1606139 (Refugee)

[2019] AATA 6498

1606139 (Refugee) [2019] AATA 6498 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606139

COUNTRY OF REFERENCE:                   Nepal

MEMBER:David McCulloch

DATE:13 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 13 August 2019 at 2:40pm

CATCHWORDS
REFUGEE – protection visa – Nepal – particular social group – inter-caste marriage – opposition by families – fear of punishment – marriage ended after wife’s return from trip to Nepal – country information – social attitudes and legal protections – credibility – delay in applying for protection – incentive to stay in Australia after student visa ceased and period as unlawful non-citizen – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 438, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Luu & Anor v Renevier (1989) 91 ALR 39

MIEA v Guo & Anor (1997) 191 CLR 559

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA(1994) 52 FCR 437

Yao-Jing Li v MIMA (1997) 74 FCR 275

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Nepal applied for the visa on 27 July 2015. The delegate refused to grant the visa.

3. The applicant appeared before the Tribunal on 31 July 2019. The applicant was represented by his registered migration agent who did not attend the hearing.

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

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

   Mandatory considerations

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration (PAM3 Refugee and humanitarian – Complementary Protection Guidelines, and PAM3 Refugee and humanitarian - Refugee Law Guidelines) and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Report – Nepal 21 April 2016, and DFAT Country Report – Nepal, 1 March 2019 contents of which were discussed with the applicant in the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether, on accepted claims, the applicant meets the criteria for protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and claims

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

19/12/2007

Commenced [visa] application for purposes of studying toward a Diploma of [Discipline 1] at [Institution 1], commencing 10/03/2008

03/03/2008

[visa] granted

[03/2008]

Entered Australia on Nepal issue passport [number], issued [in] 2007 and valid until [2017], evidenced with [visa] in effect till 09/05/2008

09/05/2008

Commenced [visa] Part Time Work (PTW) application

09/05/2008

[visa] PTW granted, in effect until 02/12/2009

24/12/2008

Non-Compliance Notice issued for Low and Non-attendance at Classes, with last study date recorded as 04/11/2008

30/12/2008

Cancellation of [visa] under s116 - Commenced

27/01/2009

Cancellation decision deferred following interview with the applicant in which he raised issues about his Provider, [Institution 1]

14/07/2009

Non-Compliance Notice Outcome — Visa Not Cancelled

02/12/2009

[visa] ceased naturally

03/12/2009 —

03/05/2011

The applicant became an Unlawful Non-Citizen (UNC). He was located by [Suburb 1] Police at [Suburb 1] Railway Station for a Transport Offence.

The applicant was interviewed by a departmental officer. He was asked if he was intending to apply for any further visas in Australia. He responded "No"². He was asked if he had any debts in Australia or overseas. He

responded "No".³   He was asked about his marital status. He responded "Single".⁴ He was asked if there were any reasons why he could not return to his home country. He responded "No".⁵ He was asked whether he was working. He responded that he was a casual construction site laborer, on jobs which were arranged for him by "friends".⁶

03/05/2011

Granted Bridging Visa WE-050, in effect until 04/05/201, conditional upon his undertaking to make acceptable arrangement to depart Australia

05/05/2011 —

31/07/2015

The applicant became an UNC for a second time.

27/07/2015

Commenced Permanent Protection (XA 866) visa application

31/07/2015

Bridging Visa WE-050 granted, in association with Protection Visa application

1. The application forms for the protection visa indicate the following in relation to the applicant. The applicant was born on [date] in Janakpurdham, Nepal. The applicant reads, writes and speaks Nepali, Hindi and English. The applicant is of the Hindu religion. The applicant was married on [in] April 2013 in a Hindu temple, [Suburb 2]. The applicant’s wife is [Ms A] born on [date] born in Kathmandu, Nepal. The applicant lists both parents as living in Nepal and a [sibling] living in [another country]. The applicant indicates one address lived at from birth until June 2006 in [Janakpurdham].  The applicant indicates another address lived at from July 2006 until February 2008 in [Kathmandu]. The applicant obtained his School Leaving Certificate in [year]. The applicant completed his ‘+2’ in [year]. The applicant indicates no employment in Nepal. In Australia the applicant was studying a Diploma in [Discipline 1] from March 2008 until February 2009 from which he withdrew. He indicates that his education provider closed down.

2. The applicant provided a Statutory Declaration dated 21 July 2015 as part of his application stating as follows (not corrected for spelling or grammar):

   1.        I am a citizen of Nepal. I came to Australia as a student [in] March 2008.

   2.       I came to Australia as a student of Diploma of [Discipline 1] at [Institution 1] in Melbourne. I studies at [Institution 1] in the first semester quite satisfactory. During the second semester my financial situation became unstable. Because of the global recession my parents were not able to support me for my studies and I was also not able to find a proper job to support myself.

   3.       I was not able to pay the tuition fees in full in time. However, I was continuing my studies. In the meantime, [Institution 1] was also affected by the global financial crisis and [Institution 1] was closed down. I was not able to continue my studies.

   4.       After the close down of the college I was completely lost and was not able to decide about my future. I lost some of valuable years of my life just wandering around.

   5.       After spending a few years wandering around, I realised that I have lost my visa. When I realised this it was too late to act. I tried to seek help from people I knew. The answer was "Nothing I can do now" and everyone has their version of story of how I will be dealt with by Australian Government, and the bad news about the detention centres. Scared and terrified I started to live.

   6.       In 20111 moved to Sydney. After I moved to Sydney I met a girl from my country. We fell in love and got married despite the social and cultural barriers of being from two different castes.

   7.       I am from a "CHHETRI" caste and my wife is from "BRAHMIN" caste. After the marriage we told our parents about the relationship and the marriage. Once they found about this marriage every person in my family in Nepal were furious. They were not  able to accept our relationship, as the relationship was clearly against the social norms and values. My wife's higher "Brahamin" caste was the obstacle for our relationship to be accepted in my family's "Chhetries" caste.

   8.       The caste system is so deep rooted in our society that every year hundreds of people get killed because of inter-caste marriage. The society calls it honour-killings. Our families are no different as they belong to same society. They have done everything in their capacity to get their hands on us, so that they can punish us for the crime of getting married in different castes.

   9.       Similarly, our relationship was also not accepted by my wife's family. They were clearly against the marriage. Both families have warned us to not to return to Nepal stating that they will not accept our relationship.

   10.      According to Nepali law discrimination based on the caste is illegal. However, the problem is deeply rooted in the society and authorities are not able to punish the offenders of caste discrimination.

   11.      I had enough courage to return to Nepal and start a new life. However, the devastating Earthquake that stroke Nepal recently changed my mind. The country is facing a real problem of rehabilitation and reconstruction. The authorities will not be able to concentrate on the social issues at this stage.

   12.      Further, as our family is not accepting us, we do not have any place to live in Nepal. We both have spent a remarkable period of time in Australia. We both consider Australia our home. We will not be able to leave our home.

   13.      My wife is currently studying in Australia. She will complete her [studies] in 2016. Once she completes her studies and become qualified, we will be able to start a new life.

   14.      I say that, we both fear of social discrimination upon our return to Nepal only for getting married to a person from different caste. The society will ostracize us. We will be deprived of living peacefully in Nepal.

3. The representative provided submissions to the Tribunal on 24 July 2019. The submission refers to country information regarding the Nepalese caste system’s relation to Hinduism, which identifies people according to their place in society. Reference is made to the four castes of Brahmins, Kshatriyas, Vaishyas, and Shudras. The submission refers to a report noting the caste system as a complex social stratification, which operates to transmit a person’s occupation, ritual status, and social interaction and inclusion based on notions of purity and pollution. The submission quotes a report as stating that inter-caste couples are viewed as social deviants.

4. The submission states that, despite anti-discrimination laws on the basis of caste or inter-caste marriage, the Nepalese society does not recognise inter-caste marriages. Reference is made to another report regarding the ongoing caste-based discrimination in Nepal, including from parents with higher levels of education. The submission refers to ongoing discrimination resulting in ostracism, abuse, and death, and notes a news article of a woman repeatedly burnt by her husband.

5. The submission quotes the DFAT report and information used by the delegate, and argues that the anti-discrimination laws in Nepal are not enforced and the applicant would still face a risk of being killed or socially outcast despite the laws. Reference is made to an Amnesty International report regarding Nepal’s failure to enact laws guaranteeing the constitutional rights. Reference is made to a UN report regarding the ongoing failure of Nepalese police to register, investigate, and charge for offences relating to caste-based discrimination. The report also states that police take a passive role in regard to caste-based discrimination. Reference is made to the police’s lack of protection for victims of caste-based discrimination. Reference is made to the assault of a woman in an inter-caste marriage in which the police failed to intervene, and a police officer was involved in the assault.

6. The submission quotes a United Nations Human Rights Council report noting the ongoing incidents and killings due to inter-caste marriages. The submission refers to a report of an inter-caste relationship, in which a Dalit man was poisoned by his partner’s higher-caste family due to the affair. The report notes that police initially sided with the partner’s family, and attempted to suppress the case. Reference is then made to the murder of a Dalit man after his son eloped with a higher-caste woman.

7. The submission states that inter-caste couples face ongoing fear, and that the problems faced by inter-caste couples are not limited to a geographical region in Nepal. The submission notes that urban populations tend to be more accepting, but refers to reports of ongoing dowry violence and social problems in the applicant’s home city. Reference is made to ongoing non-acceptance of inter-caste marriages in Nepal. The submission refers to a report regarding a growth of extrajudicial killings, torture, and caste-based discrimination. The submission refers to the displacement of Pahadiya due to ethnic sentiment, and the further risk faced by the applicant.

8. The submission refers to a report regarding Dalits in Nepal. The report notes that Dalits are not just a group working inferior jobs, but are also people who worked against the norms and values of Hinduism. The submission argues that the applicant faces ongoing stigmatism due to the inter-caste marriage.

9. The submission concludes by stating that the cause for the applicant’s delay in lodging the protection visa was because he intended to stay in Australia and study. The submission states that the applicant’s marriage has ended, due to the applicant being from a lower caste. The submission states that the applicant is blamed by his former wife’s family for causing her to marry below her caste.

   Independent information sourced by Tribunal

   Inter-caste marriages

10. The Tribunal has before it the DFAT Country Report – Nepal, 21 April 2016 which provides as follows in relation to castes and inter-caste marriages:

    Members of Castes

    Nepal's caste-based system of social organisation is guided by the Hindu Varna system - a hierarchical allocation of rights, duties and obligations based on a person’s inherited position (and associated ‘purity’ or ‘impurity’) in society. Caste has a direct and significant impact on a person’s life experiences, including access to education, employment, residence and similar life opportunities.

    Members of the upper castes continue to dominate government and business in Nepal owing to historical practices that prioritised the rights and interests of upper-caste elites. Discrimination on the grounds of caste is still widespread despite being officially outlawed since 1962. This is particularly the case in rural areas although this may be reducing over time. Among the four major caste and ethnic clusters - the Brahmins/Chhetris, the Janajatis, the Dalits and the Muslims - Hill Brahmans have a low poverty incidence of 10.3 per cent, compared to 43.6 per cent for Hill Dalits and 38.2 per cent for Terai Dalits. The poverty incidence among Hill and Terai Janajatis is 28.3 per cent and 25.9 per cent, respectively.

    Lower-caste members (Dalits)

    Dalits make up over 13 per cent of the total population in Nepal. Considered to exist outside the Hindu caste system, Dalits (‘untouchables’) have historically been considered ‘impure’ and, as a result, have been limited to socially-sanctioned roles considered demeaning to other (higher) castes.

    Constitutional protections and the 2012 Caste-Based Discrimination and Untouchability (Offense and Punishment) Act criminalise any discriminatory acts on the basis of caste, as well as customs, tradition, religion or culture, including through the media. Despite these protections, Dalits continue to face exploitation, violence, and social exclusion. For example, local villagers and Hindu priests often prevent Dalits from entering temples, performing religious rites, or participating in cultural and religious festivals. In July 2014, a mob of 60 people attacked a Dalit woman (Maya Sarki) after she reported her attempted rape by an upper-caste man in Morang district. The woman was reportedly smeared with black soot and had her shoes garlanded - practices that affirmed her outcast status. A Dalit rights activist and journalist who had supported Sarki (Manoj Biswokarma) was also physically and verbally abused. The National Human Rights Commission condemned the assault and the district court subsequently fined the perpetrators.

    DFAT assesses that legislative changes and societal attitudes are slowly improving the situation for Dalits in Nepal’s capital and larger cities. Nonetheless, traditionally discriminatory attitudes persist, particularly in Nepal’s rural areas where Dalits experience a high degree of societal discrimination. Violent incidents do occur but generally less frequently than in the past. The National Dalit Commission can face difficulty accessing adequate funding.

    Inter-caste marriages

    There are no legal barriers to inter-caste marriage in Nepal and the government has provided monetary incentives of 100,000 NRs (approximately AUD1, 300) to each inter-caste couple married since 2009. According to one study that examined 123 inter-caste marriages from Banke, Parbat and Shanusha districts between December 2011 and March 2012, 80 marriages were between a Dalit male marrying a non-Dalit female and 43 were between a non-Dalit male marrying a Dalit female. The former type of union was generally more successful. However, overall, success of an inter-caste marriage depends on a range of factors including economic, educational, social and political status. The practice of downgrading one's caste as a result of inter-caste marriage still exists in remote and rural areas. Dalit families involved in such arrangements can risk even further social exclusion and non-Dalit families risk losing their status in society.

    DFAT assesses that inter-caste couples can face disapproval by their families or society. Accusations of criminal activity such as theft, kidnapping, child marriage and rape can be used by the (relatively) higher-caste family to pressure the break-up of inter-caste marriages. Physical attacks and social exclusion by the families can also be imposed on couples in order to force a break-up of the relationship. Women (regardless of their Dalit or non-Dalit status) generally suffer more than men from such attacks, particularly social and familial humiliation.[1]

    [1] DFAT Country Report – Nepal, 21 April 2016, paras 3.30 – 3.35.

1. The Country Advice section of the former Refugee Review Tribunal provided the following relevant information in relation to inter-caste marriages in a report dated 26 June 2012[2]:

   In February 2012, The Nepali Times reported that “[m]igration, urbanisation and inter-ethnic marriages are integrating Nepal like never before. Some mountain districts have lost up to one-third of their original population”.[3]

   Washington-based organisation ‘The Advocacy Project’ reported in 2009 that only relatively small numbers of inter-caste marriages take place annually in Nepal. The organisation also reports that inter-caste marriages have led to severe social ostracism of couples and occasional physical violence, particularly from family members. However, such consequences are commonly associated with inter-caste marriages that involve Dalits (untouchables) marrying non-Dalits. The Advocacy Project states that “[p]arents of non-Dalit often intervene to prevent inter-caste relationships. Some go as far as to forcibly separate their child from a Dalit partner”.[4]

   [2] RRT Country Advice 2012, Country Advice NPL40596, 23 July;

   [3] ‘Identity crisis’ 2012, Nepali Times, 3 February Accessed 20 July 2012

   [4] The Advocacy Project 2009, Inter-caste marriages in Nepal face violence and intimidation, 12 February Accessed 20 July 2010

   Hearing, credibility, findings and assessment

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at [596]. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at [288]), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at [169-70]; Luu & Anor v Renevier (1989) 91 ALR 39 at [45]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA(1994) 52 FCR 437.

3. In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA  (1994) 52 FCR 437 at [451] in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191] where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

4. The Tribunal is satisfied that the applicant is a citizen of Nepal and accordingly his claim to be assessed against Nepal.

5. The applicant provided the following information of relevance in the hearing. The applicant indicated that his relationship with his wife is now over. They separated soon after the applicant’s wife returned to Australia from a visit to Nepal in September 2018. The applicant indicated in the hearing that his wife had returned to Nepal because her mother was seriously ill in hospital. The applicant indicated that up until that point there were no problems in the relationship. The applicant gave evidence that after his wife returned to Australia she indicated that the relationship was over but without giving any reasons at all as to why. The applicant indicated that, although he was not specifically told, he thought this could be as a result of the marriage being an inter-caste marriage.

6. The applicant indicated that he was married in April 2013 but it was not until early 2014 that his family in Nepal clearly understood that he had been married to a person of a different caste and they started to react very negatively to this, indicating that the applicant should separate from his wife. The applicant gave evidence that his wife’s family, when they found out about the marriage, also objected and indicated that the parties should separate.

7. The applicant indicated that the sole basis on which he fears harm in returning to Nepal is due to the inter-caste marriage. The Tribunal noted to the applicant that, based on its research into inter-caste marriage in Nepal, including as contained in the DFAT information extracted, there can be problems for parties in inter-caste marriages.  The independent information indicates that there can be disapproval by families and society to inter-caste marriage. Criminal acts can be used to seek to break up the relationship.

8. However, the Tribunal noted to the applicant in the hearing that the relationship has now ended, which accords with the claimed wishes of respective families. The applicant will not be returning to Nepal in an inter-caste relationship.. On that basis, the Tribunal indicated to the applicant that it would not consider that the independent information before it would establish that there would be a risk to the applicant as a result of having previously entered inter-caste marriage but which has now ended. The Tribunal pointed out that the independent information did not suggest that the risk of harm would go beyond the period after the relationship continued.

9. In response, the applicant indicated that he would be at a risk of harm notwithstanding that the relationship has ended because of the fact that he had entered into the inter-caste marriage. The Tribunal pointed out to the applicant that none of the independent evidence seen by the Tribunal would seem to support this contention. The Tribunal provided the applicant the opportunity following the hearing to provide any authoritative independent information that would counter this view. That is, to specifically indicate that there would be an ongoing risk as a result of having entered into an inter-caste marriage even when that marriage or relationship was over. The applicant indicated in the hearing that he would seek to provide relevant information to this effect. No written response was provided by the applicant following the hearing within the timeframe provided or up until the time that this decision was made.

10. The Tribunal also noted to the applicant in the hearing that he had provided evidence that from early 2014 he had a fear as a result of family reaction to the inter-caste marriage in returning to Nepal. The Tribunal noted, however, that the applicant had delayed for about a year and a half until 27 July 2015 in applying for the protection visa.  The Tribunal noted that the applicant was an unlawful non-citizen at this point in time and the lodging of a protection visa would have made his status lawful through the granting of an associated bridging visa. The Tribunal put to the applicant that in all these circumstances it would have expected that if the applicant genuinely feared for his safety in returning to Nepal from early 2014 that he would have applied for the protection visa at an earlier point in time. In response, the applicant indicated that he took time to explore and ascertain his various options.

11. The Tribunal considers that if the applicant had a genuine fear of returning to Nepal based on his inter-caste marriage from early 2014 that he would have explored and ascertained protection options at an earlier point in time than he in fact did.  This creates some credibility concerns for the Tribunal as to the extent of the applicant’s claimed fears in returning to Nepal based on an inter-caste marriage. The Tribunal notes that both the applicant and his wife, whilst from different castes, are both in the highest ethnic and caste cluster, Brahman and Chhetri. This might be expected to moderate the degree of adverse interest and mistreatment as a result of a marriage between the Brahman and Chhetri castes.

12. The Tribunal considers the applicant’s evidence as to the circumstances of the breakup of the relationship between the applicant and his wife did not convey a sense of the applicant recounting true experiences. It did not make sense to the Tribunal that there would have been no difficulties in the relationship at the point that the applicant’s wife went to Nepal in September 2018 but her returning from Nepal and indicating that the relationship was now over, but without giving any reason. This did not have a ring of truth to it, in the Tribunal’s view.

13. It does not make sense to the Tribunal that the applicant’s wife would have suddenly left the marriage based on the marriage being an inter-caste marriage and expressed disapproval from her family. The wife would have been well aware of the difference in caste and the social implications for this in going into the marriage.

14. However, even if the Tribunal were to accept the claimed circumstances surrounding the separation and adverse reaction by families and Nepalese society towards the marriage, the relationship has now ended.

15. The applicant has claimed that both the families of he and his wife demanded that the relationship be ended once they found out about the marriage. The relationship has now ended therefore meeting the wishes of respective families. The Tribunal considers, including based on independent information, that the risk of ongoing difficulties from families and society as a result of entering into an inter-caste marriage is limited to the period in which the marriage/relationship continues. The applicant has not provided independent evidence which counters this view.

16. Considering all of the claims and evidence, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm on return to Nepal based on having previously been in a marriage and relationship with a person from a different caste given that that the relationship has now ended.

17. The Departmental file contains a Certificate and Notification issued under s.438 of the Act restricting the disclosure of certain information on the file on the basis that the documents are internal working documents and relate to business affairs. The Tribunal does not consider that this provides a legitimate basis for public interest immunity. The Tribunal does not consider that the Certificate and Notification is valid.

18. In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for a reason set out in s.5J(1) of the Act for any of the reasons claimed. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk of the applicant suffering significant harm for the reasons claimed.

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

20. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

21. 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

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

    David McCulloch
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)    the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)    the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …