1601748 (Refugee)

1601748 (Refugee) [2017] AATA 2980 (22 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601748
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Christine Cody
DATE:22 December 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 December 2017 at 4:55pm
CATCHWORDS
Refugee – Protection visa – Nepal – Political – Harm from Maoists – Consequences of 2015 earthquake – Inconsistent and changing claims and evidence – Delay in protection application – Credibility
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a), 5H(1)(b), 5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36(2A) and 2(B), 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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
SUMMARY AND BACKGROUND

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] May 2015 and the delegate of the Minister for Immigration refused to grant the applicant a protection visa [in] February 2016.
This is an application for review of that decision, and the relevant law is set out in Annexure A. 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).
The applicant produced to the Department documents including his protection visa application forms, a copy of the identity pages of his current and previous passports, and supporting documents. The applicant attended an interview [in] September 2015. The Tribunal has listened to a recording of the interview.
The applicant was represented by his registered migration agent in relation to his application for review before the Tribunal. The applicant provided to the Tribunal a copy of the delegate’s decision record, which sets out some details of the applicant’s evidence at interview, country information, and the delegate’s reasons for refusing the application. All references to the applicant’s evidence at the delegate’s interview are set out in the delegate’s decision record as provided to the Tribunal by the applicant, unless otherwise specified.
The Tribunal wrote to the applicant, stating that it was unable to make a favourable decision based on the material before it, and inviting the applicant to attend a hearing. The applicant provided submissions to the Tribunal. The applicant appeared before the Tribunal on 17 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The Tribunal explained that it was not bound to follow the findings made by the delegate and that it would make its own findings on all matters.
The Tribunal put to the applicant its concerns about the credibility of his claims, discussed country information including 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
According to the applicant’s protection visa application forms, his background and claims can be summarised as follows:
Background
·     The applicant was born in [village], Sindhupal Chok, Nepal, in [year]. He speaks, reads and writes in English and Nepali. His religion is Hindu.
·     His family members are his parents, who reside in Nepal, and his sister. He is in contact with his relatives over the phone.
·     He studied up to the level of his Higher Secondary education in Nepal ([year]). He did not declare any work undertaken in Nepal.
·     [In] 2007 his passport was issued.
·     He left Nepal [in] July 2008, legally, and arrived in Australia [in] July 2008, holding a student visa granted [in] June 2008; valid until [date] September 2010. His (student) visa application was refused [in] August 2013. His most recent visa was a bridging visa granted [in] May 2015.
·     Since he has been in Australia he returned to Nepal, from [date] February 2011 until [date] March 2011, in order to attend the wedding reception of his “[relative]”.
·     He studied in Australia.
·     He stated he was currently unemployed; he has previously been working in Australia however as [occupations].
Claims
·     The applicant left Nepal to achieve an international degree. Although in his country there are schools and colleges and other educational institutions, because of political issues, and insecurity, it is hard to get opportunities for his bright future.
·     If he returns to his country, he would suffer difficulties because on 25 April 2015, there was an earthquake, many people died, there is a high risk of diseases, as families are safe but their houses in [location] have collapsed, and in that area, 90% is destroyed. There is scarcity of food, water, treatment, shelter, electricity, and although people can still buy groceries, the stock is very limited and prices have gone up. There continue to be after-shocks. Due to the corrupted government, victims are still awaiting rescue and donated funds. If he returns, it will be hard for his parents to sustain. [The applicant provided to the Department pictures of “my home” apparently destroyed by the earthquake]
·     When he was in Nepal, there was chaos because of the war between the Maoists and governments. There was kidnapping, executions, planting of bombs, shootings, which happened all the time. As they are a middle-class family, they could not afford other alternatives and the Maoist Army used to ask for protection money.
·     They tried to complain to the village development committee, however the committee said that everyone was facing the same problems. Accordingly, they moved to the city and the applicant continued his studies there. His father went into business with his friends and rented a two-bedroom place. Although they were in the city, it was still not safe, there were phone calls from Maoists every month. All districts were affected by the Maoists.
·     As a result of the earthquake he does not wish to return until his country is rebuilt. In addition, he was studying a [course] which he left last semester.
·     The current situation means that it is hard for the authorities to provide protection. There is no way that one can relocate within Nepal because people are living in fear with the after-shocks and spreading of diseases.
·     He did not intend to reside illegally in Australia; instead it was because of fear, financial problems, and a lack of good consultants.
The interview and delegate’s decision record[1]
[1] 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] May 2008: applied for student Visa (TU-572)
·     [in] June 2008: Visa (TU-572) granted
·     [in] July 2008: arrive Australia
·     [in] September 2008: apply for TU-573 visa
·     [in] November 2010: Visa TU-573 granted
·     [in] May 2013: applied for further TU-573 visa
·     [in] June 2013: TU-573 visa refused
·     25 June 2013: MRT Merits review commenced
·     15 August 2013: MRT decision: application for review lodged out of time.
·     [in] September 2013: bridging visa C ceased
·     [in] May 2015: protection visa application lodged
The decision record referred to the applicant’s evidence at interview as follows:
·     The family’s home in [location] was destroyed in the earthquake.
·     His family are currently renting in Kathmandu.
·     When he attended school he was escorted by relatives who were afraid Maoists would target him; his family had feared for his safety. During the civil war, his family were targeted for forced political donations. The applicant was not of the opinion that his family had been extorted in recent times.
·     His father has not been contacted by Maoists since the applicant was at school in Nepal (2007).
·     His father is not currently working but is supporting himself and other relatives through proceeds of property sales.
·     The applicant fears that business conditions in Nepal are poor and he would not be able to own and run a business if he returns to Nepal. Further, he fears being extorted if he was to run a business in Nepal.
The delegate accepted that the applicant was originally from [location], Nepal; that he and his family may have feared Maoists during the Civil War; that his family home was destroyed in the 2015 earthquake; that his family rent in Kathmandu and are supported by his father from the sale proceeds of land; that the applicant seeks to open a business if he returns to Nepal.
The delegate did not however accept that the applicant had an acceptable reason for delaying lodging his application, nor that he will be extorted by Maoists upon return.
Certificate on Departmental file
The Tribunal notes that there was a s.438(1) certificate placed on some pages[2] of the Departmental file by the Department. It is appropriate to address the validity of the s 438(1) certificate, which requires that the reason specified in the certificate for why disclosing matters contained in a document or information would be contrary to the public interest must be capable of forming “the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence”.
[2] Folios 48- 51, 68-86, 97-98.
Concerning folios 48-51, and 97-98, the only reason stated in the certificate is that the folios “… contain information relating to an internal working document and business affairs”. That is neither a necessary nor a sufficient basis for public interest immunity. At best, it is only a reason that could form part of the basis for a claim, not the basis, and does not communicate to the Tribunal any reason which meets the description in s.438(1). Since the certificate is not valid it does not trigger the operation of ss 438(3)(a) and 438(3)(b) in relation to how the documents or information can be dealt with and the Tribunal has proceeded to treat the documents in the usual way as if there was no certificate.
As discussed with the applicant, some of the documents (Folios 48- 51) relate to Departmental notes in relation to the grant of his offshore student visa application; these show that he received financial support from his family to come here, which is consistent with his claims to the Tribunal, and do not have an effect on his case. The other documents (Folios 97-98) contain notes about the certificate and internal documents and the Tribunal does not consider them relevant to his case. It noted that there was a reference to a name which the Tribunal would agree would be irrelevant and would be redacted.
Concerning the remaining documents, these are pages printed from the applicant’s Facebook account, which were discussed with the applicant, and the Tribunal considers are not relevant other than they indicate, as discussed with the applicant, that he had done some [Work 1] in Australia. The Tribunal notes that the certificate states that a particular name used should be subject to a certificate “because it relates to internal deliberations of the Department”. As put to the applicant at hearing, this does not appear to be valid, however the Tribunal would agree that the name would be irrelevant to him and would be redacted.
The Tribunal
The applicant provided a copy of the delegate’s decision record to the Tribunal.
Thereafter, by way of letter dated 10 November 2017, the applicant made submissions to the Tribunal through his agent. It was submitted that:
·     The applicant had left Nepal in order to save his life from the Maoists.
·     When he returned in 2010 to Nepal he was threatened for his life by Maoists because the family could not provide the required donations to Maoists party.
·     It was submitted that the applicant belonged to a particular social group of “business owners victimised by the Maoists in Nepal” on the grounds that the applicant and his family were involved in a [certain] business, and they became victims by the Maoists asking huge donations. It was claimed that he and his family members had to hide in order to save their lives.
·     The Maoists are still in search of him in relation to disputes of his family land. He will thus not be safe in his home country and fears persecution or possible death.
·     It was also submitted that the land owned by his family is located in prime location and has a very good commercial value, which is “the only reason for Maoists to be involved in the civil matter”. The Maoists are upset with his family members for not transferring the land to the person they demanded.
·     It was submitted that during his time in Australia he has been a law abiding citizen (the Tribunal is not prepared to accept this, given the applicant’s agreement that he remained in Australia while unlawfully present for almost two years).
·     He has a fear that because a high level Maoist leader was recently arrested by the authorities in Nepal, the elections may become violent.
·     As the family home was destroyed in [location], it will be hard for his parents to support him.
·     Further, as he has been living in Australia for some time, he fears that Maoists may think he has earned a lot of money so he may be targeted.
At the Tribunal hearing, the applicant said that his protection visa application form is true and correct, he completed it himself, and it contained no errors, and nothing was missing.
He told the Tribunal that he became unlawfully present when his student visa application was rejected [in] September 2013. He said he continued to study, and to work, even though unlawfully present. His work was at a [workplace]; he said he also used to be involved in [Work 1], supporting different Nepali programs. His evidence about these [Work 1] was somewhat vague; he firstly suggested that he would [perform Work 1] about once per week, but he was paid only if what he organised was successful, and this was just once per year. However when the Tribunal asked further questions he then said that he did [Work 1] for 4-5 years, and he got paid 6-7 times; each year thye would have 2-3 events (the Tribunal notes that the delegate had located Facebook pages showing the applicant being involved in [Work 1]).
His sister resides in [country], working in [a certain] company. She returned to Nepal in 2016 when their father was sick, staying one week in [suburb]. She sends money back to the family.
He discussed the source of funds for his studies. The Tribunal noted that it cost a lot of money to study in Australia and asked the applicant what his total costs were. He said $[amount] to study his bachelor degree, plus another two courses [cost] around $[amount]. He said that $[amount] was just the cost of the courses only. His family contributed to the costs, but so did he, from working 20 hours per week, and from the use of credit cards and assistance from friends. He told the Tribunal he last studied in Australia in 2014.
The applicant said he was born in [suburb], an area in Kathmandu where he lived from the time of his birth until he came to Australia in 2008. He lived there in his grandfather’s brother’s home. When asked whether he lived anywhere else, he said that he would travel to the ancestral village [in] the school holidays and for festivals. When there, they stayed at another grandfather’s house. He didn’t live anywhere else while in Nepal other than these two homes. After the applicant came to Australia, his parents continued living in [suburb] and still visited the village. He said that after the earthquake, his parents have not been going to the village; they just stayed in [suburb].
His father used to work in [certain work], however in 2013 he stopped work and is not working. When asked how he survived, he said that his grandfather used to have land, he passed away in 2009 and the applicant’s father got the land. His father then sold the land, he used the sale proceeds for daily living expenses and then he provided the Maoists with donations. The Tribunal asked when his father had to provide the donations and he said that he could not recall the exact date. He said he had a conversation with his father in 2011/ 2012 when he was told this. When the Tribunal asked how much his father gave to the Maoists as a donation, he responded that his father did not tell him clearly the amount. The Tribunal asked for an approximate idea of how much, and he said around [amount] lak (the equivalent of around $[amount]). The Tribunal asked if that meant his father was left with no money and the applicant responded yes he had to pay it all to the Maoists.
The Tribunal asked the applicant if he mentioned in his application form that his father had paid $[amount] to Maoists and he said no. He said that when he visited the Immigration Department they gave him the option to apply for a protection visa and as he completed the form by himself he got no advice from a migration agent, so some things are missing from his application form. The Tribunal put to the applicant that this was inconsistent with his earlier evidence, that there was nothing missing from his application. He then said that he had been referring to his application to the Tribunal; the Tribunal noted it had asked him about his forms submitted to the Department.
The applicant also claimed that even after the civil war, in Kathmandu the Maoists were still demanding donations. He said however that, in his protection visa application form, he only mentioned that he could not go back because of the earthquake. The Tribunal noted that he had been claiming protection in his form; the form gives guidance, such as asking questions about past harm and fears and why he came to Australia and what he fears; it does not understand his reasoning when he tells the Tribunal he did not mention these matters in his protection visa application form. The applicant said that he did not know that he had to mention Maoists or threats; he was blank about that. He said that he was aware, before signing his protection visa application, that he and his family were being threatened by the Maoists; however he did not mention this. He said that when he had been attending school, the Maoists had called his father and said they are going to kidnap him; they were monitoring him and all his activities and because of this he came to Australia. He said he found this out from his father in about 2011/ 2012 when discussing about land issues with his father; his father then explained everything clearly and he used to tell him about the kidnap threats. The Tribunal put to him that it did not then understand why he would not have written about this in his protection visa application; he said that he did not know what to write; he did not know that he should write about past difficulties even though he read the information. The Tribunal put to the applicant that he had handwritten over two pages of attachments; it is thus hard to understand that he did not know what he was doing. He then said that he only wrote about the earthquake. The Tribunal later put to him that this was not correct, he had mentioned other matters.

The applicant said to the Tribunal that his only fear of returning was of the Maoists. When asked if there was anything else which caused concern, he said no other fear except for the Maoists.
FINDINGS AND REASONS
Country of reference
The applicant produced his passport to the Tribunal. The Tribunal finds 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 lodging his protection visa application. The Tribunal’s concerns are set out below.
Firstly, the Tribunal was concerned that the applicant gave inconsistent and changing claims and evidence throughout the process.
Changing dates as to the contacts from Maoists: In this regard, as put to the applicant at hearing, he told the delegate at interview [in] September 2015 that his father had not contacted by Maoists since he was in school in Nepal (in 2007)[3]. The Tribunal put to the applicant that this was inconsistent with his evidence at hearing, namely that there had been continuous threats from the Maoists, and demands for donations from at least 2007 until today. In response, the applicant then that the threats didn’t happen “that continuously” after 2007; they did not ask regularly, but only on a few occasions.
[3] Delegate’s decision record
The Tribunal was concerned that not only was the applicant changing his evidence in response to the Tribunal’s concerns about his evidence to the delegate, but that his minimisation of the demands of the Maoists after 2007 was inconsistent with other evidence he gave to the Tribunal. In this regard, he claimed that the Maoists sought donations in 2009 including that his father paid a significant sum of $[amount] representing all his remaining money from the sale of land. The Tribunal considers that the applicant’s assertion to the delegate that there was no contact with the Maoists since 2007 is significantly contradicted by his evidence at hearing, which undermines his claims and credibility.
Changing addresses to avoid the Maoists, and claims that his home in Nepal had been destroyed: The Tribunal put to the applicant that according to his protection visa application form, in order to avoid the Maoists, he had had to move to the city to continue his studies; but this was inconsistent with his earlier evidence to the Tribunal that he had always lived in [suburb], only returning to the village for vacations and festivals. The applicant continued to suggest that he did not know what to write in his protection visa application form; the Tribunal does not find this to be persuasive. The Tribunal considers that the applicant’s inconsistent evidence about whether or not he had to move to avoid the Maoists undermines his assertion in his protection visa application in that regard. The Tribunal considers that if he did have to move to the city to avoid the Maoists, he would not have told the Tribunal that he always lived in [suburb].
The Tribunal had further concerns about the applicant’s evidence about where he lived. The Tribunal noted that, according to his evidence, it was the house in the village which had been adversely affected by earthquake (not habitable), but that the house in [suburb] just had a few cracks, and for a few months they had moved into another uncles house, paid cheap rent, and waited for renovations to the house to occur and then everyone had moved back into that house. The Tribunal put to the applicant that in the circumstances, it did not understand why he claimed that he could not return to his home in Kathmandu ([suburb]), noting that even while the [suburb] house was being renovated, his family still had somewhere to live. The applicant did not address the Tribunal’s concerns, instead he said that his family couldn’t even afford the cheap rent so they had to move back into the home in [suburb]. The Tribunal notes that the applicant provided to the delegate photographs of the building apparently destroyed by the earthquake which he called “my home”. He claimed in his protection visa application form that he could not return to Nepal as a result of the earthquake. The delegate accepted his assertion[4] that his family home was destroyed in the earthquake. This however was inconsistent with the applicant’s evidence to the Tribunal. The Tribunal considers that this undermines his credibility and his claims.
[4] refer to delegates decision record
Secondly, the Tribunal was concerned about the applicant’s inconsistent, changing, and difficult to accept evidence, in relation to a claimed threat to his life in 2011 when he returned to Nepal for his “[relative]’s” wedding reception:
·     According to the agent’s submissions to the Tribunal, his life had been threatened while he was in Nepal because his family was not able to provide donations to the Maoists party. However, he said to the Tribunal that he was safe because he would not go to pay the donations to the Maoists, instead his father and brother would go to pay the donations to the Maoists, they would not let the applicant got to pay the donations to the Maoists. The Tribunal put to him that this was inconsistent with the agent’s submissions, which he had said were true and correct, as the submissions said that the donations were not being paid, and this is why the applicant’s life was threatened. In response the applicant said he only knew about the threats to his life after he came back to Australia. The Tribunal does not consider this to be an explanation for the inconsistent evidence as to whether the donations were or were not paid.
·     The Tribunal put to the applicant that it was difficult to accept that, if he had been sent to Australia in 2008 to save him from being kidnapped by the Maoists, his parents would allow him to return to Nepal for a wedding, given that his life remained at risk because the Maoists were still making threats/demanding donations. He then said that he didn’t tell his parents he was coming back, it was a surprise for them. The Tribunal put to him that if it was a surprise, given the risks to him, the Tribunal considers his parents would put him on a plane straight back to Australia. He said that he wanted to spend time in Nepal and if he knew he was in danger, he could have come back on the next flight to Australia. The Tribunal asked whether he was threatened when he was there, and he said no as the Maoists did not know he was there. The Tribunal put to him that the agent’s submissions indicated that when he was in Nepal he was threatened with his life by the Maoists. In response, the applicant said he only found out about the threats from the Maoists after he had returned to Australia. The applicant’s claim that he had no idea about the danger from the Maoists when he returned in 2011 was however inconsistent with his claim that when he arrived, his parents took him to Kathmandu and wouldn’t allow him to go to the village in case the Maoists became aware of his presence. The Tribunal does not find the applicant’s evidence to be persuasive, and considers that he changes his evidence to respond to the Tribunal’s concerns.
·     The Tribunal asked the applicant whether he had mentioned in his protection visa application form the specific threat to his life from the Maoists when he returned to Nepal for the wedding. It noted the applicant’s earlier assertion at hearing that he had failed to mention the Maoists in his protection visa application form; and that all he had mentioned in that form was the situation arising from the earthquake. The Tribunal put to the applicant that it was difficult to accept that he wouldn’t include a specific threat to his life from the Maoists when he returned to Nepal in his form. He said when he read the questions in the application form he only mentioned the earthquake; he didn’t study the information in the form properly, and if he had help, he could have mentioned all of this. The Tribunal put to the applicant that he appeared to be an educated person who had almost finished university degree in Australia, prior to completing his protection visa application form; it would think that he could have understood the questions in the protection visa application form (for example, why did you leave Nepal? //What you think will happen to you if you return to Nepal? //Did you experience harm in Nepal?). The applicant repeated that he did not read the information properly nor understand it; the Tribunal is not prepared to accept this assertion. However, a more significant concern arose from this evidence, because, as put to the applicant, he had mentioned, on a general basis, in his protection visa application form, chaos from the Maoists that had occurred in Nepal. The Tribunal noted that he had made references to the past general behaviour of Maoists during the war (which finished in 2006), and he mentioned generally there were kidnappings, bombs, shooting, but no reference to any kidnap attempts or fears relating to the applicant specifically. He had also mentioned in the application form approaching the village committee, and moving to avoid Maoists. The Tribunal put to him that it did not understand why he now claims that he didn’t even mention the Maoists in his protection visa application form. Further, as he did mention the Maoists in his form, it did not understand why he did not then include them as a reason why he could not return in the future to Nepal; why he didn’t mention that he had to leave because of the Maoists, and that they wanted to harm him when he went back in 2011. In response he said that when he went to Immigration, they let him fill in the protection visa application form, if they had asked him more, he could have put it in. The Tribunal does not find this to be persuasive, and considers that his evidence about what was or wasn’t included in his protection visa application form, and the reasons for this, undermines his claims and credibility.
·     Further, when the Tribunal asked the applicant if he had mentioned this to the delegate at interview, he avoided the question, saying that at the interview, there was no interpreter and he didn’t understand the questions, even though he answered them, and he couldn’t recall the dates, and this is why he requested an interpreter for the Tribunal hearing. The Tribunal repeated its question, and the applicant then said he had not mentioned this to the delegate at interview. While the Tribunal accepts that the applicant gave it evidence in English at the interview, it is not prepared to accept his assertion as to why he did not mention the specific threat in 2011 when he returned to Nepal, especially noting he did not also mention it in his protection visa application form.
The applicant’s failure to mention this claim before the delegate made a decision, is not the only claim the applicant failed to mention. The Tribunal put to the applicant that it was concerned that a claim had been made in the agent’s letter to the Tribunal about disputes in relation to family land. When the Tribunal then asked if there were any disputes about family land, he responded that in the name of donations, Maoists are talking about capturing land in Kathmandu and establishing an office there (this was sometime between 2011 and 2013).
The applicant said to the Tribunal that he did not mention these matters when his matter was for consideration before the Department. The Tribunal discussed the operation of s.423A of the Act; saying it would think that the applicant would have mentioned these claims before the primary decision had been made. The Tribunal noted that his English is good, and he had almost completed his degree. He then responded that he could not explain it clearly or openly during the delegate’s interview; he only talked about the earthquake and he only spoke a few things about the Maoists in the interview.
The Tribunal does not find the applicant’s explanations as to why he failed to mention these matters when his claim was being considered by the Department to be persuasive. The Tribunal is therefore satisfied that the applicant does not have a reasonable explanation as to why his claim to have been subjected to threats when he was back in Nepal, and that his family’s land is subject to disputes/acquisitions by Maoists was not raised before the primary decision was made. Therefore the Tribunal draws an adverse inference about the credibility of these new claims.
Even if it did not, however, draw an adverse inference by operation of s.423A of the Act, the Tribunal would however have drawn an adverse inference as to the credibility of these claims because the applicant only made these claims after the delegate had rejected his protection visa application, and not previously, despite having the opportunity to do so. The Tribunal is not satisfied that there is any reason (including that he was not represented, given he presented over two pages of claims in English in his protection visa application form) for the applicant to have not made these claims at an early opportunity, and considers that his failure to do so undermines his credibility and his claims.
Finally, the Tribunal was concerned with the applicant’s delay in lodging his protection visa application. As set out in the delegate’s decision record, his bridging visa in association with his merits review ceased [in] September 2013; however he only lodged his protection visa application [in] May 2015. He claimed that he did not intend to reside illegally, this occurred because of fear, financial problems, and poor immigration advice. The Tribunal noted his evidence that he had already had a conversation with his father in 2011/2012; thus, it put that he was already aware of the danger he faced from the Maoists. In the circumstances, the Tribunal said it did not understand why he did not lodge his protection visa application earlier. His initial response related to the period before he was unlawfully present; the Tribunal again directed his attention to the period of almost two years he spent unlawfully present. He said that he had no advice from anyone and he wanted to apply for a further student visa; he thought this would be the solution; he was thinking about this, and then the immigration officers approached him at home in March 2015. He then claimed that he then found out he was staying illegally and he asked whether he could apply for visa. The Tribunal put to him that he could have spent this time making enquiries/ researching how he could be protected in Australia before he was discovered unlawfully present. He then blamed other people (friends, he did not trust agents). The Tribunal is not prepared to accept his explanations for his delay. The Tribunal does not accept the suggestion that he was not aware he was unlawfully present; because he earlier told the Tribunal, when it asked how he managed to keep working at the [workplace] when unlawfully present, that he just did not tell his employer that his work rights had changed. Further, the Tribunal considers that the evidence indicates that the applicant is intelligent, understands English, and was aware that after losing his student visa MRT review application that he would become (and did become) unlawfully present. The Tribunal considers that if he considered he genuinely faced harm from Maoists in Nepal, he would have made enquiries, including researching online/ consulting the Department’s website, in order to see how he could be safe, lawfully, in Australia. The Tribunal considers the evidence indicates that he was prepared to continue studying and working while unlawfully present, and not claiming protection earlier, because he did not have any genuine fear of harm.
On the basis of all of the above, the Tribunal is not satisfied that the applicant is a witness of truth.
Other matters
It was submitted by the agent in the prehearing submissions, and the applicant at hearing, that, the applicant has not returned to his home country since 2011, which it was suggested was evidence of his fear of being persecuted by the Maoists. However, as put to the applicant at hearing, a reason for him not to return was because, he was unlawfully present from 2013, and had a protection visa application pending from 2015. The Tribunal is not prepared to accept that this corroborates the applicant’s claims.
Credibility summary
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
The applicant’s home area
As noted above, the applicant had provided photographs of a destroyed home that he called his home, but he then told the Tribunal that this was the ancestral home in the village that he used to visit on holidays. The Tribunal is prepared to accept that the village home was adversely affected by the earthquake in 2015. The Tribunal has such concerns about the applicant’s credibility that it is not prepared to accept that the home has not been rebuilt. However, as put to the applicant, even if the village home had been destroyed and not rebuilt, while this would be very upsetting, it was not his home; it was where he spent vacations, so it did not appear that he faces serious or significant harm for such reason. Further, his evidence was that there had been cracks in the home in [suburb]; his family had moved out for a short time after the earthquake and had rented premises, but after several months they had moved back in and they remained there. The Tribunal put to the applicant that he could move back and live with his family in the family home in [suburb], and the Tribunal so finds. It is not prepared to accept that the applicant faces a real chance of serious harm or a real risk of significant harm as a result of the earthquake which occurred over two years ago.
In this regard the Tribunal notes that the applicant also produced to the delegate an article suggesting that there had been some corruption and misappropriation of earthquake relief funds, and while the Tribunal accepts that such behaviour can occur, the applicant made no suggestion to the Tribunal that there was any personal connection to the applicant and his family in this regard. The Tribunal is not satisfied that the applicant or his family faced or face a real chance or real risk of corruption after the earthquake.

The applicant claimed in his protection visa application form that shortly after the earthquake there were many difficulties: houses collapsed, high risk diseases, country faces scarcity of resources, corrupt government. While the Tribunal accepts that there were difficulties after the earthquake, the Tribunal is not satisfied that the applicant now or in the reasonably foreseeable future faces a real chance of serious harm or a real risk of significant harm as a result of country conditions after the earthquake, including any risk of disease.
Past harm for the applicant and his family while the applicant was still residing there (until 2008), ongoing harm in Nepal for his family since he left (2008 to date, apart from the earthquake)
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 (from anyone) in Nepal, including Maoists; it does not accept that there were kidnapping threats towards the applicant, threats of death, nor that the applicant was sent to Australia due to fear for his life, nor that his family were business owners who became victims of the Maoists in the past or that they paid or were requested to pay donations to the Maoists at any time, nor does it accept that the applicant had any difficulties when he returned home in 2011 for his [relative]’s wedding. It does not accept any of the claims flowing from these claims, including that he or his family sought or had any need to obtain village/state protection, nor that the family relocated to the city due to threats from the Maoists.
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 land or their finances.
Security, political situation, supplies, Maoists, business, employment, education
The Tribunal noted that, in 2015, the applicant had produced to the delegate articles relating to protests relating to the Constitution in 2015, including the blockage of Indian supplies by protesters. The Tribunal noted that the civil war had ended in 2006, the Maoists had subsequently been involved in government, there had been tensions in relation to the proposed constitution, but that in 2015 the new Constitution had been approved and the tensions were resolved[5].
[5] See Annexure B, DFAT Report extracts.
At the hearing the applicant said he was worried about the upcoming election issues and Maoists asking for donations, and there had been murderers. The Tribunal asked how this would have an effect on him and he said he is referring to the sort of matters to let the Tribunal know that the Maoists are active again, and will again ask for donations. The Tribunal put to him that it did not appear from the country information that he would face a real chance of serious harm or real risk of significant harm by being asked for donations/land/contributions in Kathmandu from the Maoists nor in relation to the upcoming elections or political situation. The Tribunal also noted that the law relating to the refugee definition and complementary protection did not cover situations of general violence for example as a result of elections; however the Tribunal does not accept in any event that he faces a real chance or a real risk of harm due to general violence.
The Tribunal considered that the applicant was prepared to refer to any negative aspect of Nepal and its history (and future) and to make a claim, even if he had no subjective fear of such events and although he considered that there was in reality no prospect of such events occurring to him. The Tribunal does not accept that the applicant genuinely believes: he will not be able to re-establish himself in Nepal because he has been in Australia for 9 years; that he will be viewed as a failure having spent 9 years in Australia and then returning to Nepal; that he has not connections in Nepal and that he will not be able to start a business or find a job; that he will not have sufficient opportunities, that if he started a business he would be targeted by Maoists and criminals for extortion, that he and his family would be targeted by Maoists, that he will be harmed through corruption, that he will be imputed as wealthy for having been in Australia, that he faces harm because of the 2017 elections. The Tribunal finds that the applicant does not have any subjective fear or a real chance or real risk of any harm for the reasons claimed.
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 Tribunal notes that other than what the applicant provided to the delegate in 2015, he has not produced current country information to support these claims; and the situation at the time of the earthquakes is different to the current situation. He did provide to the Tribunal the delegate’s decision record which contains country information. The Tribunal has considered the DFAT Report, the country information provided by the applicant previously, the delegate’s decision record, and while it accepts that there have been elections this year[6], as put to the applicant, it is not satisfied on the evidence before it that, having regard to issues of security, 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.
[6]
The Tribunal is not satisfied that the evidence supports his assertion that he will not be able to get a job without connections (and as put to the applicant, he does have connections in Nepal). Further, as discussed with the applicant, although he claims that he will not be able to get opportunities for his bright future, this did not appear to amount to serious or significant harm, and the Tribunal is not satisfied that this is a genuine concern of the applicant. The Tribunal accepts that living conditions and opportunities may not be the same as Australia, and there may be corruption, however as put to the applicant it considers that he is a very resourceful and intelligent person who claims to have almost completed a [tertiary course]; he has education and 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[7]. The Tribunal is also not prepared to accept his assertion that his family would not be able to support him; it considers it likely that they would be able to assist him while he was applying for work, and that he would live with them again. He also claimed that he would want to open a business but that he would be extorted by Maoists and criminals; the Tribunal suggested that this appeared speculative. In this regard, the Tribunal noted that when the delegate referred to the applicant possibly seeking to open a business (and while not accepting the claims that his parents would not be able to provide him with sufficient funds or that the business environment may be difficult), country information in the decision record (provided to the Tribunal by the applicant) indicated that incidents of extortion have been on the decline since 2010-2011 and country information indicates the authorities in Nepal have become increasingly willing and able to pursue entities who engage in criminal activities particularly in Kathmandu; multiple reports in Nepalese newspapers indicate that police have taken action against those who commit the crime of extortion and the delegate was not satisfied that the applicant would be extorted for owning a business in Nepal and further that the authorities in Nepal would not assist him should this occur[8]. Further, the Tribunal noted the reference in the delegate’s decision record provided to the Tribunal by the applicant noting that Nepal has a functioning police force and judiciary and that country information indicates that in urban areas, such as where the applicant is from, generally have more coverage and access to policing; further, perceptions surrounding the effectiveness of law enforcement are improving[9]. The Tribunal is not satisfied, on the basis of the adverse credibility finding, that the applicant seeks to open a business in Nepal. However, even if he did, on the available evidence the Tribunal is not satisfied that this applicant faces a real chance or a real risk of: suffering serious or significant harm in being extorted, nor, a need of police or state protection (for reasons of business nor any claim of imputed wealth from his presence in Australia).
[7] 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.
[8] Page 8 and 9, delegate’s decision record, reference to footnotes 21-25
[9] Page 8, delegate’s decision record, reference to footnotes 16 and 17.
The applicant claimed to the delegate that he would like to study more in Australia and thus delay his return home to Nepal. The Tribunal does not accept that this is the applicant’s wish, but has found instead that he just wishes to remain in Australia and will provide any possible reason for doing so. The Tribunal notes however that the applicant did study in Nepal, and the DFAT Report states that the government does not restrict academic freedom (paragraph 2.24). It does not accept that the political situation or any other matter would prevent him from studying if he wished to do so.
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 [suburb], 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 as a returnee to Nepal, due to the earthquake or any consequences thereof, in relation to employment/business, extortion, imputed wealth, land or family assets, Maoists, elections, general violence, or any other reason).
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 societal discrimination 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.
…
ANNEXURE B – EXTRACTS FROM THE DFAT REPORT

2.2 In 1996 the Unified Communist Party of Nepal (Maoist) (UCPN-M) began a nationwide violent insurgency against the government. A ten-year civil war ensued during which at least 13,000 people were killed and over 1,300 disappeared before a peace accord was struck in 2006 following an agreement between the Maoists and an alliance of seven Nepali political parties.

2.3 In February 2005 the then-king assumed absolute power in a coup supported by the army. A people’s movement in April 2006 and a joint alliance of democratic parties and the Maoists forced the king to relinquish direct rule. Parliament subsequently agreed to abolish monarchical rule, and Nepal became a republic in 2008 with the election of the first Constituent Assembly. The Maoists formed the first government, which proved to be short-lived, resigning in May 2009. A coalition government was then formed until it, too, resigned in July 2010. In September 2011, Dr Baburam Bhattaerai of the UCPN-M party formed government with the Madhesi alliance from the Terai (a region in Nepal’s south). Political stalemate and questions concerning Nepal’s federalist structure and how to accommodate ethnic and linguistic minorities led to the dissolution of the first Assembly in 2012.

2.4 After repeated delays, elections for the second Constituent Assembly were held in November 2013. International observers described the elections as free and fair, with a voter turnout of 78 per cent despite threats of violence by a break-away Maoist group. The Nepali Congress (NC) and the Communist Party of Nepal (Unified Marxist-Leninist) or CPN (UML) were elected to govern Nepal under a coalition agreement that gave them an almost two-thirds majority in the Assembly. The UCPN-M, which had led the insurgency and had dominated the 2008 election, managed to secure only 80 of the 575 directly elected seats.

2.5 An 85 per cent majority vote by Constituent Assembly lawmakers on 16 September 2015 approved a new Constitution which was subsequently promulgated on 20 September 2015. The new Constitution was agreed upon after considerable negotiation and delays. The political stalemate surrounding the development of a new constitution had ended in June 2015 when the four major political parties agreed to proceed with negotiations, focusing on the key points of federalism, the form of government and elections, and the judiciary. The political breakthrough followed a 7.9 magnitude earthquake that struck Nepal on 25 April 2015 (and subsequent aftershocks), which killed an estimated 8,891 people and injured 22,302. Under the new Constitution, Khadga Prasad Oli of the CPN-UML was elected Prime Minister in October 2015.

SOME ADDITIONAL COUNTRY INFORMATION CITED IN THE DELEGATE’S DECISION RECORD PROVIDED TO THE TRIBUNAL BY THE APPLICANT

Since the conflict was bought to resolution in 2006, Nepal has been in transition, and has slowly made progress. The Maoists have been brought into the political mainstream however it is recognised that on both sides of the conflict perpetrators have not been effectively dealt with. Maoist violence continued after the official end of the conflict, however the South Asia Terrorism Portal has not recorded a fatality caused by the Maoists since 2012. Nepal is now a secular democratic republic: pages 7-8 of the delegate’s decision record.

[2017] AATA 2980

22 December 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction