1604552 (Refugee)

[2019] AATA 5821

1604552 (Refugee) [2019] AATA 5821 (20 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604552

COUNTRY OF REFERENCE:                   Nepal

MEMBER:David McCulloch

DATE:20 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 20 May 2019 at 4:25pm

CATCHWORDS

REFUGEE – protection visa – Nepal – member of the same family unit – significant mental health issues – Alzheimer’s – inadequate support in mental health – ministerial intervention – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 36, 65, 417, 499
Migration Regulations 1994 Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection 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 15 October 2014 and the delegate refused to grant the visa on 11 March 2016.

3. As discussed in the outline of claims below, the applicant suffers from Alzheimer’s disease. It has been claimed that the applicant is not in a position to give evidence to the Tribunal and the Tribunal accepts this based on medical evidence provided. The Tribunal requested that the applicant’s two children residing in Australia appear before the Tribunal to answer questions relating to their mother’s claims.

4. [The Applicants daughter and son] duly appeared before the Tribunal on 6 May 2019.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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, the applicant 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.

6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and, generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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 a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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, 1 March 2019.

10. The issue in this case is whether the Alzheimer’s suffered by the applicant would cause her to be at a real chance of serious or significant harm, as defined, on return to Nepal. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.  However, the matter is recommended for Ministerial intervention under s.417 of the Act.

    Background and claims

11. The applicant has provided to the Tribunal a copy of the decision of the delegate, which outlines the following in relation to her migration history:

    The applicant has travelled to Australia on six occasions. The applicant first travelled to Australia [in] April 1998 on a single entry, three month [temporary] visa granted offshore on 6 January 1998. The applicant complied with the conditions of the visa and departed [in] July 1998. The applicant travelled to Australia a second time [in] June 2009 on a single entry, three month [temporary] visa granted offshore on 20 May 2009. . The applicant complied with the conditions of the visa and departed [in] March 2010.

    On 14 April 2010 the applicant commenced a [temporary] visa application offshore. The applicant was notified on 30 November 2010 that the application to migrate to Australia under the [temporary] had been placed in a queue. 

    [In] December 2011, the applicant was widowed, with the death of her husband, [Mr A].

    The applicant travelled to Australia a third time [in] January 2012 on a single entry, three month [temporary] visa granted offshore on 24 January 2012. The applicant complied with the conditions of the visa and departed [in] November 2012.

    The applicant travelled to Australia a fourth time [in] August 2013 on a [temporary] visa granted offshore 19 July 2013 which would remain in effect until 27 May 2015. The applicant departed [in] February 2014 and re-entered Australia [in] May 2014.

    On 15 October 2014, the applicant commenced an application onshore for a Protection XA-PV visa and remained in Australia on a Bridging Visa WA-010 visa in effect from 10 September 2015, associated with her PV application.

    On 10 September 2015 the applicant applied for a Bridging Visa subclass (WB-020). The applicant’s Authorised Recipient, her daughter, submitted evidence on the applicant’s behalf that she would like to accompany her mother to Nepal to settle her affairs and dispose of property whilst she still retained some memory and was able to travel and sign papers.  The applicant was granted a WB-020 and departed Australia [in] October 2015.

    The applicant re-entered Australia [in] October 2015 and remains in Australia on a Bridging Visa (sub-class WB-020) associated with her Protection Visa application.

12. The application forms for the protection visa indicate the following in relation to the applicant. The applicant was born on [year] in Kathmandu. The applicant is of the Hindu religion. The applicant was widowed [in] December 2011. She had been married since [February] 1960.  The applicant indicates that while in Australia she has been alternating between the homes of her son and daughter in Australia. These are the only children of the applicant. The applicant undertook 10 years of education in Nepal, completing her education in [date]. The applicant lists her occupation as a housewife.

13. In the section of the application form outlining claims for protection the applicant indicates that both her children in Australia are Australian citizens. They are well settled and live comfortably. The applicant refers to her husband passing away in December 2011. The applicant was then alone in the house with no one to care for her. She decided to come to Australia to be with her children. She has complied with all conditions on her visitors visas.

14. During the last visit the applicant started to lose her memory. The applicant started talking strangely. It is claimed that people with mental health issues in Nepal are considered ‘mad’ and harassed. The applicant indicates that when she was in Nepal people started following her and saying nasty things to her and would even throw things at her when she was in the community. Extended family and friends told the applicant to go and live with her children in Australia. The applicant indicates that she has no family in Nepal and there is no system of community health or aged care. The applicant indicates that she has been diagnosed with Alzheimer’s, [and various medical conditions].

15. The applicant fears that upon return to Nepal she would suffer neglect in terms of her healthcare needs not being attended to. She would be isolated and not have family around her. She is at risk of physical harm due to being labelled as ‘mad’.  The applicant indicates that she is a danger to herself because of her memory loss. The applicant indicates that a doctor has advised that she may walk away from home and get lost and also leave the gas on and forget about it.

16. Provided as part of the applicant’s protection visa application is a statement by the applicant’s two children, [daughter and son] (not corrected for spelling or grammar):

    My father [Mr A] suddenly passed away [in] December 2011 in Nepal from [an illness]. As both I and my only surviving sibling [Son] are citizens of Australia we brought mother [the Applicant] over here to live with us. She is at present on a [temporary] ID reference [number deleted]. She is also in queue for [temporary visa].

    According to her current visa conditions [the Applicant] can remain in Australia for twelve months in 18 month period. To comply with the visa she returned to Nepal [in] March 2014 and returned back to Australia [in] of May 2014. She is due to leave the country by [November] 2014.

    [The Applicant] had early symptoms of mental health but this was not diagnosed but my father had insight into what was happening. Since my father's passing away her mental health deteriorated rapidly. Her short term memory has deteriorated completely even to the fact that she forgets to eat when she is alone. She also displays extreme negative behaviour against family members due to her confusion associated with memory loss.

    Apart from other health conditions [the Applicant] was recently diagnosed with Alzheimer's disease by [Professor B]. [Professor B] has advised us that it is not advisable for [the Applicant] to return back to Nepal due to her condition as she is unable to care for herself

    In Nepal there is a stigma surrounding mental health issue and someone with mental health eg Alzheimer is considered to be "mad". In her last visit to Kathmandu [the Applicant] talked of instances where people were running after her calling her "mad" and throwing things at her while she was out in the street. After she returned back to Australia I received calls from relatives advising me not to send her back otherwise she might come to harm. In a phone call my father made to be two weeks before he passed away he told me that he was worried for safety for both mum and himself due to mother's condition even though it was not diagnosed at that time.

    These are the reasons we are concerned about sending [the Applicant] to Nepal and would like to apply for a Protection Visa for her. Me and my brother hope that the Australian Government is able to show some compassion towards my unwell mother and allow her to live peacefully in Australia and get her medical needs met.

    [The Applicant] will not be as liability to the Australian Government here. She has large property back home that is in her name which we plan to sell and bring the proceeds here once she has permanent residency. She also has funds in her account with [a] Bank in Kathmandu that is sufficient to provide her with good medical care that she will need here. In addition as both [Son] and I both have stable jobs and good family income we will be able to care for our mother and give her the best care in her old age.

    Included in this application is the medical report from [Professor B] and copy of [the Applicant’s] passport. Please advice me if further documents are required to complete the application. Also included are various forms required to apply for Protection Visa.

    While in Australia [the Applicant] sometimes resides in [Son’s] residence in [address] and sometimes in my residence in [a suburb].

17. The applicant provided to the Department a letter from [Professor B], dated 16 September 2014 relating, to a review of the applicant based on a consultation on 12 September 2014. The letter is addressed to another doctor (presumably the applicant’s GP). The letter indicates that the applicant has a progressive deterioration of memory over the last three years following the death of her husband. The applicant’s daughter refers to the applicant being geographically disoriented. She remains independent in activities of daily living. There is reference to the applicant having [a medical condition]. The applicant generally sits around at home doing nothing. She sleeps adequately at night. She eats little during the day without motivation to eat. She does eat the evening meal. She is not experiencing hallucinations or obvious delusions other than related to poor memory.  It is noted that the applicant is completely disoriented as to time and place. She follows simple commands adequately. It was not possible to assess her cognitive state due to language issues. Brain scans are strongly suggestive of Alzheimer’s disease. It is noted that the applicant is anxious and probably depressed. It is recommended that drugs be prescribed to improve memory and reduce paranoia. The letter concludes with the hope that the applicant can be granted permanent residence status at the earliest opportunity. It is noted that she has no alternative care available in Nepal.

18. Provided to the Tribunal is a letter from [medical professional] dated 17 January 2019, indicating that the applicant has been under the doctor’s care for the last five years. The applicant suffers from [a medical condition] and Alzheimer’s disease as a result of which she cannot remember anything.

    Independent information

19. DFAT Country Report – Nepal, 1 March 2019 provides as follows in relation to health and mental health:

    Health

    Article 35 of Nepal’s 2015 Constitution guarantees access to basic health services as a fundamental right. The country has a variety of public and private health-care facilities. Public health facilities include primary health-care centres and district hospitals. Private health facilities include formal hospitals, nursing homes, private practitioners (especially at clinics or private pharmacies), private medical colleges and non-governmental organisations or community-run hospitals and traditional healers, such as Ayurvedic practitioners.

    Health expenditure was 5.8 per cent of GDP in 2014 (the most recent available reliable data). The private share of total health expenditure was about 60 percent in 2016, most of which was derived from out-of-pocket payments from patients and their families. Free essential health services are available via primary health care centres and district hospitals. Under this system, no charges are levied for registration, outpatient, emergency and inpatient services, or for essential drugs. Use of public health facilities by lower-caste, illiterate and marginalised people has increased since the introduction of the free essential services policy.

    Nepal’s health sector is challenged by the country’s widespread poverty, limited government funding and its remote and mountainous geography which hinders the development of appropriate health infrastructure and access to health services outside of the densely populated southern plains region. Health care services are generally considered inadequate by international standards; many hospitals do not have toilets, running water, soap or reliable electricity. Hospitals in Nepal tend to be located in urban areas and provide a much wider range of medical services than rural health centres, although the quality of health care provided in large urban centres such as Kathmandu is still variable. Patients may rely on family support to access medicines and nursing care. Specialist doctors are available, including in smaller local hospitals, however those requiring specialist treatment may need to travel to access that treatment and services are constrained in the context of limited facilities across the sector.

    According to the UNDP, average life expectancy at birth for is 69 years for males and 72.2 years for females. Disease prevalence tends to be higher in Nepal than in other South Asian countries, especially in rural areas. Malnutrition and poor sanitation are widespread, however access to improved water sources and sanitation have improved over the last two decades, including during the conflict period. The burden of infectious diseases, including bacterial diarrhoea, hepatitis A and E, typhoid fever, Japanese encephalitis, malaria, and dengue fever is high.

    Among infants, 19 per cent of deaths of children under 5 were related to premature birth and neonatal and maternal health problems in 2012, the most recent statistics available from the World Health Organisation. Access to health facilities for childbirth are limited and women may be isolated from homes and families during childbirth due to traditional beliefs (see Women).

    Violence against health care providers has increased throughout Nepal in recent years. Violence has included physical assault against doctors and health care providers and vandalism and property damage in hospitals. Many of these incidents have been attributed to the death of a patient, accusations of negligence, mismanagement and poor service quality on the part of health care professionals or providers.

    Mental Health

    Mental health facilities are poor and availability throughout the country is not consistent. Decades of conflict and natural disasters have left many Nepali people vulnerable to mental health disorders. Stigma about mental health conditions prevents identification of conditions and access to treatment. Stigma is particularly associated with mental health disorders that involve psychosis, such as schizophrenia.

    Victims of torture and conflict may have access to government provided facilities which are supposed to be free, but in practice charge money. Drugs that are used to treat people with mental health problems may not be in line with current international medical practice, or not available at all.[1]

    [1] DFAT Country Report – Nepal, 1 March 2019, paras 2.18-2.23

20. For the purpose of this decision the Tribunal made a request for research from the Country of Origin Information Services Section of the Department of Home Affairs in relation to the medical services that would be available in Nepal to someone in the applicant’s medical situation as well as the stigma that would attach to a person with Alzheimer’s in Nepal. A  report was provided on 22 February 2019. The questions asked by the Tribunal and the research responses follow[2]:

    [2] Country of Origin Information Services, Department of Home Affairs, Standard Q&A Report, Nepal: C190122093504590 – Alzheimer’s support, 22 February 2019

    1.   Indicate the health or other services that would be available to an elderly widow in Nepal with Alzheimer’s resulting in significant mental health issues and with no family support. Would such a person be destitute or would the state provide accommodation and health facilities for such a person?

    The information found by COISS indicates that the family (especially the sons’ family for religious and cultural reasons) remain the primary caregivers for the elderly in Nepal. An estimated 80 percent of elderly parents live with their children.[3]

    [3] 'Dementia Assessment and Management Protocol for Doctors in Nepal', Arun Jha, Nidesh Sapkota, Journal of Nepal Medical Association, vol. 52, Jan-Mar 2013, 20190215132452; 'Children’s Migration and Its Effect on Elderly People: A Study at Old Age Homes in Kathmandu', Prakriti Khanal, Sunita Rai and Hom Nath Chalise, American Journal of Gerontology and Geriatrics, vol. 1, 9 March 2018, 20190215153239

    The healthcare sector is challenged by poverty, topography, and limited government funding. A wider range of health services is provided in large urban centres, although the quality is still variable.[4] The Nepalese Department of Health annual 2015/2016 report states that the government provides essential health services (emergency and inpatient) to certain categories of people, including destitute persons and senior citizens.[5]

    [4] 'DFAT Country Information Report Nepal April 2016', Department of Foreign Affairs and Trade, 21 April 2016, pp.5-6, CIS38A8012676

    [5] 'Annual Report: Department of Health Services 2072/73 (2015/2016)', Department of Health Services, Nepal, 12 June 2017, CISEDB50AD7795

    The government of Nepal has added  to the list of diseases whose patients are provided financial help for medical management on recommendation from the District Health Office (DHO) or the District Public Health Office (DPHO).[6] According to a 2016 report on Alzheimer’s disease in Nepal,  sufferers may receive free services and medicines worth 100,000 Nepalese Rupees[7] from certain hospitals[8] after diagnosis.[9] A 2018 article indicates that Alzheimer’s disease sufferers receive a subsidy of one lakh (150,000 rupees).[10] This appears to be a one-off payment. Both of these sources note that this is insufficient to pay for associated healthcare costs.

    [6] 'Alzheimer's disease in Nepal', Koirala, S, HelpAge International, August 2016, 20190215144526

    [7] A bit above AUD1200 at the current exchange rate (

    [8] National Academy of Medical Sciences, Tribhuvan University Teaching Hospital and Patan Academy of Health Sciences in Kathmandu Valley and BP Koirala Institute of Health Sciences in Dharan ('Alzheimer's disease in Nepal', Koirala, S, HelpAge International, August 2016, p.8, 20190215144526)

    [9] 'Alzheimer's disease in Nepal', Koirala, S, HelpAge International, August 2016, 20190215144526

    [10] 'Alzheimer Emerges A Major Health Problems In Nepal', New Spotlight Nepal, 29 June 2018, 20190215150236

    An Old Age Allowance is provided to all persons above 70. There is also a widows pension. COISS did not find information on the current amount; in 2017 it was 500 Nepalese Rupees a month.[11] According to PensionWatch, the Old Age Allowance is 2,000 Nepalese Rupees a month (equivalent to US$19).[12]

    [11] 'The Quest for Achieving Universal Social Protection in Nepal: Challenges and Opportunities', Sijapati, B, Indian Journal of Human Development, 2017, 20190221151256

    [12] 'Country profile: Nepal', PensionWatch, 2018, 20190215151844.  Also 'Social Security Programs Throughout the World,Asia and the Pacific, 2016 - Nepal', United States Social Security Administration, 2017, 20190215152628

    A 2018 journal article reports that that the fees for the majority of elderly respondents in old age homes were paid for by their children (66.7% by sons, 18.2% by daughters).[13]

    [13] 'Children’s Migration and Its Effect on Elderly People: A Study at Old Age Homes in Kathmandu', Prakriti Khanal, Sunita Rai and Hom Nath Chalise, American Journal of Gerontology and Geriatrics, vol. 1, 9 March 2018, 20190215153239

    In January 2019 Nepalese media reported that the Nepali government is introducing a bill to amend the Senior Citizens Act 2006, which will make it mandatory for children to make a financial contribution (5-10 percent of their income) to their elderly parents care.[14]

    [14] 'Nepal New Law to Ensure Children Secure Parent’s Old Age', Nepali Sansar, 8 January 2019, 20190215154825; 'Offspring must deposit money in parent’s bank account: Nepali minister', NP News24, 4 January 2019, 20190215155535

    In 2016 Dr Sharad Koirala released a report on Alzheimer’s disease in Nepal, which was prepared for HelpAge International. In this report he notes that there were very minimal previous studies and literature on Alzheimer’s disease in Nepal. In the report he states:

    ·  The Nepal Government has only recently recognized AD as an emerging public health problem and included it in the list of diseases whose patients are eligible to a financial help for medical management. The patients of AD are provided a free service and medicines worth NRs. 100,000 (one hundred thousands) from certain enlisted hospitals on the diagnosis of the disease and a recommendation from the DHO or the DPHO (MOHP, 2014). This aid is given by the Department of Health Services (DOHS) through 4 enlisted hospitals in the country (National Academy of Medical Sciences, Tribhuvan University Teaching Hospital and Patan Academy of Health Sciences in Kathmandu Valley and BP Koirala Institute of Health Sciences in Dharan). Though it is a small amount compared to the expenses that occur in the management of the disease after its diagnosis, it can be taken as a positive step towards the recognition of the disease as a public health problem. This has made way for inclusion of the disease in the health policies and programs of the government in the future. According to the records in the DOHS, it is noteworthy that there have been only 9 patients with AD receiving the government facilities in the last 3 fiscal years (2013/14, 2014/15 and 2015/16).[15]

    [15] 'Alzheimer's disease in Nepal', Koirala, S, HelpAge International, August 2016, p.8, 20190215144526

    The report details the various non-governmental organisations which work in advocacy and training for Alzheimer’s Disease. These include Ageing Nepal, Alzheimer's and Related Dementia Society Nepal (ARDS Nepal), Hope Hermitage and the National Senior Citizens' Federation (NASCIF). The report also lists the following organisations providing old age homes: Pashupati Briddhashram, Siddhi Shaligrame Briddhashram, Hope Hermitage, Orchid Home, Amaghar, Nisahaya sewa sadan, Tapasthali Briddhashram and Matatirtha Briddh ashram. The report notes that most of the resources are concentrated in the Kathmandu valley.[16]

    [16] 'Alzheimer's disease in Nepal', Koirala, S, HelpAge International, August 2016, pp.9-10, 20190215144526

    Most reports indicate that Nepal has limited residential aged care options[17], although some reports indicate that the number of old age homes is increasing.[18] COISS did not find any authoritative recent information on how many aged persons are in residential care in Nepal. This perhaps indicates that there has been no studies done on this. All the sources found give the same facts: one government supported old age home (Pashupati Bridrashram) caters for 230 persons, while 70 organisations are registered with the government and provide services to 1500 aged persons. These figures are quoted both in 2010 sources and in 2018 sources.[19]

    [17] Eg. 'Alzheimer's disease in Nepal', Koirala, S, HelpAge International, August 2016, 20190215144526

    [18] 'Health Status of Elderly living in Government and Private Old Age Home in Nepal', Sahara Mishra and Hom Nath Chalise, Asian Journal of Biological Sciences, vol. 11, 2018, 20190215113756; [18] 'Children’s Migration and Its Effect on Elderly People: A Study at Old Age Homes in Kathmandu', Prakriti Khanal, Sunita Rai and Hom Nath Chalise, American Journal of Gerontology and Geriatrics, vol. 1, 9 March 2018, p.2, 20190215153239

    [19] 'Children’s Migration and Its Effect on Elderly People: A Study at Old Age Homes in Kathmandu', Prakriti Khanal, Sunita Rai and Hom Nath Chalise, American Journal of Gerontology and Geriatrics, vol. 1, 9 March 2018, p.2, 20190215153239; 'Status Report on Elderly People (60+) in Nepal on Health, Nutrition and Social Status Focusing on Research Needs', Geriatric Center Nepal, March 2010, 20190215142105

    The Pashupati Old Age Home is managed by the government and is supported by donations. It was damaged in the 2015 earthquake.[20] Recent media articles report that it is in a state of disrepair[21] although other reports indicate that residents are well cared for.[22]

    [20] 'Damages at Pashupati Briddhashram Add Woes to Senior People', The Rising Nepal, 17 May, 2015, 20190215161155

    [21] 'Pashupati home unfit for elderly folks', Kathmandu Post, 13 October 2018, 20190215161451; 'Elderly underfed, neglected at Pashupati old age home', Himalayan Times, 18 September 2017, 20190215161829. Also see: 'Siddhi Shaligram Briddhashram (SSB) - Home for Senior Citizens', Siddhi Memorial Foundation website, n.d., 20190215110604

    [22] 'Retirement: Homeless Elderly in Nepal Find New Life', Hinduism Today, July-Sept 2015, 20190215162241

    A study of old age homes in Nepal published in 2018 also found that elderly people in private old age homes have a better health status that those living in government old age homes.[23]

    [23] 'Health Status of Elderly living in Government and Private Old Age Home in Nepal', Sahara Mishra and Hom Nath Chalise, Asian Journal of Biological Sciences, vol. 11, 2018, 20190215113756

    A 2010 report by the Geriatric Center Nepal provides the following information on Old Age Homes:

    ·  There is an Old Age Home in the premises of temple Pashupati Nath (Pashupati Bridrashram) for the destitute elders. Ministry of Women, Children and Social Welfare operates the old-age home that has the capacity for only 230 elderly people. This is the only one shelter for elderly people run by the government which was established in 1976 as the first residential facility for elders.

    ·  There are about 70 organizations registered with the government (GCN 2010) spread all over Nepal. These organizations vary in their organizational status (government, private, NGO, CBO, personal charity), capacity, facilities, and the services they provide. Most of them are charity organizations. About 1,500 elders are living in these old-age homes at present.

    ·  These private organizations are providing services to elderly out of the individual’s initiatives. The services are determined with the consent of the individual generosity. The services and care, virtually, do not include aspects that are essential to cater elderly in these Homes.

    ·  Despite these initiatives, the Government does not have any official records on how many old age destitute people are taking shelter in these Old Age Homes (Briddhashrams).[24]

    [24] 'Status Report on Elderly People (60+) in Nepal on Health, Nutrition and Social Status Focusing on Research Needs', Geriatric Center Nepal, March 2010, 20190215142105

    The Official Portal of Government of Nepal provides the following list of Old Age Homes, sourced from the Social Welfare Council:

    ·  Sri Sathya Sai Seva Organization Nepal 
    514 Sama Marga, Chardhunge, Naxal, Kathmandu, Nepal
    Tel:[phone]
    Email:[email protected] 
    Website: Ageing Nepal
    House# 340, RamchandraMarg, Battisputali, Kathmandu, Nepal
    Tel:[phone]
    Email:[email protected]
    Website: Siddhi Memorial Foundation Nepal 
    P.O. Box 40, Bhimsenthan, Bhaktapur-7, Nepal
    Tel:[phone]
    Fax:[phone]
    Website: Pashupati Briddhashram 
    Pashupati, Kathmandu, Nepal[25]

    [25] 'Old Age Homes', Official Portal of Government of Nepal, n.d., 20190215164712

    COISS found the following relevant organisations:

    ·Alzheimer Related Dementia Society (ARDS-NEPAL), a local not-for-profit NGO. The website is: ARDS works to raise awareness of Alzheimer’s disease, to provide advice and to encourage research and training. Although the website mentions the construction of a day care facility to senior citizens at Nuwakot, COISS found no mention of residential care provided by ARDS.[26]

    [26] 'About ARDS-Nepal', Alzheimer Related Dementia Society (ARDS-Nepal) website, n.d., Accessed 21 February 2019, 20190221153254

    ·Bishraam Mental Health Center provides services in dementia and Alzheimer’s patients.[27] It has 20 beds, but the information does not indicate if this is a permanent residential facility.

    [27] 'MH Services in Nepal', Nepal Mental Health Foundation, 11 February 2016, CIS38A8012212

    ·Hope Hermitage Elderly Care offers residential care in Kathmandu for Alzheimer’s sufferers.[28]

    [28] 'Our Services', Hope Hermitage, n.d., Accessed 21 February 2019, 20190221152655

    ·Orchid Care Home has 50 beds[29]

    [29] 'About Orchid', Orchid Care Home website, n.d., Accessed 21 February 2019, 20190221153756

    The latest Department of Foreign Affairs and Trade (DFAT) Nepal country report provides the following information on health:

    · 2.15 Article 35 of Nepal’s 2015 Constitution guarantees access to basic health services as a fundamental right. The country has a variety of public and private health-care facilities. Public health facilities include subhealth posts, health posts, primary health-care centres and district hospitals. Private health facilities range from formal hospitals, nursing homes, private practitioners (especially at clinics or private pharmacies), private medical colleges and non-governmental organisations or community-run hospitals to informal practitioners such as faith healers (jhankri or shamans) and Ayurvedic practitioners.

    ·  2.16 Health expenditure was 6 per cent of GDP in 2013 (the latest available reliable data). The private share of total health expenditure was 70 per cent in 2013, of which about 85 per cent was derived from out of-pocket payments. In 2007 the government of Nepal introduced free essential health care services for poor and vulnerable citizens attending primary health-care centres and district hospitals. In 2008 the policy was extended to all citizens. In 2009, free essential health services became available via primary health care centres and district hospitals. Under this system, no charges are levied for registration, outpatient, emergency and inpatient services, or for essential drugs. Use of public health facilities by lower-caste, illiterate and marginalised people has increased since the introduction of the free essential services policy.

    ·  2.17 Nepal’s health sector is challenged by the country’s widespread poverty, limited government funding and its remote and mountainous geography which hinders the development of appropriate health infrastructure and access to health services outside of the densely populated southern plains region. Health care services are generally considered inadequate by international standards, and some facilities, particularly in Kathmandu, were damaged or destroyed by the 25 April 2015 earthquake. Hospitals in Nepal tend to be located in urban areas and provide a much wider range of medical services than rural health centres, although the quality of health care provided in large urban centres such as Kathmandu is still variable. The average Nepali spends just 5 per cent of their annual income on health-related needs.[30]

    [30] 'DFAT Country Information Report Nepal April 2016', Department of Foreign Affairs and Trade, 21 April 2016, pp.5-6, CIS38A8012676

    The Nepalese Department of Health Services 2015/2016 annual report provides the following information on health:

    ·  The Interim Constitution of Nepal, 2007 gave every citizen the right to basic health services free of cost. The government subsequently decided to provide essential health care services (emergency and inpatient services) free of charge to destitute people, poor people, disabled people, senior citizens, FCHVs, victims of gender violence in up to 25 bedded district hospitals and PHCCs. The government also committed to improving the health of rural and urban people by delivering high-quality health services.

    ·  In 2072/73, curative health services were provided to outpatients, including emergency patients, and inpatients including free health services. Inpatient services were provided different level of hospitals including INGOs/NGOs, Private medical college hospitals, nursing homes, and private hospitals. In 2072/2073, 66% of the total population received outpatients (OPD) services, 975,280 patients were admitted for hospital services and 1,263,992 patients received emergency services from hospitals.[31]

    …

    2.   Indicate the stigma in Nepal attached to individuals with mental health issues and the treatment of them, in particular the situation that would face an elderly widow with significant dementia/Alzheimer’s in terms of societal treatment.

    Recent reports indicate that there is a stigma attached to individuals with mental disorders in Nepal. Dementia/Alzheimer’s disease is not well understood in Nepal[32] and families with relatives with dementia fear the stigma and hide the problem, rather than seeking treatment.[33]

    Previous COISS research provides information on the treatment of widows with mental illness. See Nepal: CI180323094818716 – Widows – Mental Illness – Violence – Witches – Attacks – Baglung – State Protection', Country of Origin Information Services Section (COISS), 10 April 2018, CR837DFFB110

    [31] 'Annual Report: Department of Health Services 2072/73 (2015/2016)', Department of Health Services, Nepal, 12 June 2017, CISEDB50AD7795

    [32] 'Alzheimer's disease in Nepal', Koirala, S, HelpAge International, August 2016, p.5, 20190215144526

    [33] 'A much older tomorrow',  Nepali Times, 31 March – 6 April 2017,   20190221154245; 'Remembering dementia', Nepali Times, 3-9 April 2015, 20190221154715

1. The COISS report referred to in the last paragraph extracted immediately above contains the following concerning mental health, particularly in relation to widows (footnotes omitted):

   The US Department of State (USDOS) report on human rights practices in Nepal for 2016 indicates that ‘traditional attitudes stigmatizing and shunning widows persisted’ in Nepal. A June 2016 article in the Kathmandu Post refers to ‘a patriarchal mindset’ still prevailing in Nepal, and to social stigma attached to widowed women having ‘profound consequences on them, including economic deprivation. Many widows also regularly face physical, psychological and sexual abuse and torture’. Another June 2016 article from Reuters refers to Nepal as ‘a country where widows face hostility, abuse, discrimination and even enslavement’, and to widowhood remaining ‘surrounded by taboos in this patriarchal society’.

   In relation to persons suffering from mental illness, a May 2016 article in Himal Southasian indicates there is ‘[s]ocial stigma, lack of awareness and discrimination against those suffering from mental illness’ in Nepal. The article states that in a 2011 report, the Nepal Government’s Health Sector Support programme ‘mentioned that young women in arranged marriages, widows and post-natal women are particularly vulnerable’ to suicide in Nepal. There was a ‘lack of public awareness’ of mental illness, which was ‘exacerbated in a situation where no governmental framework and infrastructure is in place. The allocated budget for mental health treatment did not even make up one per cent of the total health budget in 2014-15. There is only one public psychiatry hospital in Nepal, the Mental Health Hospital in Lagankhel, Kathmandu, which provides only medication but no therapy or counselling’.The USDOS report on human rights practices in Nepal for 2016 states that ‘[a]ccess to mental health services was available in larger cities, but the Ministry of Women, Children, and Social Welfare decreased its allocation for mental health organizations during the year from NRs 1.5 million to 1 million ($15,000 to $10,000)’.[34]

   [34] Nepal: CI180323094818716 – Widows – Mental Illness – Violence – Witches – Attacks – Baglung – State Protection', Country of Origin Information Services Section (COISS), 10 April 2018, CR837DFFB110

   Hearing, findings and assessment

2. The Tribunal is satisfied that the applicant is a citizen of Nepal and accordingly claims will be assessed against Nepal.

   Children’s evidence in hearing

3. As indicated, the applicant’s son and daughter attended a hearing of the Tribunal on 6 May 2019. The applicant did not attend herself, due to her Alzheimer’s disease. The applicant’s children provided the following evidence at hearing.

4. The applicant’s son came to Australia in October 2006 on a [temporary visa]. The applicant’s son became an Australian citizen, is married, and has one child. The applicant’s son now works for a [a company]. The applicant’s daughter came to Australia in 1992 from Africa, on her husband’s [temporary visa]. The applicant’s daughter is also an Australian citizen, and works [in an occupation]. Prior to this, the applicant’s daughter worked for [an organisation] for 18 years. The daughter’s husband initially worked for [in a previous occupation], but now works for [in an occupation].

5. The son and daughter are the only living children of the applicant.

6. The applicant’s husband died in December 2011. When the applicant visited the children in 2012, the applicant was diagnosed with Alzheimer’s disease. Since the applicant was only on a [temporary visa], the applicant returned to Nepal from November 2012 to August 2013. The applicant’s son went to Nepal with her for a few weeks. During the extended stay in Nepal, the applicant lived at her home and was cared for by her servants. The applicant’s son has travelled to and from Nepal with the applicant when she has been required to return to Nepal. The applicant’s son (not the daughter as indicated above) travelled with her once in 2015 to settle their affairs and attempted to sell their property.

7. The applicant was initially aggressive when she was diagnosed with , but has become quieter. The applicant is able to undertake her morning routine on her own, but requires help undertaking day-to-day tasks. The applicant forgets what day it is, what she has done, what food she has eaten, and requires [assistance] when leaving the house. The applicant sometimes requires a walker when moving around the house. The applicant’s children must keep the doors and windows shut to ensure the applicant does not leave the house and wander off. The applicant alternates between two weeks at her son’s house, and then two weeks at her daughter’s house. On one occasion in Nepal, the applicant mistook her son for her deceased husband. The applicant is medicated for her condition, which prevents her major deterioration, although the applicant’s condition still deteriorates over time.

8. The applicant was one of five children. She has three [sisters] still alive. The sisters still live in Nepal, though they are also all over the age of [age] and suffering health problems. The sisters are all married. The [sister] had [a medical condition] and lacks mobility, the younger sisters had both recently [medical conditions]. The applicant has one nephew and niece living in Nepal. Her other nephews and nieces live in the USA and one in Australia. The applicant’s children are not close to their cousins, and the applicant’s daughter only keeps in touch with them via [social media]. The applicant’s nephew and niece in Nepal visited the applicant during her extended stay in Nepal, but they do not otherwise provide support to the applicant or help look after her, and they are not close.

9. The applicant’s children do not have any plans in place should the applicant’s application for a protection visa be denied. Although the applicant owns a house in Kathmandu, which lies empty, the servants no longer work there and it is now not possible to obtain servants who would take care of the applicant. The applicant’s children stated that aged care homes in Nepal lack funding and do not take adequate care of aged persons in the homes. The applicant’s children fear that the applicant’s condition will deteriorate more rapidly in Nepal, without anyone to care for her. The applicant’s children fear that she may then face a risk of harm by being taken advantage of, or wandering away and forgetting where her house is.

10. The applicant is in the queue for a [temporary visa]. The applicant’s children applied in 2010. According to the applicant’s daughter, there are around 2,000 applications to be heard before the applicant’s. Based on how the application has progressed since 2010, the applicant’s daughter estimates that the [temporary visa] application will be finalised in around two years. The applicant’s children have not applied for a [temporary visa], since they do not have the resources for the visa, especially in circumstances where the applicant may need to be placed in a nursing home within the foreseeable future, which would strain the children’s resources.

    Assessment

11. The Tribunal accepts that the applicant has Alzheimer’s and that her condition is slowly deteriorating. Whilst she can manage some of her own day-to-day living, she requires assistance in managing a number of her day-to-day affairs and requires monitoring to ensure that she does not ‘wander off’.

12. The Tribunal accepts that the applicant’s only two children live in Australia and that she does not have significant extended family support in Nepal who would be in a position to care for and monitor the applicant.

13. The Tribunal notes that the applicant’s home lies empty in Kathmandu. On at least one return visit from Australia, the applicant has lived in her home in Kathmandu with the assistance of servants who were engaged. Whilst the applicant’s children have indicated they would not be in a position to re-engage servants, and the Tribunal accepts that this would entail inconvenience and expense, if the need absolutely arose, and the applicant had to return to Nepal, the Tribunal considers that the most likely scenario is that her two children would make arrangements for appropriate staff to live with and care for the applicant at a home in Kathmandu. The Tribunal considers that this would require at least one of her children to accompany the applicant to Nepal and make arrangements in this respect.

14. The independent evidence does indicate that there are aged care facilities in Nepal although mostly elderly parents are cared for by their children. There are limitations in the extent of services provided in aged care facilities.

15. As an alternative to the applicant being cared for in her home in Kathmandu by appropriate staff, the Tribunal considers that arrangements would be made to place the applicant in an appropriate aged care facility in Kathmandu by her children, if the applicant had to return to Nepal. Again, the Tribunal considers that this would involve one of her children returning with the applicant to Kathmandu to facilitate these arrangements.

16. The Tribunal wishes to highlight, as expanded below in consideration of a recommendation for Ministerial intervention, that the requirement for the applicant and her children to make arrangements in these respects would be extremely onerous and taxing for all parties practically, emotionally and financially. Nevertheless, if the applicant were not permitted to stay in Australia the Tribunal considers that arrangements would be made in relation to the applicant returning to Nepal, as difficult as they would be to manage.

17. The Tribunal accepts that there is a stigma attached in Nepal to those suffering from mental health conditions. The applicant with Alzheimer’s disease would fall within such a category. If in public, her behaviour could attract adverse attention. However, given the Tribunal’s view that arrangements would be made either for the applicant to live in her home in Kathmandu with the assistance of appropriate staff or that she would be placed in an aged care facility, the Tribunal does not consider that the applicant would be placed in a position in public where she would be adversely treated as a result of any unusual or inappropriate behaviour on her part due to her Alzheimer’s disease. For that reason, the Tribunal does not consider there is a real chance of the applicant facing serious or significant harm as a result of societal mistreatment because of perceived mental health conditions.

18. Given the Tribunal’s view that appropriate arrangements would be made by the applicant’s children for care of the applicant in Kathmandu either in the applicant’s own home or in an aged care facility, the Tribunal would not be satisfied that the applicant faces a real chance of serious or significant harm, as defined, for the reasons claimed.

    Consideration of referral for Ministerial Intervention

19. The Tribunal considers whether it should recommend Ministerial Intervention pursuant to s.417 of the Act.  The Tribunal has taken note of the Minister’s guidelines on Ministerial powers in determining whether to make a recommendation. 

20. The guidelines include the following criteria as to the use of intervention powers:

    ·where there are compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident;

    ·where there are compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.

21. The applicant’s children are both Australian citizens. Clearly the applicant, their mother, is an integral part of the family unit, reinforced by the Nepalese custom of children looking after parents in their old age. If the applicant is required to return to Nepal, the arrangements that would need to be facilitated by the son and daughter in either making arrangements for the applicant to live in her own home under the care of staff or placing her in a nursing home would be extremely taxing in a practical sense, an emotional sense and financially. For both the applicant and her children the pain of separation would be very significant, including in light of the applicant having no significant family support in Nepal. The isolation for the applicant in not having family members around her as she deals with and manages her condition could well be a contributing factor in accelerating the applicant’s decline, in the Tribunal’s view.

22. For these reasons, the Tribunal considers that both of the unique or exceptional circumstances outlined above are met in this case. That is, if the applicant is forced to return to Nepal, there will be serious, ongoing and irreversible harm and continuing hardship to an Australian family unit, namely the family unit of the applicant and her children, particularly in light of the cultural obligation in Nepalese society for children to look after their parents. Further, having regard to the applicant’s age and her psychological condition, her being required to live in Nepal without family support could very well seriously exacerbate and accelerate the deterioration of her Alzheimer’s.

23. Therefore, this is a matter which the Tribunal recommends should be referred for Ministerial intervention under s.417 of the Act with the recommendation that the Minister intervene to allow the applicant to remain in Australia.

    Conclusion

24. 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 the refugee criterion or the complementary protection criterion.

25. For the reasons indicated, the Tribunal considers that the matter should be referred for consideration for Ministerial intervention pursuant to s.417 of the Act.

    DECISION

26. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    David McCulloch
    Member