship Certificate of opponent. The applicants were [names] (the applicant’s father’s name) and [name]. The opponent was said to be [name] (“HRS”) [instead of RLS (the name mentioned in the applicant’s statement), although RLS is mentioned in another document suggesting that he is one of three people, along with RLS, being investigated due to the requests of the applicant’s family].
·     After a break and looking at the documents, the applicant said that the translation of the document was somewhat incorrect and what it actually states is that his father had lodged an application in court to register the land; HRS had lodged a complaint about this; the applicant’s father lodged an application to the local authority to find the whereabouts of the person who claimed the land and it was discovered that this person HRS is a fake identity. The Tribunal noted he was saying that the document stated that his family had been seeking to register the land in their names; this must mean that it was not already in their names, however this was inconsistent with the applicant’s claim that the land was already in their family’s name; he had not suggested that his father and relatives had been taking action to register the land in their names; it had been the applicant’s claim that they already owned the land and that his family had not been required to do anything in this regard. In response the applicant said that the land has been a family inheritance for a long time and he did not know that they had to register the land. The Tribunal was concerned that the applicant’s evidence about the ownership of the land changed.
·     The Tribunal put to the applicant that, if a person made a complaint against registration of the land six or more years ago, and if that person cannot be found, it did not understand how that person’s complaint could be ongoing and thus disrupting registration of the land for six years. The applicant responded that he doesn’t know how this works.
·     The applicant then said that the land has been registered in (his three family member’s) names. The Tribunal put to him that this was inconsistent with his evidence that the complaint made by HRS had not been resolved, because the point of the complaint was to stop the land from being registered in the names of the applicant’s family members. The Tribunal said this was difficult to accept, because the complaint would mean nothing, and the document he had produced would not really be relevant, because it referred to a complaint that was no longer effective. The applicant could not offer an explanation. The Tribunal asked when the land had become registered in his family’s name and he said he did not know. The Tribunal put to the applicant that it was difficult to understand how he would not know when this had occurred, because it would have been significant. The Tribunal said further if the family had managed to register the land in their name, they could have moved back in. The applicant then agreed that this would have meant that HRS lost and his family won. The Tribunal asked how then, he could say that the court proceedings were ongoing if in fact his family had won. He said the document says the court proceedings are ongoing because they cannot find HRS. The Tribunal put to the applicant that his evidence would mean that there is no need to find HRS, the family has successfully won and registered the land in their name. Further, the document is old, from 2011, so it would not necessarily represent a current state of affiars. The applicant said he did not seek to comment further. The Tribunal considers that the applicant’s changing evidence about the situation with the land undermines his credibility.
·     The Tribunal asked if the applicant was aware of the names of the people involved in the court action, and he said that he can’t recall. The Tribunal asked why not, and he said that he does not have a good memory but he has provided documents with the names. The Tribunal put to him that these people were the reason why he did not want to go back to Nepal; it does not find it persuasive that he does not know the names of the people who are persecuting his family (and himself) through these court proceedings.
[8] Translation at folio 66 of the Departmental file.
The Tribunal put to the applicant that he did not seem to know a number of important matters relevant to the reason why he could not return to Nepal, and it did not understand why he would not know this information, from discussions with his parents. He responded that the property is his grandfather’s property. The Tribunal is not persuaded by the applicant’s lack of knowledge of the matters that are significant to his claims, especially noting his education levels and eloquence. The Tribunal’s concerns in this regard were heightened, because although in his statement he claimed that the court proceedings were taking place in the District Court, when the Tribunal asked him which court, he said he thought it was a local court. The Tribunal was concerned with the inconsistencies with his evidence.
Thirdly, the Tribunal was concerned that the applicant provided inconsistent evidence about where he (and his family) lived, which it put to him pursuant to s.424AA of the Act. The applicant told the Tribunal that right up until he had left for Australia in 2006, he had lived at the family home, and it was in 2008 that his family moved to his sister’s house.
This evidence however was inconsistent with what he had told the delegate at interview, namely that all of his family members, including himself, moved together to his sister’s house (while he was still in Nepal, so prior to or in 2006) to escape the Maoists.
In response the applicant said that he told the delegate that they moved there, but not permanently; he also said that he had said in his evidence to the Tribunal, that they came and went from the family home. The Tribunal has considered the responses but does not find them persuasive. The applicant did not say in his initial evidence to the Tribunal that he had moved to his sister’s home while he still lived in Nepal; instead he said that he only lived in the family home. The Tribunal considers that if he had moved (even temporarily) to escape Maoists, he would not have confirmed that he only stayed at his family home.
· His protection visa application forms record only one address, the family home. When this was put to the applicant he said that he gave the address he was registered at. The Tribunal noted however that the form asked specifically him to specify any temporary accommodation, but he did not do so. The applicant responded that he had made a mistake. While the Tribunal notes that the form shows his sole address as the home, and although this is said to be his address until March 2006 (but he left in May 2006) he did not tell the Tribunal when asked where he lived that he had resided for the last two months at his sister’s address; nor did he provide his sister’s address in the form.
· Although his statement claimed that “because of the threat of the Maoists, we had to live out of the house on several occasions”, this was not what he told the Tribunal in his initial evidence. When his statement was referred to, he then agreed with it and said that he had been moving back and forth between his house and his sister’s house. The Tribunal put to him that he had said that the back and forth started in 2008 (when he was not in Nepal). The applicant agreed with this; he did not however explain the inconsistency in his evidence, which the Tribunal considers undermines his credibility.
While the Tribunal has considered the possibility that the applicant may have meant to say “move temporarily” when saying “move”, it is not prepared to give him the benefit of the doubt in this regard, especially as it considers that he was unable to provide an adequate explanation as to why he and his family would have returned to the house, a site of danger and conflict, if they had only moved out temporarily. The Tribunal considers that this undermines his claims, and that his inconsistent evidence indicates that the claims of moving to avoid the Maoists are not genuine.
Further, the Tribunal was concerned about the claim that there was a fear of harm from the Maoists, and that the family was forced to move to the sister’s home because of the Maoists. The delegate had placed a Facebook printout on the Departmental file: a picture of a woman, and there were discussions about wishing the applicant’s mother a happy birthday. It was dated in June (year not provided). The Tribunal put to the applicant the comments relating to that picture: “[quote deleted].” The Tribunal put to the applicant pursuant to s.424AA of the Act that this showed an intention to move back home after moving out (perhaps due to the earthquake (April 2015), or indeed for any other reason, such as renovations), indicating that the Maoists did not cause the family to fear moving back into their home.
In response the applicant said that the Facebook picture was taken “a while ago” and the comment “soon” does not mean that the family had moved back into the house. The Tribunal asked the applicant what he thought the comment meant. He replied that his brother’s friend had asked his brother a question and his brother just replied to that request “as normal”, but that this should not be taken into account. He said he did not ask his brother about this and he does not use social media very much. The Tribunal does not find this explanation to be persuasive. The Tribunal considers that the comment indicates that the family would be moving back into the family home, which undermines the applicant’s claim that the family had moved out and had been forced to stop living at home for at least nine years because of their fears of continuing risks of harm from the Maoists.
Finally, the Tribunal was concerned with the applicant’s delay in lodging his protection visa application. The Tribunal put to the applicant that in December 2008, when he had ceased studying (on his own evidence), he could have lodged a protection visa application; instead, he had pursued student visa applications/ reviews, and he had also become unlawfully present, and it was only after he had been charged with an offence that he lodged his protection visa application. The Tribunal was concerned that he may have only lodged his protection visa application as a result of having been unlawfully present and charged with an offence. The applicant responded by saying that he had not been charged with a criminal offence. The Tribunal noted that according to his protection visa application form, he had been convicted of [offence] in March 2015; he agreed. He then said that he would not say that this was the reason that he had applied for protection; instead he just went to his migration agent and said that he had a situation, and was given advice. The Tribunal put to the applicant that he could have sought such advice earlier. The Tribunal notes his claim that after he came to Australia, there continued to be violence, and his family remained at risk. In the circumstances, it was difficult to understand his delay in applying for asylum.
At another point in the hearing, when the applicant said that he had become unlawfully present in 2013, the Tribunal asked why he did not lodge a protection visa application then, and he then said that he just didn’t think properly back then; he was going through so much that he just didn’t know what to do, as he had already been through so much. The Tribunal noted that he had previously lodged six student visa applications (on his evidence), his English is very good, there had been assaults back home, and it only cost $30 to lodge; the Tribunal did not understand why he did not research or make enquiries about how he could seek protection in Australia earlier, especially as he was remaining here unlawfully. The applicant said that later he went to an agent and told him all the problems and he suggested that the applicant do a protection visa application. The Tribunal suggested that he could have sought such advice when he became unlawfully present. He said that he had separated from his de facto and he didn’t think properly; she had treated him badly. In 2012 they went their separate ways. While the Tribunal has considered this response, it does not find it persuasive, given he did not lodge his protection visa application for a further three years, in 2015.
The Tribunal was also concerned because the applicant provided inconsistent reasons for not lodging his protection visa application earlier. As noted above, he told the Tribunal that he did not know he could have lodged a protection visa application earlier, he only became aware of it when he went to see his agent/ lawyer in 2015. However, as put to the applicant at hearing, he told the delegate at interview that the reason why he did not lodge his protection visa application earlier was because he did not have the money, approximately $[amount], in order to be represented by an agent[9]. The applicant said that both reasons applied, he did not know about it and he did not have the money. The Tribunal noted that these explanations were inconsistent: if he did not know he could lodge a protection visa application, it would not have mattered if he had the money or not. The applicant said he had no further comment on the inconsistency of his explanations. The Tribunal does not find his reasoning to be persuasive and considers that his evidence and his delay in lodging a protection visa application for almost 9 years after his arrival; six and a half years after he ceased studying in December 2008; and two years after he became unlawfully present in Australia; and shortly after he had been found guilty of an offence, undermines his credibility and his claims.
[9] Delegate’s decision record provided by the applicant to the Tribunal, page 8

The Tribunal put to the applicant that it was concerned that he may have wanted to stay in Australia not to study (or escape harm) but to work. The Tribunal noted that on his own evidence he had studied only from 2006 until December 2008[10]; and that it was only in in the middle of his application for a review of the refusal of his student visa application that he had commenced another course, in 2012 (which he said he also did not complete). The Tribunal put its concern that he had not studied for three years. In response, the applicant said that he wanted to finish his course but it was not to maintain his student visa application. The Tribunal has considered this response but does not find it persuasive.
[10] As set out in his protection visa application form and discussed at hearing.
On the basis of all of the above, the Tribunal is not satisfied that the applicant is a witness of truth.
Other matters
Corroborative evidence
The applicant argued that he arrived in Australia in 2006; he would have returned home earlier if he could have, he missed family events (such as his sisters’ weddings) and his failure to return home and see his family for 11 years supports his claim that there is danger awaiting him in Nepal. The Tribunal has considered this argument but it notes that there can be a number of reasons why a person does not visit his home country; it also notes that since September 2011 his student visa had been refused and he had been either engaged in reviews/ appeals or unlawfully present or awaiting the outcome of his protection visa. The Tribunal is not prepared to accept that the applicant’s failure to visit his home supports his claims.
The applicant made an assertion during the hearing that he had been depressed at various times while in Australia; for example, this was a reason why he did not continue to study. However, when asked whether he obtained any evidence of this to provide to the education institutions, he said no. The Tribunal is not prepared to accept the applicant’s assertion that he has had a mental health condition; it does not accept that this could be a reason for his actions or inaction in Australia, nor does it accept that this could have adversely affected his ability to give evidence or present his claims.
The applicant said that the court proceedings have been going on for a long time; implying that it was the Maoists who had made them ongoing. The Tribunal put to him that if the complainant had not attended court for 6 years, it did not understand how the proceedings could be ongoing. The applicant said to the Tribunal that he left when he was [age] and he doesn’t know much about the judicial system in Nepal. The Tribunal put to him that he appears to be a smart person, it asked why he didn’t make an effort to understand the judicial system in Nepal so that he could discuss with and assist his father. He said he did not do so. The Tribunal is not satisfied that this can explain the difficulties with the applicant’s evidence.
The documents produced to the delegate: Documents provided to the delegate
As noted above, the applicant had provided to the delegate a number of documents and translations relating to the land issue. The documents can be summarised as follows:
·     [In] June 2011: document which was a request from the applicant’s relatives for HRS to be investigated as it was discovered that his citizenship certificate was generated by a computer and he is not genuine. The Tribunal discussed this document at hearing and had concerns with the applicant’s evidence relating to this document, and the current status of events.
·     [In] December 2011: document from the Ministry of Home Affairs, District Administration Office, requesting that HRS and his attorney present themselves immediately for investigation, noting the fraudulent citizenship certificate of HRS.
·     [In] February 2012: document from the Ministry of Home Affairs, District Administration Office, follow-up seeking that HRS, another person, and his attorney present themselves to the authorities.
·     [In] February 2012: document from the Ministry of Home Affairs, District Administration Office, confirming that the citizenship certificate of HRS had not been issued by their office and he has not been located although he has been searched for. His attorney has stated that she does not know HRS personally.
The Tribunal noted that the applicant had said in his evidence that it was his father who had taken court proceedings. The agent submitted that his father did not take the court proceedings; the Tribunal noted this was inconsistent with the applicant’s evidence to the Tribunal. The agent acknowledged that there was some confusion about the documents and the applicant’s evidence. The Tribunal notes however that although the applicant was provided with further time after the hearing, he did not seek to provide any clarification of the confusions.
As put to the applicant at hearing, false documents can be contained from Nepal[11]; when considering this country information as well as the concerns with the applicant’s credibility, the Tribunal is not prepared to place any weight upon those documents.
Credibility summary
[11] DFAT Report, Fraudulent Documents, paragraph 5.30: A black market exists for citizenship certificates and other official documents in Nepal and can be obtained with the appropriate contacts and financial resources.
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and that the applicant has fabricated accounts of events and claimed fears, upon which he has based his protection claims.
Findings on the applicant’s claims
Past harm for the applicant and his family while the applicant was still residing there (until 2006), ongoing harm in Nepal for his family since he left (2006 to date)
On the basis of the adverse credibility finding, the Tribunal is not prepared to accept that the applicant (or his family) suffered as described in his written materials or his oral evidence. The Tribunal is not satisfied that the claims made by the applicant are true. It does not accept that he or his family experienced any threats or harm or demands (from anyone) in Nepal, including Maoists; it does not accept that his father was assaulted or prevented from operating a business, that there have been any court proceedings or other contested actions or proceedings in relation to any land owned by the family in Nepal; nor that the applicant was sent to Australia due to fear or concern for his safety; nor that his family were requested to pay donations to the Maoists at any time; nor does it accept that there has been any adverse interest in the applicant since he has been in Australia; nor does it accept that the reason he has not returned home is due to fear or worry.
The Tribunal finds that the applicant was prepared to make false and changing claims to support a protection visa application. The Tribunal does not accept that he or his family have faced any threats or harm in Nepal or since he has been in Australia, and it does not accept that there is a real chance or real risk of the Maoists having any interest in he or his family due to their property or their finances.
The applicant’s home area, security/ political situation, Maoists, employment
Although there was a reference to the family having moved out of the family home in the Facebook post, and the applicant indicated at interview that they had moved out because of earthquake damage and because of threats, the Tribunal does not accept that moving out had anything to do with Maoists. When the Tribunal put to the applicant that the house remained empty and so it did not understand why the Maoists did not move in, the applicant did not suggest this was due to any earthquake damage. The Tribunal is not satisfied that there was any lasting damage from the earthquake on the family home, or any other reason why the applicant or his family cannot reside there. The Tribunal finds that the applicant’s family had moved out of their home but have now returned and that they continue to reside in the family home in Kathmandu, and that the applicant will return there.
The applicant claimed that all of his fears arose due to the Maoists. The Tribunal does not accept this claim, and finds that the applicant does not have any subjective fear or a real chance or real risk of any harm for any reason.
When the Tribunal put to him at hearing that it was concerned that he may not meet the relevant criteria, noting that he is educated and smart and has work experience, he said that he has been living for a long time in Australia, he has had ups and downs in life and he wants to live a normal life. He has spent his young years here and he would like to give back to the community. He doesn’t really know how things work in Nepal. The Tribunal put to the applicant that he appeared resourceful and that he would be able to adapt. The Tribunal is not satisfied that the applicant has a genuine concern of an inability to adapt.
The Tribunal has considered whether there is any objective reason for considering that the applicant faces a real chance of serious harm or a real risk of significant harm for such reasons. The Tribunal noted at hearing that, if it did not accept his claims, it would appear there was nothing in the country conditions, as set out in the DFAT Report to which the Tribunal is required to have regard, which would indicate that he would face a real chance of serious harm or real risk of significant harm in Nepal. The applicant did not provide any country information to the Tribunal (although the submissions made assertions about the country conditions) other than that contained in the delegate’s decision record which he provided to the Tribunal.
The Tribunal has considered the submissions, DFAT Report, and available country information. The Tribunal had some concerns that part of the written submissions to the Tribunal may relate to someone else, in particular as it was stated that the applicant has been a law abiding citizen during his stay in Australia (which is inconsistent with his own evidence) and it referred to violence in upcoming elections (which the applicant did not suggest was a concern). While the Tribunal accepts that there have been elections this year[12], it is not satisfied on the evidence before it that, having regard to issues of security/Maoists, the applicant faces a real chance of serious harm or a real risk of significant harm as a result of returning to Nepal and living in that country. In this regard, it notes his assertion that his family own numerous blocks of land, and that he has been educated in Nepal and Australia, that he has work experience, and, although there may be more difficulties in obtaining employment, there is employment in Nepal, and the Tribunal considered that this particular resourceful applicant, would be able to obtain employment[13].
[12]
[13] DFAT Report: 2.25 The 2015 Constitution provides for the freedom to practice any occupation and the right to employment… 2.26 Labour laws provide for the freedom to bargain collectively, and unions generally operate without state interference. Workers in a broad range of ‘essential’ industries are not permitted to stage strikes, while 60 per cent of a union’s membership must vote in favour of a strike in order for it to be considered legal in non-essential industries. ..,…[although] (2.25) DFAT assesses that economic migration acts as a significant driver for many millions of Nepalis to leave the country every year seeking better opportunities than those found in Nepal.
The Tribunal is not satisfied that the applicant came to Australia to escape any harm or adverse interest in Nepal. Nor does it accept that this is what he faces a real chance or real risk of upon return. The Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm. It does not accept that he would require access to state protection from any harm nor that he would be denied it.
The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past harm or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him, or on his behalf.
Complementary protection
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) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal does not accept that the applicant, or his family, have experienced any of the past harm or threats or adverse interest as claimed.
The Tribunal has accepted that the applicant is an educated male of [age], with qualifications from both Nepal and Australia, and work experience in Australia. The Tribunal finds that he has a family and home to return to in Kathmandu. The Tribunal has found that otherwise, the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm.
The Tribunal is not satisfied that this applicant faces a real risk of experiencing significant harm for any reason (including due to Maoists, due to earthquake damage, in relation to employment/business, land or family assets, elections, general violence, or any other reason). It also is not satisfied that his family faces nay harm claimed.
On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Nepal, there is a real risk that he will suffer significant harm for the purposes of 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).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Christine Cody
Member

ANNEXURE A - 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, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself 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).
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 below.
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 below.
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.
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 230

9 January 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction

Appeal