1603023 (Refugee)

1603023 (Refugee) [2019] AATA 3413 (18 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1603023
COUNTRY OF REFERENCE:                   Nepal
MEMBER:David McCulloch
DATE:18 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 March 2019 at 12:49pm

CATCHWORDS
REFUGEE – Protection visa – Nepal – political opinion – Rastriya Prajatantra Party – attacks by Maoists – support for monarchy – illegal detention – extortion – fear of killing – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 February 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Nepal, applied for the visa on 4 September 2015.
The applicant appeared before the Tribunal on 13 March 2019. The applicant was assisted with the use of an interpreter in the Nepalese language.
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) of the Act. 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) of the Act, 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 of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Report – Nepal, 21 March 2019.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant has provided the Tribunal a copy of the decision of the applicant which indicates the following in relation to his migration history. The applicant applied for a [temporary] visa offshore on 12 June 2015 which was granted on 22 June 2015. The applicant arrived in Australia [in] July 2015. The application for the protection visa was lodged on 4 September 2015.
The following information in relation to the applicant is apparent from the application forms for the protection visa. The applicant was born on [date]. The applicant is married but does not give a date of marriage. The applicant is a Hindu. The applicant lists both parents and a brother living in Nepal. The applicant left Nepal legally. The applicant was in the military in India between [specified years]. From birth until leaving for India the applicant lived in [his home town in] Parbat. On return from India until July 2015 the applicant indicates that he lived in [a named area of] Kathmandu. The applicant lists no employment apart from his time with the Indian Army. The applicant completed his School Leaving Certificate without providing the date of study.
The applicant provided in the interview with the delegate a written statement setting out his claims for protection. This contains more detailed claims than are made in the application forms. The statement provides as follows (not corrected for spelling or grammar):
My name is [name]. I was born on [date] in Parbat, Nepal. I am the son of [parents’ names]. I belong to [a named] ethnic group. My religion is Hindu. I am married and I am the father of one son and one daughter. My wife's name is [name]. I have one brother named [name] who is an Australian citizen. He resides here in Australia with his family. My parents, my wife and children reside in Nepal. I was educated at a [school] in Parbat, Nepal. I completed year 12. I became interested to join the Indian Army due to the influence of my relatives. I tried to become a soldier and I became a soldier with the Indian Army on [date]. I served in the Indian Army as a solider [between specified dates]. After the retirement from the Indian Army, I carried out social work in my village. I firmly believe in the institution of the Nepalese Monarchy as it has played an important role in the history of our great nation. I am a great believer in the Monarchy. As a Hindu believer, I always want Nepal to be a Hindu state but not a secular state. I became a member of the Rastriya Prajatantra Party Nepal [in] May 2014. I faced harm from the Maoists in the hill region and Maoists which are seeking to exert their influence over the region. While working in Parbat, I went from village to village as a monarchy defender. I was living in the village affiliating and working closely with the Rastriya Prajatantra Party Nepal. I was working as a member of the RPP Nepal in the village. The Maoists got agitated with me for my involvement with the RPP Nepal and I was accused of promoting the agenda of the Rastriya Prajatantra Party Nepal above the needs of the community.
I have been identified as a strong supporter of the Monarchy. Consequently I have been harassed and targeted by the anti-Monarchists including the Maoists. I was harassed and threatened by Maoists in Parbat who demanded that I would give up my membership of the Rastriya Prajatantra Party Nepal. They came to my home requesting money. A group of 5-7 armed Maoists took me away forcibly from my home in the village. The Maoist detained me [in] January 2015 for two days because I opposed them instead of supporting them financially. My father paid one of the local Maoists [amount] rupees and I was able to be released from the Maoist's custody. I consider the Maoists as my enemies because I had been forced to pay them money in form of donations from time to time to avoid harm. As an ex-army, I had no option other than paying the Maoists whenever they asked. The Maoist criminals had pressured me into supporting them financially and if I resisted them I would face the threat of being killed. The Maoists have targeted me because of my political involvement with the Rastriya Prajatantra Party Nepal. I have been deprived of my human rights by my enemies. I have the property inherited from my parents. A group of seven or eight people consisting of villagers and outsider used to come and told me that I must give certain amounts of donations and give up supporting the Monarchy. I gave donations several times. I gave from 10,000 rupees to about 55,000 rupees. Even I had given the donations, they vandalized my property mainly because the groups I gave donations to shifted to another area and a new group would arrive and it had to be repeated every time. The Maoists extorted money from me because it is their practice to extort money from people whom they consider as their enemies. In May 2015, the Maoists approached and demanded me in the amount of [amount] rupees. I paid them [a smaller amount] rupees as a part of the money demanded to avoid immediate harm from them and I had promised that I would not report to the authorities and I would pay the rest of the money by installment within three months. I reported them to the police instead of paying them the rest of the money.
Unfortunately my compliant was simply ignored by the police reasoning for the lack of evidence. Since the Maoists practiced demanding money from me in a closet manner, I was unable to produce the evidence of such demand from the Maoists. I could give the police only my verbal evidence. The police advised me that they could not locate the Maoists regardless of my complaints. I had been working in western region as a monarchy defender which attracted the ongoing adverse interest from Maoists and I was forced to leave the region because I faced life-threatening harm from the Maoists which objected to my activities. I was subsequently harassed with threatening telephone calls. I moved to Kathmandu with the view that I would stay safely and the police would help me from being harmed but I was unable to hide from my enemies even in Kathmandu. I have no faith in the Nepalese authorities for my protection because they are incapable and corrupt. I am convinced that there is no safe place for me in Nepal no matter where I would relocate within Nepal. I did not pay the money the Maoists asked from me, which was way out of my reach. I fully became aware of the reality that I couldn't be afforded protection by the authorities unless I gave them bribes when encountering problems with my enemies. As I could no longer bear Maoists’ threat and Maoist criminals’ extortion in Nepal, I was forced to flee my country due to the unending demand of money from Maoists and death threats if their demands are not satisfied. Given the unending demand and threats from the various groups of Maoists and criminals in the war-torn country, I know the fact that there is no prospect of protection for myself against the risk of harm posed by my enemies in Nepal. I looked for pathways to travel overseas where my enemies could not locate me. As I fear persecution from the Maoists, I requested my brother for my visit to Australia on a [temporary] visa. I was lucky enough to have been sponsored by my Australian brother who has saved my life. I came to Australia to avoid my imminent death from the Maoist criminals. I am fearful of returning to Nepal because the main reason is that the Maoists had threatened that they would kill me sooner or later. I am at risk of being tortured and killed by the Maoist criminals and I am not safe in Nepal because the Maoist criminals have a nationwide network. Corruption is widespread across the country. Police and the people in the authorities are benefited financially from corruption and poor government. In addition to the above mentioned, the recent devastating earthquake wrecked my country, there is an ongoing humanitarian and financial crisis and my country is struggling to rebuild. Crimes and unemployment are increased. In such a situation, I believe it is difficult for me to find work and protection and it is difficult for me to survive in Nepal. I conclude that it will never be safe for me to return to Nepal. Therefore, I am compelled to seek protection here in Australia. I sincerely request the Australian government to be given protection. Thank you.
Independent information
Background to monarchist parties in Nepal
An undated document on the Rastriya Prajatantra Party (RPP) website indicates that the party was formed in 1990 and its ideology is based on nationalism, democracy and liberalism.[1] A monarchist party, the RPP won 20 seats in the 1994 election and joined the Nepali Congress-led government in September 1995. The governing coalition fell in March 1997, and was replaced for less than seven months by a coalition led by Chand as prime minister, which in turn was replaced by a coalition in which Thapa was prime minister. Chand and nine others were expelled from the RPP in January 1998 for threatening to support a no-confidence vote against Prime Minister Thapa. Chand formed RPP (Chand) which did not gain any seats at the May 1999 election, while the RPP won 11 seats. The two groups reunified in 2000, and in October 2002, Chand was re-appointed prime minister by the King. He resigned in May 2003 and was replaced by Thapa, which led to further factionalism. Thapa resigned in May 2004, and in March 2005, formed the Rastriya Janshakti Party (RJP). In January 2006, the RPP’s president, P S Rana, ousted ten members of the RPP’s central committee, who subsequently formed the Rastriya Prajatantra Party (Nepal) (RPP- N). In the April 2008 Constituent Assembly election, the RPP won eight seats, while the RPP-N won four seats and the RJP three seats.[2]
Maoist violence towards members or supporters of monarchist parties
[1] Rastriya Prajatantra Party n.d., About Us – Rastriya Prajatantra Party (RPP) < Accessed 17 September 2012
[2] ‘Nepal’ in Lansdorf, T (ed) 2012, Political Handbook of the World 2012, CQ Press, Washington DC, pp. 1011-1021, at pp. 1018-1020
In 2015, the Tribunal made a request of the Country of Origin Information Section of the then Department of Immigration and Border Protection to research information about political attacks by Maoists on members or supporters of royalist political parties in Nepal since 2011. The following information was obtained in a report dated 9 April 2015.[3]
[3] Country of origin Information Services Section of the (then) Department of Immigration and Border Protection, Nepal CI150313112638359, 9 April 2015
Two reports of Maoist violence against pro-monarchy supporters in 2011 were located. No further reports of violence perpetrated by Maoists or others against conservative pro-monarchy supporters were located from 2011. These both occurred in clashes between groups of supporters of pro-monarchy parties and Maoists.
For the purpose of this decision the Tribunal made a request of the Country of Origin Information Services Section (COISS) of the Department of Home Affairs to update the situation and from April 2015 in terms of reports of harm of RPP or RPP-N members by Maoists. The response included the following:
COISS found no reports of harm of Rastriya Prajatantra Party (RPP) or Rastriya Prajatantra Party – Nepal (RPP-N) members by Maoists since 2015.[4] COISS found some examples of RPP members being harmed during election violence in Nepal since 2015.
COISS researched this topic in April 2015[5] and found no reports of harm since 2013.
Recent political changes
The RPP joined the 2016 coalition government of Nepal. The RPP and RPP-N unified in November 2016, retaining the name of Rastriya Prajatantra Party. It became the fourth largest party in the Parliament. [6]
Recent reports
The most recent US Department of State religious freedom report has the following information on the RPP:
Throughout the year, political leaders and members of the parliament, including senior members of the Rastriya Prajatantra Party (RPP), the country’s fourth largest political party, made speeches calling for the re-establishment of the country as a Hindu state. In April the RPP leadership released its election manifesto, which called for strong legal action to be taken against those accused of killing cows. The party leadership also stated its intention to ban forced, organized, and planned religious conversion achieved by financial rewards or false promises.
In March the Election Commission of Nepal (ECN) rejected the inclusion of a call for a return to a Hindu state in the RPP’s party statute. In response, the RPP launched a series of public protests and introduced a constitutional amendment bill on March 9 demanding the word “secular” in the constitution be replaced with the words “Hindu state with complete religious freedom.” Christian leaders privately stated the RPP-led protests and proposed amendment aimed to influence the ECN to retract its decision on the RPP’s party statue and to gauge broader political support for abandoning secularism. In April the ECN reversed its decision on the RPP’s party statute, and the RPP ended its protests. The RPP never formally brought up the amendment bill for parliamentary discussion due to a perceived lack of support in the parliament, according to some RPP politicians, but Christian leaders expressed concern that support for a return to a Hindu state was gaining momentum.[7]
[4] Searches were conducted in CISNET, Google News archives, Google search engine, South Asia Terrorism Portal database.
[5] 'Nepal: CI15020904716498 – Maoists – RPP – RPP-N – Violence', Country of Origin Information Services Section (COISS), 9 April 2015, CRE6D9079110
[6] RPP-N, RPP become one party’, Republica, 21 November 2016, CX6A26A6E16097; ‘Seeking another path’, Kathmandu Post, 4 December 2016, CX6A26A6E16098
[7] 'International Religious Freedom Report for 2017 - Nepal', US Department of State, 29 May 2018, OGD95BE927556
The COISS report outlines two incidents in 2017 where RPP candidates for election were killed and another where a candidate was injured in an attack from assailants. Another incident refers to an individual being shot by police in a demonstration involving the Nepali Congress, the Communist Party of Nepal – Maoist Centre and the RPP. There is a reference in 2015 to a local leader of the RPP-N being killed during protests and reference to another incident in 2015 where more than two dozen cadres of the RPP-N were injured in a clash with police.
General – current political situation in Nepal and Maoists

The latest DFAT Country Report – Nepal, 1 March 2019 provides as follows:
Recent History
…
In 1996 the Unified Communist Party of Nepal (Maoist) (UCPN-M) began a nationwide violent insurgency against the government leading to a ten-year civil war. Almost 18,000 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.[8]
[8] DFAT Country Report – Nepal, 1 March 2019, para 2.3
…
Political Opinion (Actual or imputed)
All Nepali citizens 18 years and older are eligible to vote. Under the 2015 Constitution seats in the Federal Parliament are reserved for women through quotas, and substantial, proportional allocations made for Madhesis, Dalits, and other minority groups.
Political affiliation, both at an organisational and individual level, is an important aspect of identity. This was a cause of instability during the conflict and in the years immediately following. Political youth wings, bandhs (strikes, see Private Sector/Business Community), demands for donations from local authorities and the private sector, and the obstruction of tender-bidding processes in line with political interests all contributed to this instability.
A diverse and competitive array of political parties operates in Nepal, though the system has faced considerable instability in recent years. Unlike the 1990 constitution, the 2015 Constitution has no limitation on parties formed along ethnic lines leading to many ethnic groups to participate formally in political processes, motivated by a belief that they have been excluded from a society that has historically been ruled by dominant ethnic and caste groups.
Nepal has enjoyed several years of political stability. A lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. DFAT assesses the risk of a return to widespread violence is low.
Fear of Maoists
Communist parties won the 2017 elections in both the parliament and the provincial assembly. The main far left parties, Communist Party Nepal (Unified Marxist-Leninist) CPN-UML and Communist Party Nepal (Maoist Center) merged in 2018. Before political groups were allowed to politically organise in 2015, Maoists recruited from among ethnic minorities who participated in their insurgency.
Tens of thousands of people displaced by the long period of conflict in Nepal (see Recent History) remain displaced. As part of the peace process, Maoists and the government agreed on a programme to allow displaced people to return to their homes. The land once belonging to many displaced people had since become occupied illegally or been given away or sold by the Maoists during the civil war. Some displaced people lack documentation, preventing them from reclaiming their property.
While the two main Maoist parties have merged, the movement has a history of internal splits and the ideology of the two main groups, while merged, is inconsistent. Historical claims of abuses during the insurgency remain unresolved.
Maoists have the potential to control the national agenda without resorting to violence. In general, DFAT assesses that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants.[9]
[9] DFAT Country Report – Nepal, 1 March 2019, paras 3.38-3.45
Hearing, credibility, findings and assessment
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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), 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: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437 (Randhawa).
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Nepal and accordingly his claims will be assessed against Nepal.
The Tribunal has the following credibility issues with the applicant claims.
Firstly, the applicant has not been consistent in relation to where he primarily lived after returning from the Indian Army in June 2013. The applicant’s written claims that the situation in his home village area from May 2015 was the cause of him deciding that he needed to flee to Kathmandu for his safety is inconsistent with the applicant’s evidence in the Tribunal hearing that his job, primary residence, his wife and children were in Kathmandu from June 2013. The written claims suggest that the applicant was living from June 2013 in his home village area and certainly give no indication that he was located or spent significant time elsewhere.
In contrast, the Tribunal notes that in the details provided by the applicant in the application for the protection visa he indicates that he returned to Nepal to a suburb in Kathmandu after he finished his term with the Indian Army in June 2013. In the Tribunal hearing the applicant indicated that he was employed between 15 and 25 hours a week in a [shop] in Kathmandu and that his wife and children moved with him to Kathmandu after June 2013.
The applicant indicated in the hearing that he would spend about half of every month in Kathmandu and for the remainder of every month he would travel to his home village area where he would be involved in political activities with the RPP-N and associated ‘social work’ as well as cultivating family land in the area.
The applicant’s written claims make no mention that the applicant had his job, a home and his wife and children located in Kathmandu from June 2013. Rather, the written claims strongly suggest that the applicant was only located in his village area. The written claims indicate that it was in the period after Maoists demanded a Rs.[amount] donation in May 2015 that he had to flee to Kathmandu for his safety.
In response to this concern put the applicant in the hearing, he indicated that he might not have recounted all details in his written statement and that what he said in the hearing was true.
The Tribunal is not satisfied with this explanation. The written claims indicate that the applicant was forced to flee to Kathmandu after May 2015 and make no mention that the applicant had an established home, a job and his family in Kathmandu from June 2013. This creates credibility concerns for the Tribunal in terms of the genuineness of the applicant’s claimed situation.
Secondly, the applicant has not been consistent in claims as to the timing of his involvement in the RPP-N.
The applicant’s written claims indicate that he became a member of the RPP-N in May 2014 and that it was after this that he began to be involved in activities of the party causing the claimed threats and harm.
In the hearing the Tribunal asked the applicant about the living situation of his parents. The applicant indicated that they were currently living in Kathmandu because they had to flee from their home area because of threats from Maoists. When the Tribunal asked the applicant when his parents moved to Kathmandu, the applicant responded that it was in about January or February 2014. The applicant then gave evidence that the Maoists were threatening and harassing his parents because of the applicant’s own significant involvement with the RPP-N. When the Tribunal sought to confirm with the applicant the timing of the move of his parents to Kathmandu was for the reason of the applicant’s significant involvement in the RPP-N the applicant indicated that that was the case.
The Tribunal put to the applicant that his earlier evidence in the hearing was that he had had such significant involvement in the RPP-N in the second half of 2013 that Maoists were threatening his parents, causing his parents to decide that they needed to escape to Kathmandu for safety. The Tribunal noted to the applicant that this appeared to contradict the applicant’s written statement that he only joined the RPP-N in May 2014 and that his involvement in party work occurred after this time.
In response, the applicant indicated that he was involved with the party before he actually became a member.
The Tribunal is not satisfied of this given the clear indication in the applicant’s written statement that he became a member of the RPP-N in May 2014 and became involved in social work on behalf of the party after this occurred, without making any mention of such significant prior involvement in the party that it caused Maoists to threaten the applicant’s parents as a result of the level of the applicant’s own involvement with the RPP-N.
The contradictory evidence in relation to this issue casts doubts as to the applicant’s claimed political involvement and activities.
Thirdly, the applicant’s account in the Tribunal hearing of returning to his home village area from Kathmandu on multiple occasions, after being kidnapped in his home village area in January 2015, was not credible to the Tribunal.
The applicant’s written claims, as confirmed by the applicant in the hearing, indicate that he was kidnapped by Maoists for two days in January 2015 in his home village area. In the hearing, the applicant indicated that he continued to return to his home village area from Kathmandu for approximately half of every month up until about a month before he finally left for Australia in July 2015.
The Tribunal noted to the applicant in the hearing that it appeared implausible that the applicant would make multiple return visits to his village area in the first half of 2015 and subject himself to a further risk of harm. That is particularly the case given that the applicant had a home, his family, and a job in Kathmandu.
In response, the applicant indicated that he needed to return to his home area to undertake his political activities and obligations regarding family property.
The Tribunal has great difficulty accepting that if the applicant had faced harm from Maoists following a kidnapping of him in January 2015, that the applicant would subject himself to further risks when he had his home, his family and a job in Kathmandu.
Fourthly, the applicant did not provide an account of his political involvement or of the threats and harm that he and his family received as a result, or of being kidnapped by Maoists, that suggested to the Tribunal that the applicant was talking from actual experience.
Whilst the applicant provided some evidence in the hearing consistent with his written claims, the verbal account provided by the applicant in the hearing was very general in nature, and lacking the detail and embellishment that one would expect if the applicant was describing events from actual experience.
The Tribunal certainly acknowledges the challenges of giving evidence through an interpreter and the stress and difficulty of involvement in a Tribunal hearing. The Tribunal does not give significant adverse weight to its concerns in relation to the applicant’s evidence in this respect, but it does buttress more significant credibility concerns.
Fifthly, the applicant’s account as to threats and mistreatment by Maoists in Nepal in recent years is not consistent with the improving and changing political environment in Nepal. Further, the independent evidence as set out in this decision does not support the position that the applicant would face a real chance of serious or significant harm from Maoists or anyone else as a result of involvement in royalist political parties.
The Tribunal discussed with the applicant in the hearing the independent information set out in this decision. The Tribunal notes that the political environment had been reasonably stable in Nepal for several years. The Tribunal notes that, other than harm in election-related violence, there had been no reports of harm of royalist political party members from Maoists since 2011. In particular, there are no reports of individual royalist political party members being systematically targeted by Maoists or subject to kidnappings. The DFAT report assesses that Maoists no longer have a need to resort to violence as they have the potential to control the national political agenda.
The Tribunal noted to the applicant that the independent evidence did not tend to support claims by the applicant as to what he indicates happened to him from 2015. It also does not support the proposition that the applicant would face a real chance of serious or significant harm on return to Nepal as a result of being involved with royalist political parties.
In response, the applicant indicated that the true situation as to what is happening in Nepal is such that he does face a risk of harm from Maoists.
The Tribunal disagrees. The Tribunal accepts the independent information before it at face value. The Tribunal does not consider that the applicant’s claims as to harm suffered by Maoists in recent years are consistent with independent evidence as to the changed political situation in Nepal. The Tribunal does not consider that the independent information supports the position that the applicant would face a real chance of serious or significant harm on return to Nepal as a result of being a member of a royalist political party or involved in its political activities.
The Tribunal considers these five credibility issues cumulatively. Considered together, they are significantly adverse to the applicant’s overall credibility. The Tribunal is not satisfied that the applicant has been a truthful or credible witness.
The Tribunal is not satisfied that the applicant has become a member of or significantly involved in activities of any royalist political party. The Tribunal is not satisfied that the applicant or his family have been harmed or threatened by Maoists or anyone else as a result of such involvement. The Tribunal is not satisfied that the applicant was kidnapped by Maoists as claimed. The Tribunal is not satisfied that the applicant’s parents were threatened by Maoists as a result of the applicant’s political involvement causing them to have to flee to Kathmandu. The Tribunal is not satisfied that the applicant has been targeted for significant donations by Maoists as a result of his political activities or in the circumstances claimed. The Tribunal is not satisfied that the applicant had to flee to Kathmandu for fear of his safety from Maoists. The Tribunal is also not satisfied that the applicant left Nepal for Australia for this reason.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
The applicant has also claimed a risk of harm due to the generally unstable environment in Nepal. In the hearing, the applicant indicated that his services could be forcibly acquired by Maoists or other terrorist groups because of his military background.
The Tribunal does not consider that independent information, including the DFAT report, outlines such current instability in Nepal that would lead to the conclusion that every individual in Nepal faces a real chance of serious and significant harm. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm based on the overall situation in Nepal.
The Tribunal has disbelieved the applicant’s accounts of his interaction with Maoists. The Tribunal is not satisfied that Maoists or anyone else in Nepal would force the applicant to provide support or assistance based on his military training and background. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious or significant harm on this basis.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 3413

18 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction