1605127 (Refugee)

[2020] AATA 4208

1605127 (Refugee) [2020] AATA 4208 (21 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1605127

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Mila Foster

DATE:21 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 21 August 2020 at 1:27pm

CATCHWORDS

REFUGEE – protection visa – Nepal – political opinion – monarchist – Rastriya Prajatantra Party Nepal (RPP-N) member – fear of attacks by Maoists – fear of killing – heart condition – cost of medical treatment – employment – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 36, 65, 91
Migration Regulations 1994, Schedule 2

CASES

Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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 December 2014 and the delegate refused to grant the visa on 18 March 2016 on the basis that the applicant was neither a refugee nor owed complementary protection.  

   RELEVANT LAW

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, 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.

   Refugee criterion

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 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).

5. 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.

6. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

7. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

8. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. They include (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.

9. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

14. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Mandatory considerations

19. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and 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 published such a report in relation to Nepal on 1 March 2019 (the DFAT Report).

    BACKGROUND

20. The delegate’s decision record[1] provides the following migration history for the applicant:

    a.On 19 November 2008 the applicant applied offshore for a student visa as the dependant spouse of [spouse name]. The applicant was granted a student visa on 8 January 2009 and he arrived in Australia [in] March 2009.

    b.The applicant’s student visa ceased on 3 November 2010. On the same day he applied onshore for a further student visa as the dependent spouse of [spouse name]. He was granted a second student visa on 7 February 2011. That visa was to cease on 15 March 2015.

    c.The applicant left Australia [in] September 2011 and returned [in] November 2011.

    d.The applicant departed Australia for a second time [in] December 2012 and returned [in] January 2013.

    [1] A copy of which the applicant provided on review.

21. The applicant claims he was born in a remote rural area on Nepal [age] years ago. He claims he returned to Nepal in 2011 and 2012 because his mother was ill. He claims he married [wife’s name] in Nepal in September 2011 and that he and his wife have a son who was born in Nepal in [year]. He claims that his wife, son, and widowed mother live together in his home area in Nepal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The applicant’s claims and evidence have been presented in his protection visa application, a written statement he made on 16 May 2015, documentation he submitted to the Department in relation to his heart condition, during an interview with the delegate conducted on 16 July 2015,[2] oral evidence he gave at a Tribunal hearing held on 30 May 2019, and a medical certificate he submitted after the hearing. In considering the applicant’s claims and evidence I have also had regard to relevant information in other sources which are cited in the decision and in the attachment to this decision.

    [2] A recording of which is on the Department file and summarised in the delegate’s decision record.

23. I note that the Department file relating to the applicant’s protection visa application which I have before me[3] contains a non-disclosure certificate. The certificate states that s.438(1)(a) of the Act applied to information in specified folios on the Department file and that disclosure of the information would be contrary to the public interest because the folios contained information ‘relating to an internal working document and business affairs’. However, that reason is not the basis of a claim for public interest immunity and hence the certificate is not valid. Further, the folios cited in the certificate are internal Department checklist and forms which are not relevant to the issues in the review.

    [3] Department file number [number].

    Summary of claims

24. Broadly speaking, the applicant claims he is a monarchist and that he will be killed by Maoists due to his political opinion if he returns to Nepal. He also claims he will be discriminated against in Nepal due to his heart condition and would die due to a lack of adequate medical treatment and services in Nepal.

    Issues in the review

25. The issues in this review are the applicant’s credibility, whether he was harmed and threatened in Nepal due to his political opinion as he claims, and whether there is a real chance that he will be persecuted in Nepal due to his political opinion and health, and whether there is a real chance he will suffer significant harm as defined in s.36(2A) in Nepal due to his political opinion and health. Having considered the claims and evidence, I have concluded that the decision under review should be affirmed.

    Country information

26. The following information from the DFAT Report and other sources I have consulted provides some background to the applicant’s claims and is relevant to my consideration of his claims.

    a.Nepal was established as an independent monarchy in 1769 and was ruled by hereditary monarchs for most of its history.[4]

    [4] DFAT Report, [2.1].

    b.In 1996, a small leftist party called the Communist Party of Nepal (Maoist), or CPN(M), began an armed rebellion against the government which expanded to a nationwide insurgency over the next decade.[5] The Young Communist League or YCL was a youth wing of the CPN(M).[6]

    [5] The Carter Center (2014), p.4; International IDEA, pp.6-7.

    [6] The Carter Center (2011), p.1, 25.

    c.In February 2005 the king assumed absolute power in a coup supported by the army but in April 2006 a people’s movement and joint alliance of democratic parties and the Maoists forced the king to relinquish direct rule.[7]

    [7] DFAT Report, [2.4]; International IDEA, pp.6-7.

    d.On 21 November 2006 Nepal’s government (an alliance of seven parties) and the CPN(M) signed a peace agreement which declared an end to the civil war.[8] The peace agreement created a roadmap for the formation of an interim legislature and government (that was to include the Maoists) followed by the election of a constituent assembly which was to write a new constitution.[9]

    e.The first constituent assembly election was held on 10 April 2008.[10] The CPN(M) won the largest number of seats with 220 seats, followed by the Nepali Congress party (NC) which won 110, and the Communist Party of Nepal (Unified Marxist-Leninist) or CPN-UML with 103 seats.[11] The Maoists formed a coalition government, with the NC going into opposition, but then left the government in May 2009.[12] Further short-lived coalition governments were subsequently formed.[13]

    f.On 28 May 2008 the first constituent assembly had voted 560-4 to abolish monarchical rule and declared Nepal a republic.[14] In January 2009 the CPN(M) had united with the Communist Party of Nepal (Unity Center-Masal) to form the Unified Communist Party of Nepal (Maoist) or UCPN(M).[15]

    g.An election for a second constituent assembly was held in November 2013.[16] The election was considered to be credible, free and fair.[17] The NC won with 196 seats, followed by the CPN-UML with 175 seats and the UCPN(M) came a distant third with 80 seats.[18] 

    h.A new constitution was promulgated on 20 September 2015[19] which federated Nepal into seven provinces, established a bicameral federal parliament and declared Nepal a secular state.[20]

    i.In 2016, several Maoist parties and factions including the UCPN(M) united to form the Community Party of Nepal (Maoist Centre) or CPN(MC).[21]

    j.The RPP-N was a conservative hard-line party that stood for the monarchy and a Hindu state.[22] It was formed in 2006 by a group of central committee members ousted from another monarchist party, the Rastriya Prajatantra Party or RPP.[23] The RPP-N won four seats in the first constituent assembly elections and its MPs were the only ones to vote against the abolition of the monarchy in May 2008.[24] The RPP won eight seats in the first constituent assembly elections.[25] In the second constituent assembly elections the RPP-N won 24 seats and was the only party that explicitly took a stance in favour of reversing many of the core decisions of Nepal’s political transition, most particularly the abolition of the monarchy. [26]  On 15 November 2016 the RPP-N and RPP unified and became the RPP.[27]

    k.Following parliamentary elections held in late 2017 in which the CPN-UML won 121 seats and the CPN-MC won 53 seats, the two parties formed a coalition government.[28] The RPP won one seat.[29]

    l.In May 2018 the CPN-UML and CPN-MC merged to form the Nepal Communists Party or NCP.[30]

    m.Nepal has enjoyed several years of political stability – it has a lively political environment which provides an opportunity for diverse political parties and views.[31]

    [8] International Crisis Group, p.i; International IDEA, p.7.

    [9] Ibid.

    [10] International IDEA, at p. 9; Lansford, p. 1128.

    [11] International IDEA, at p.10; Lansford, p.1128.

    [12] The Carter Center (2014), pp.16, 20; DFAT, [2.4].

    [13] DFAT, [2.4].

    [14] DFAT Report, [2.4]; Lansford, p.1128.

    [15] The Carter Center (2014), fn.4 on p.16.

    [16] International IDEA, p.19; Lansford, p. p.1129.

    [17] United States Department of State, p.1.

    [18] International IDEA, pp.19-20.

    [19] DFAT Report, [2.6].

    [20] DFAT Report, [2.33], [3.21].

    [21] The Himalayan Times (May 2016).

    [22] Kramer (2013), p.26.

    [23] Lansford, p.1132, 1133.

    [24] Kramer (2013), p.26.

    [25] Kramer (2013), pp.26,28.

    [26] Kramer (2013), p.26; The Carter Center (2014), p.18.

    [27] The Himalayan Times (November 2016), myRepublica.

    [28] Kramer (2018), p.5; Langford, p.1128.

    [29] Kramer (2018), p.3.

    [30] Lansford, p.1128; DFAT Report, [2.9].

    [31] DFAT Report, [3.41].

    Findings on claims

    Country of reference

27. The applicant has consistently claimed that he is a national of Nepal and no other country. His protection visa application included a certified copy of a Nepalese passport issued to him in December 2004. He was issued a new Nepalese passport in May 2015 which I sighted at the hearing. On that basis and in the absence of any evidence to the contrary I find that the applicant is a national of Nepal. Nepal is thus the country against which his claim to be a refugee is to be assessed and is the receiving country for the purposes of the complementary protection criterion.

    Claims relating to political opinion

1. The applicant stated in his protection visa application that he left Nepal on a falsified marriage document and arrived in Australia [in] March 2009 as a ‘student dependent’. He said the false marriage certificate was obtained with the assistance of an agent and that he had no choice but to leave Nepal. He said he had to leave Nepal to avoid harm from his enemies; he left to get peace, protection and to survive. The applicant claimed he had been a monarchist since childhood and had a lot of problems with anti-monarchists including Maoists. He said he had a serious problem with Maoists who had threatened to harm him no matter where he would live in Nepal. In his written statement the applicant said he was forced to leave Nepal because he had received death threats from Maoists in December 2008 and was at grave risk of being murdered by Maoist YCL. He said he had serious problems with the Maoists because he was a royalist and opposed them. He said he paid an agent in Kathmandu a huge amount of money to arrange for him to come to Australia on a student visa as a dependent using a false marriage certificate. He said he expected to obtain permanent residence in Australia through his ‘fake wife’ once she completed her studies but in November 2014 she informed him that she would no longer support him for his ‘immigration matter’.  The applicant confirmed at the hearing that he had obtained the student visa by fraudulent means.

2. The DFAT Report states that a black market exists in Nepal for official documents and that fake documents and fraudulently obtained documents can be obtained with the appropriate contact and financial resources.[32]  I thus accept that that the applicant paid an agent in Nepal a large sum of money to obtain a false marriage certificate and to facilitate his entry to Australia on a student visa as a dependent. However, for the following reasons I do not accept that the applicant did so because his life was in danger.

   [32] DFAT Report, [5.45].

3. Asked about his claims at the interview the applicant stated that he had been a supporter of the RPP and that his late father had been a member of the party. The applicant claimed that during the 2008 elections he was assaulted near his village by a group of Maoist YCL because they knew he was a RPP supporter. The applicant claimed that he tried to report the assault to the police but they were unhelpful. If those claims were true then I expect that the applicant would have mentioned them in his protection visa application or at least in the written statement which he said in his protection visa application would provide details about his claims. However, there was no mention in either the protection visa application or the written statement that the applicant had been a supporter of a particular party or that he had been physically attacked for his political opinion let alone that he was attacked because he was a supporter of a political party. Both his protection visa application and written statement referred to ‘threats’ from Maoists. In fact, in response to question 45 of the protection visa application form which asks whether the applicant had experienced harm in Nepal the applicant ticked the ‘No’ box. At the hearing I asked the applicant about these matters. He indicated he skipped writing about being an RPP supporter and that even though he was physically assaulted he was not injured. I do not accept those explanations. If the applicant had been physically attacked because he was a supporter of the RPP then I expect that he would have mentioned those matters before the interview.

4. Further, the applicant’s evidence about the party he supported changed at the hearing. After he confirmed that the attack occurred during the first constituent assembly elections in April 2008 I asked the applicant how many seats the RPP won. He replied four. When I put to him that according to information I had the RPPN won four seats but the RPP won eight, the applicant then claimed that in fact at the time he supported the RPP-N. I noted that he had claimed he had supported the RPP. The applicant’s explanation seemed to be that he had referred to the RPP because the parties had since united. According to the sources I have consulted the RPP-N and RPP did unite in November 2016 but the applicant stated he was a supporter of the RPP in his interview and confirmed at the hearing that he was attacked for being a RPP supporter at the hearing and only claimed he had been an RRP-N member when confronted with information which contradicted his evidence about how many seats the RPP won in the 2008 elections. That indicates that the applicant changed his evidence to overcome the inconsistency between his evidence and the information put to him. Hence I do not accept his explanation.

5. For the above reasons I do not accept that the applicant was a supporter of either the RPP or RPP-N in Nepal, opposed to the Maoists or that he was threatened, attacked or harmed in any way by Maoists, YCL or anti-monarchists for being a supporter of either party.

6. While it is not inherently implausible that the applicant is a monarchist I do not accept that claim either. The applicant claimed in his protection visa that he left Nepal in 2009 due to threats he had received from Maoists for being a monarchist. He did not claim however that he feared returning to Nepal for reasons of his political opinion. In response to question 46 of the protection visa application form which asks what he feared would happen if he returned to Nepal the applicant said that he feared he would die due to lack of care and medical treatment for his [specific heart condition], would be discriminated against by the conservative people as a ‘patient of [specific heart condition]’ and would suffer severe financial hardship due to the cost involved in his continuous treatment. There was no indication in his protection visa application that he feared harm from Maoists due to his political opinion. However, almost 6 months later the applicant claimed in his written statement that he was unable to return to Nepal due to his political opinion in addition to his health. He said he had serious problems with the Maoists and continued to fear serious harm and even death from Maoists in Nepal because he was a royalist and opposed to them. Asked at the hearing why he had not made that claim in his protection visa application the applicant replied that he thought he had skipped some things and forgotten to mention those things. If the applicant had left his home country because he was threatened by Maoists due to his political opinion I expect he would also recall and not skip mentioning that he feared being harmed and even killed by Maoists if he returned to Nepal due to his political opinion especially given question 46 of the protection visa application form specifically asked what he feared may happen to him if he returned to Nepal.

7. In conclusion, I do not believe the applicant has been truthful about his past experiences with Maoists including the YCL. I have concluded that he invented the claim that he was threatened by Maoists to explain why he came to Australia by fraudulent means. I find that he is not credible and do not accept that he is a monarchist or royalist or that he is opposed to the Maoists. Nor do I accept that the applicant was harmed by the Maoists, the YCL, or anti-monarchists in Nepal for reasons of his political opinion. I therefore also find that there is not a real chance that the applicant will be harmed by Maoists, YCL or anti-monarchists for reasons of political opinion if he returns to Nepal.

   Claims related to applicant’s health

8. The applicant claimed in his protection visa application that he was shocked to discover in Australia that he had a serious heart condition which required an operation and long-term treatment. He said he was ‘a patient of [a specific heart condition]’ and consulted doctors for the treatment of his heart condition ‘from time to time’ since being diagnosed. He said he feared that he would die due to a lack of care and medical treatment if he returned to Nepal, would be discriminated against by conservative people because he was a patient of  [the specific heart condition], was concerned about the discrimination he would encounter in various  areas of his life, and would suffer financial hardship due to the cost of his continuous treatment. He said he would provide further details about those matters in a written statement but did not do so. The applicant merely stated in his written statement that he would receive no effective treatment due to the lack of health professionals and that the cardiac health system in Nepal was dire. At the interview he repeated that he would die in Nepal due to a lack of adequate health facilities.

9. The applicant did however elaborate in his written statement about the effects of the [specific heart condition]. He claimed said he had [treatment] and was in ‘remission’ but there was ‘no cure’ for his condition and it was a ‘daily personal battle’. He said he exercised to help ‘battle the fatigue’ because the inability to absorb nutrition from food was ‘the out of control demon affecting each day’. He said he felt emotionally exhausted and tired all the time and was alone and lost without his ‘health care team’ who were an important part of his life. He said his outlook and whole way of life had changed at least for a time, fear gripped him and he had trouble sleeping and even making simple decisions.

10. According to an Australian government health website,[33] [this specific heart condition] [creates specified health issues] [and further health consequences]. The medical documents which the applicant submitted to the Department reported on his condition as follows:

    [33] [Deleted.]

    a.An Echocardiography Report from [Health Service 1] dated 5 November 2010[34]  states that the applicant had been referred due to abnormal heart sounds detected by a health provider as part of his visa assessment. The report concludes that there was ‘(S)evere [specific heart condition] on the basis of [a symptom]’ and that further management of the condition would be required and cardiac consultation was recommended.

    b.According to a letter from [Health Service 1] dated 23 November 2010[35] the applicant informed [Doctor A] that he was well and asymptomatic, had no dyspnoea, chest pain, dizziness or heart palpitations; was a non-smoker with no history of hypertension, no previous knowledge of a heart murmur and played [sport] regularly without difficulty. [Doctor A] reports that the applicant had ‘significant [specific heart condition] which was fairly severe’ and related to ‘congenital [symptom]’. [Doctor A] concludes that while the applicant’s functional testing that day was ‘okay’ and, based on his lack of symptoms, conservative management was appropriate with ‘ongoing regular surveillance’. [Doctor A] also states that while the applicant may be okay for a few years he would certainly require [specified treatment] at some stage depending on symptoms and subsequent functional assessment of his heart.

    c.An Echocardiography Report from [Hospital 1] in Kathmandu dated 15 October 2011[36]  notes that the applicant had been diagnosed with ‘congenital [symptoms]’ and was asymptomatic and concludes that the applicant had a ‘[specified symptoms].’

    d.A letter dated 17 October 2013 addressed to the applicant from a cardiothoracic surgeon in Sydney[37] states that the surgeon had advised the applicant to undergo [specified] surgery and that recuperation was expected to take three months. The letter seems to be a letter supporting a visit from the applicant’s mother for the period of his recuperation.

    e.An angiogram report dated [in] October 2013 from [another health service].[38]

    f.According to a medical discharge documents from a private hospital in Sydney dated 18 February 2014[39] the applicant underwent [specified treatment] for [specific heart condition] due to [the symptoms identified], the operation was ‘uneventful’ and the applicant ‘recovered well’. The applicant would need [Medication 1]. The document includes notes which state ‘cardiac rehab discussed – will think about it’ and that a follow-up appointment with the cardiologist with a chest x-ray was to occur in 6 weeks’ time.

    g.A letter dated 8 April 2014 informed the applicant that a consultation had been made for him with his cardiothoracic surgeon in Sydney [in] March 2015.[40]

    h.What appears to be a referral made by the applicant’s cardiothoracic surgeon on 23 May 2015 referring the applicant for [a test] in February 2016.[41]

    [34] Department file, ff.51-52.

    [35] Department file, f.50.

    [36] Department file, ff.67,70-71.

    [37] Department file, f.55.

    [38] Department file pp.47-48.

    [39] Department file, ff.73, 63-64.

    [40] Department file, f.44.

    [41] Department file, f.43.

11. The above medical evidence indicates that the applicant was asymptomatic and engaging in regular physical exercise [when] he was first diagnosed with severe or significant [specific heart condition] in November 2010. According to his evidence at the hearing he had also been working in non-sedentary jobs. Specifically, the applicant stated that when he first arrived in Australia he worked [in an occupation] and then in housekeeping and had been [an occupation 1] for the preceding eight years. The medical evidence indicates that the operation the applicant had in February 2014 to [achieve an outcome] was successful and that the applicant recovered well. There is no indication, as the applicant suggested in his written statement, that he suffered symptoms after the operation which he had not reported before the operation such as fatigue and an inability to absorb nutrition from food. This raises doubts about those claims and suggests a lack of reliability in the applicant’s evidence about his health.

12. I questioned the applicant at the hearing about his condition and put to him that information I had[42] and the medical evidence he had provided suggested that he had had a potentially serious heart condition which had been dealt with by the operation. The applicant responded that the operation had been successful and he may be fortunate enough to live a little bit longer. The medical evidence does not suggest that the operation only succeeded in extending the applicant’s life a little. That seems an exaggeration. The applicant added that he had to do blood tests every two months, see his surgeon for follow-up every six months and needed medication every day. He said that would not be possible in Nepal. I noted that the last medical evidence the applicant had provided was a May 2015 document relating to a future scan and there was no medical evidence before me about the current state of his health, medication, prognosis, check-ups. The applicant said he could provide that evidence within two weeks. I agreed to await that evidence.  After the hearing the applicant submitted a letter from a GP dated 3 June 2019. The GP states that the applicant had had a severe cardiac condition, [the specific heart condition], and had very successful open-heart surgery five years ago; that the applicant needed to take [Medication 1] his whole life to [maintain a specified condition], regular blood tests to check the [Medication 1] level and regular cardiac follow-up with his specialists.  The letter also states that the applicant can work but must avoid carrying ‘heavy stuff’ and is able to look after himself. The letter does not indicate that the applicant suffered from fatigue, an inability to absorb nutrition, difficulty sleeping or coping difficulties. 

    [42] See fn.33.

13. While I accept on the medical evidence that the applicant had severe [specific heart condition] in the past I find that was successfully and significantly addressed by the operation in February 2014. I accept on the medical evidence that the applicant will need to take [Medication 1] his whole life and accept on the basis of the GP letter that the applicant requires regular [tests] and cardiac check-ups. I find on the medical evidence that the applicant no longer has [the specific heart condition] and while he must avoid carrying heavy objects the condition he had no longer has a significant impact on his day to day life.

14. The applicant’s claim that he would not be able to access the medical treatment he would require in Nepal is based on assertion. Due to his lack of credibility, his tendency to exaggerate or inaccurately reflect the state of his health, and the following reasons I do not accept his assertions in the absence of credible independent supporting evidence.

15. I noted at the hearing that the applicant had not provided any evidence to support his claim that he would not get medical treatment in Nepal, that the medical evidence he had provided and information I had obtained indicated that his condition had been dealt with successfully by the operation, that his prognosis seemed very good and it did not seem he would need further significant medical treatment. The applicant responded that he gone to the [Hospital 1] which is regarded as one of the top [hospitals] for a check-up but they said he had no problem, they diagnosed him as normal. He said he had heard of a case of a child who had the same condition he had who was given the wrong blood in a transfusion. He said he lived in a rural area and it would not be possible to attend regular check-ups. If he skipped his medication he would bleed and die; he needed regular [checks] and to adjust his medication accordingly which was not possible in Nepal.

16. However, the 2011 medical report from the [Hospital 1] does not state that the applicant was ‘normal’ at all. It notes that the applicant had been diagnosed with [symptom] and severe [specific heart condition], a diagnosis referred to in the earlier 2010 [Health Service 1] report and 2010 [Health Service 1] letter. The [Hospital 1] report concludes that the applicant had [specified symptoms]  That assessment is consistent with the information in the 2014 discharge summary which refers to the applicant having had [those specified symptoms] and while the [Hospital 1] report states the applicant had ‘moderate’ rather than ‘severe’, ‘significant’ or ‘fairly severe’ [specific heart condition] as stated in the Australian medical documentation, the assessment of moderate [specific heart condition] does not amount to a finding that the applicant was ‘normal’. Not only did the applicant inaccurately describe the [Hospital 1’s] assessment of his condition, the fact the applicant was able to undertake a test and obtain a diagnosis in Nepal from what he said was a highly regarded hospital which was consistent with the medical diagnoses he received in Australia undermines his claim that medical standards in Nepal are universally inadequate.

17. Further, asked whether he had made inquiries to substantiate his claim that he would not be able to access the check-ups he needed in Nepal, the applicant stated that there was only one place in Nepal where he could do the [his specific] test and he did not know where that was. I do not find it believable that the applicant could have found that there was one place in Nepal he could have [this] test but not ascertain where that was. The applicant also claimed he would be unable to reach the place to have the test in time due to political instability in Nepal. It is not credible that the applicant could conclude he would not be able to reach a place due to political instability if he did not know where that place was. Further, the country information I have referred to above indicates that there has been a considerable period of political stability in Nepal. When I put that to the applicant, he claimed Nepal was suitable only for the rich and powerful who got better treatment and that treatment was not possible or was hard for people like him and that the internet only portrayed the positive news. I prefer the information I have referred to above that there is political stability in Nepal to the applicant’s broad assertion that the ‘internet only portrays positive news’. Further, wealth is not relevant to the matter of political stability. If the applicant was genuinely concerned about whether he could afford to access [Medication 1], regular [specific] tests and adequate cardiac check-ups in Nepal I expect he would have made specific inquiries about that and been able to provide more specific oral evidence or documentary evidence about the cost and lack of availability of the medical treatment he would require. Instead he relied on very general and vague assertions that it would be unavailable, inadequate or unaffordable.

1. Additionally, according to the DFAT Report[43] the constitution of Nepal guarantees access to basic health services as a fundamental right, free essential services including essential drugs are available, a variety of health care services exist, and hospitals in urban areas like Kathmandu tend to provide a wider range of medical services. I discussed the information with the applicant at the hearing. He stated that such health care may be available in Kathmandu but there were regions of Nepal where medication was not available and a person who needed urgent treatment could die. I note that the applicant claims to be from a remote rural area of Nepal and stated more than once at the hearing that he may bleed to death before being able to reach the services he needed. I thus put to the applicant that it seemed reasonable for him to relocate to Kathmandu to access health care services there. He said the people who had attacked and threatened him were still searching for him, threatening his family and if they discovered he had relocated to Kathmandu could easily come to Kathmandu. However, I have rejected the applicant’s claims that he was attacked and threatened in the past and found that there is not a real chance he will be harmed by Maoists or YCL if he returns to Nepal. I thus do not accept that his family have been threatened or that Maoists, YCL or anyone else will try to locate him in Kathmandu to harm him.

   [43] DFAT Report, [2.18]-[2.20].

2. In relation to the discrimination the applicant would face and hence his ability to work, subsist and meet any medical costs, the applicant stated at the hearing that he cannot do hard work due to his condition and he could not get an easy job because people would discriminate against him due to his condition. I questioned that given he had been able to work as [an occupation 1]. The applicant stated his friends helped with carrying heavy things and his employer was kind but that would not be the case in Nepal where he would have to do everything himself and carry heavy objects. I questioned the applicant’s assertion that no employer in Nepal would accommodate the applicant as his employer had in Australia. The applicant replied that the difference between Australia and Nepal was like heaven and hell, there were many unemployed in Nepal, even the most capable could not find employment so he did not think an employer would give him, a person who was sick and had a restricted capacity to work, a job over a capable person. However, I have found that the applicant no longer suffers from [the specific heart condition] and the only restriction he faces is avoiding carrying heavy objects. Other than that, he is fit to work. Further, he has [number] years of education according to his protection visa application and has nearly 20 years of work experience in a range of jobs. The applicant stated in his protection visa application that he worked in his parents’ business in Nepal for about 8 years, at the hearing he stated that he worked in agriculture after completing school and then helped in his mothers’ [business], and in Australia he worked in [several specified occupations]. That indicates that the applicant has skills and experience and ability to adapt to different jobs which would make him employable. I do not consider it credible that Nepali employers would generally refuse to employ the applicant if the job does not require heavy lifting.

3. I asked the applicant about the claim that he would be discriminated against by conservative people. He responded that many uneducated people did not know the value of people, as a sick person he would be regarded as a person who has passed away and was not able to do anything in his life. He said literate and illiterate people would have similar thoughts. I questioned how people would know about his health given it was not obvious and put to the applicant that I expected there would be many people in Nepal who had conditions that required medication and regular check-ups, for blood pressure for example, but I had not found evidence to indicate such people faced serious harm or significant harm. The applicant stated that he knew his society well and how disabled and sick people were treated. He said there was a big difference between the medical treatment in Australia and Nepal, the treatment in Nepal would be like dying. He would have the pain and no one else could imagine it. Again his response was vague and general.

4. I find on the basis of the DFAT information that there is a real chance that the medication, tests and check-ups the applicant requires would be available in Kathmandu. I find that it would be reasonable for the applicant to relocate there to access that treatment. He provided no reasons other than those based on the political claims I have rejected for not being able to relocate to Kathmandu. Further, he has shown he has the capacity to relocate by adapting to life in Australia. He has had [number] years of education and considerable work experience. It is plausible that some people with disabilities and ill health in Nepal experience discrimination in areas of life including employment especially where their disabilities and ill health significantly impact on daily functioning and ability to work. However, there is no credible independent evidence to suggest that the applicant whose only limitation is carrying heavy objects would be subjected to discrimination and denied employment so that he could not earn a living, survive and meet any medical costs not covered by the free health services provided in Nepal. There is no credible independent evidence before me nor does it seem plausible that there is a real chance that the applicant would be subjected to discrimination conservative or other people rising to the level of serious harm or amounting to significant harm as defined in s.36(2A) because he had [a specific heart condition] in the past, has to avoid carrying heavy objects, takes medication, and needs regular tests and check-ups. I conclude that there is not a real chance that the applicant would be subjected to serious harm or suffer significant harm in Nepal for reasons related to his health.

   Concluding findings - s.36(2)

5. Having regard both individually and cumulatively to the findings I have found made that there is not a real chance that the applicant will be harmed by Maoists, YCL or anti-monarchists for reasons of political opinion or subjected to serious harm for reasons related to his health if he returns to Nepal, I find that there is not a real chance that the applicant will be persecuted in Nepal for reasons of race, religion, nationality, member of a particular social group or political opinion. Therefore, the applicant is not a refugee as defined in Article 1A(2) of the Refugees Convention and I am not satisfied that he is a person in respect of whom Australia has protection obligations under the Refugees Convention. The applicant thus does not satisfy the criterion set out in s.36(2)(a).

6. As I concluded that the applicant did not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). Having regard individually and cumulatively to my findings that there is not a real chance that the applicant will be harmed by Maoists, YCL or anti-monarchists for reasons of political opinion or suffer significant harm for reasons related to his health if he returns to Nepal, I conclude that there are not 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 will suffer significant harm. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

7. 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

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

   Mila Foster
   Member

   
   

   ATTACHMENT

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   International Institute for Democracy and Electoral Assistance (International IDEA) 2015, Nepal’s Constitution Building Process: 2006-2015, 1 November, accessed at

   Kramer, Karl-Heinz 2013, ‘Elections to a Second Constituent Assembly in Nepal’, Think South Asia 11, 15 December, accessed at

   Kramer, Karl-Heinz 2018, ‘Nepal after the elections: Hope for political stability’, Nepal Observer, Issue 48, 27 May, accessed at Tom (ed.) 2019, Political Handbook of the World 2018-2019, Volume 2, Sage Publications.

   myRepublica 2016, RPP-N, RPP unite formally, 20 November, accessed at

   The Carter Center 2011, Clashes Between Political Party Youth Wings Have Decreased But YCL And UML Youth Force Continue To Seek Financial Gain,  28 February, accessed at Carter Center 2014, Political Transition Monitoring in Nepal, 2009-2014 - Final Report, 20 August, accessed at

   The Himalayan Times 2016, Maoist parties unite to form CPN Maoist Centre, 19 May, accessed at

   The Himalayan Times 2016, ‘RPP merges with RPP-N’, 21 November, accessed at

   United States Department of State 2016, 2015 Country Reports on Human Rights Practice – Nepal, 13 April, accessed at