1604017 (Refugee)

[2019] AATA 5819

1604017 (Refugee) [2019] AATA 5819 (17 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604017

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Mila Foster

DATE:17 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 17 May 2019 at 9:57am

CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – monarchist – fear of Maoists – death threats – claims of mental torture – non-attendance at review hearing – details of claims not provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 36, 65, 426A, 441A, 499
Migration Regulations 1994 (Cth), Schedule 2,

CASES
MIEA v Guo (1997) 191 CLR 559
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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 March 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Nepal, applied for the visa on 10 August 2015. The delegate refused to grant the visa on the basis that the applicant was neither a refugee or owed complementary protection because he has the right to enter and reside in India.

   CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

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

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

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT produced such a report in relation to Nepal on 1 March 2019.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant’s claims and evidence are set out in his protection visa application. He submitted a copy of the delegate’s decision record with his review application but no other claims or evidence.

10. On 11 January 2019 the Tribunal wrote to the applicant and asked him to provide any relevant additional evidence and to request him to inform the Tribunal whether he would be unavailable to attend a hearing in the following months. The applicant did not respond to that letter.

11. On 18 April 2019 the Tribunal wrote to the applicant again advising that it had considered all the material it had about his application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 16 May 2019. The invitation stated that if he did not attend the hearing, the Tribunal may make a decision on the case without further notice. Five business days and one business day before the scheduled hearing the Tribunal sent SMS reminders about the hearing to the mobile telephone number the applicant had provided to the Tribunal. Delivery of the SMSs failed.

12. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Having reviewed the Tribunal file, I am satisfied that the applicant was properly invited to the hearing via email in accordance with s.441A(5). There is no evidence before me that delivery of that email failed. The applicant had been informed three months before the invitation was sent that a hearing could be scheduled in the following months. The applicant did not respond to the hearing invitation nor has he contacted the Tribunal to explain his non-attendance. In these circumstances, and pursuant to s.426A of the Act, I have decided to make my decision on the review without taking any further action to enable the applicant to appear before me.

13. According to the applicant’s protection visa application he is a [age] year old national of Nepal. He arrived in Australia on a tourist visa [in] June 2014. He had lived his whole life in Nepal and had not previously travelled outside Nepal. He has never married. His parents and two siblings live in Nepal. Two other siblings live in Australia.  He completed higher secondary school, college and one year of bachelor degree course in Nepal. He can speak, read and write Nepali and English. He has never worked.

14. In relation to why he left Nepal, the applicant stated:

    I left Nepal to avoid being killed by my enemy, the Maoists for reason of my political opinion. I am a member of the Rastriya Prajatantra Party Nepal. I am a Monarchist and I am known to the Maoists. The Maoist has targeted me cause of my strong opposition to them. I was forced to flee my country by armed Maoist militia after being threatened with death. I set out my reasons in response to 90-97 in my detailed statement which I will provide soon.

15. In response to question 90 on the protection visa application form asking what he thought would happen to him if he returned to Nepal, the applicant stated ‘Because of my political opinion’.

16. In relation to past harm he had experienced, the applicant stated that he was ‘mentally tortured by the Maoists due to my denial to join and support them’.  The applicant stated that he did seek help after the harm by making a complaint about the abuse to the police but he received no assistance from the police. The applicant stated that he did not move or try to move to another part of Nepal to seek safety because he knew there was no safe place for him in any part of Nepal. He said his enemies, the Maoists, have a nationwide network and they are everywhere in Nepal.

17. The applicant stated that he was sure that he would be killed by the Maoists if he returned to Nepal because he hates them and speaks out against them. He said he did not think the Nepalese authorities could not protect him if he returned because they are also a part of the problems he faces. They are corrupt and he would be ignored unless he bribed them. He did not think he would be able to relocate within Nepal because he would be easily identifiable by the Maoists no matter where he relocated within Nepal. He does not hide his political activity and is vocal about his political opinion. 

18. The applicant indicated that he would be providing a detailed statement as well as other supporting documentation and information but did not do so. He did however provide a certified copy of his Nepalese passport.

19. 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 an 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. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

20. I accept on the basis of the certified copy of the applicant’s passport that he is a national of Nepal as he claims. Nepal is thus the country of reference and receiving country for the purposes of assessing his claims for protection.

21. However, the protection claims made by the applicant in his protection visa application are brief, very general and lacking in specifics. For example:

    a.The applicant has given no details about his membership of the Rastriya Prajatantra Party Nepal (RPP-N) such as when he joined or the extent of his involvement with the party.

    b.He claims he is known to the Maoists but does not say when he came to their attention.

    c.The applicant says he was targeted by Maoists because of his strong opposition to them but does not provide details about how he expressed that opposition.

    d.The applicant does not provide details about the death threat he claims he was subjected to by the Maoists such as when it was made or how it was communicated to him.

    e.The applicant does not specify the nature of the mental torture he claims he was subjected to by the Maoists for refusing to join or support them, when the torture occurred or why the Maoists would ask him to join them or support them if he was opposed to them.

    f.He claims he spoke out against the Maoists, does not hide his political activity and is vocal about his political opinion but does not say when or how he spoke out against the Maoists or what he said, does he not provide particulars about his political opinion other than claiming he was a RPP-N member, a monarchist, and opposed to the Maoist.

    g.The applicant gives no details of his claimed political activity.

22. The applicant’s claims are thus merely unparticularised broad assertions. I therefore do not accept the claims. I do not accept that the applicant joined the RPP-N, is a monarchist, refused to join the Maoists, hates the Maoists or is opposed to them. I do not accept that the applicant was targeted, mentally tortured, abused, or threatened with death by Maoists as he claims. I do not accept that he made a complaint to the police about being abused by Maoists. I thus do not accept that the applicant fled Nepal to avoid being killed by Maoists or that if he returns he will speak out against the Maoists, or engage in political activity or speak express a political opinion which will bring him to the adverse attention of Maoists.

23. Consequently, I am not satisfied on the evidence before me that there is a real chance the applicant will be killed or subjected to serious harm harmed by Maoists for reasons of political opinion or any of the other reasons in s.5J(1)(a). I am therefore not satisfied that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion in Nepal.

24. Nor am I satisfied, having not accepted the applicant’s claims and on the evidence before me, 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 the applicant will suffer significant harm by Maoists.

25. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

26. 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

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

    Mila Foster
    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.

    …