1606379 (Refugee)

[2017] AATA 1659

1606379 (Refugee) [2017] AATA 1659 (6 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606379

COUNTRY OF REFERENCE:                  Nepal

MEMBER:David McCulloch

DATE:6 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 06 September 2017 at 9:47am

CATCHWORDS

Refugee – Protection visa – Nepal – Political opinion – President of youth group – Anti-separatist advocate – Persecution by Madeshis and Tharus – Credibility issues

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 438, 499

Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA(1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] 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 [in] October 2015.

3. The Tribunal conducted two hearings with the applicant on 18 July 2017 and 10 August 2017, respectively. Communication was assisted in the hearings with the use of an interpreter in the Nepali language.

   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 DFAT Country Report – Nepal, 21 April 2016, a copy of which was given to the applicant in the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Background and claims

11. The applicant arrived in Australia [in] September 2015 on a [temporary] visa that had been granted [in] August 2015. The application for the Protection visa was lodged [in] October 2015.

12. The application forms in relation to the Protection visa indicate the following. The applicant was born on [date] in [Village 1], Chitwan, Nepal. The applicant indicates that he lived in this town from birth until March 2013. The applicant is a Hindu. He lists his occupation as small [business] operator in Nepal.  The applicant indicates that he is married but does not indicate the date of the relationship or of the marriage. The applicant lists his mother and father living in [Village 1], Chitwan. The applicant lists his wife [and children] living in the same town. The applicant indicates that he is in contact with relatives by phone daily.

13. The applicant attended secondary school from January [year] until January [year]. He indicates that he withdrew from studies. From October 1983 into April 2012 the applicant was unemployed/studying.  From April 2012 until March 2013 the applicant was the owner/operator of a small [business] in [Town 1], Bara, Nepal. From March 2013 until June 2014 the applicant worked in [an occupation] in [Country 1].  From June 2014 until August 2015 the applicant was the owner/operator of a small [business] in [Town 1], Bara, Nepal.

14. The applicant provided a statement in Nepali as part of the application, with a translation. The document provided as follows (not corrected for spelling or grammar):

    My grandfather was born in [a] Village of Dhading District. His occupation was farming and would hardly earn bread from the farming. He got married [and] my father [is] one of their sons. They could not sustain life in Hill; therefore they migrated to [Village 1] of Chitwan District. But, my father was born in Dhading itself.

    My father also embraced agriculture as his profession to obey the direction of grandfather. He got married with [his wife]. They gave birth to [children] among whom I am [one].

    Dear Sir, the anarchy of the Mukhiya (highest local authority in feudal system) was at its optimum level. With bearing all those trouble, my parents admitted me in the school. I also studied up to class [grade] with assisting my father in his work. After that I could not join the higher education because of the economic condition of my family. I joined the struggle against the Feudal system and the system was abolished with the declaration of Multiparty Democracy in 1990. Though I could not continue my study, I kept myself busy in social work. I established a youth club and continued to raise voice for the suppressed ethnic group and made them aware about their rights.

    Later on, I came to know that I was regarded as the upper caste elite and was accused of hijacking their rights by Tharuwan. I was in target of them. That is why, I was compelled to fly [Country 1] for my own safety. I got back in two years from [Country 1]. In [Country 1] also, Tharuwan leaders [and] others threaten me to death. That is why I returned back to Nepal in 2 years given that the situation was comparatively peaceful. I would like to inform you that I had worked in [Country 1] as [occupation].

    I opened one [business] in [Town 1] after coming back to Nepal. My [business] was going well. In the meanwhile, again Tharuwan and Madhesh movement started. Tharuwan took the old issue and closed my [business]. They came to my home at midnight and beat me till I was unconscious. I came to know that I had a serious injury in my head as I became conscious in [a] hospital bed in Kathmandu. I could not get back to my home which was at Madhesh. So, me and my wife started to stay in Kathmandu in rented room. In Kathmandu also, Pahadi organizations started to torture us knowing that my house is in Tharu village in Madhesh. They threw my belongings in the road and threaten me to be back to my village. They also gave threat that they will kill us if we did not leave the place. We reported the case to police also. But, Police also did not favor me. That is why I left my wife to her parents' house and I kept hiding in a hotel in Kathmandu. In the meantime, I [became] member of [an] organization. During that time I met [a person who] informed me that he was coming to Australia for a program and was ready take some of [his members] who are willing to join him. That offer gave me a hope to save my life being in this country. As I landed In Australia, I became sick and was in complete bed rest. Due to which I could not participate in the program. I have nobody in this land. I had gone through a lot of trouble which I am saying to you. I am writing this application with the great hope that you will allow me to stay in your country.

    At last, I would like to inform you that I have not taken any papers from Nepal as I had to rush to Australia to save my life. I am very much hopeful that you will save my life by allowing me to stay here rater sending me back to Nepal to meet the terrible death. I hope Australia offer me a shelter and save my life.

15. In the second Tribunal hearing the applicant showed the Tribunal prominent scars on his skull apparent from his shaved head. He indicated that these were caused during the attack in [Village 1] (in July 2015).

    Independent information

    Political and security situation

16. The following information is provided from a Background Paper – Nepal: Maoists in Nepal, prepared by the former Country Advice section of the Refugee Review Tribunal, issued 7 June 2013 and reviewed in December 2013:

    Violence and intimidation remain features of Nepal’s political landscape; though no longer on the scale that it was prior to the 2008 constituent assembly elections, or during the war.[1] Members of the UCPN-M [Unified Communist Party of Nepal – Maoist] and associated groups have contributed to this culture of violence; the ICG posits the argument that as cadres of a Maoist revolutionary party, some members of the UCPN-M continue to believe that violence can be a legitimate political tool, particularly as a means to “resist oppression”.[2] Another contributing factor to Nepal’s violent political culture is the ongoing impunity enjoyed by cadres of numerous political parties.[3]

    Prachanda and other leaders of the UCPN-M have stated that political violence needs to be eliminated; indeed following the pre-election violence of 2008, Prachanda reportedly stated that violence perpetrated by Maoist cadres and the YCL had undermined the legitimacy of the party, and he vowed to de-militarise the YCL.[4] While the level of political violence no longer reaches the levels of 2008, UCPN-M cadres, particularly in remote regions of Nepal, continue to be implicated in violent acts against political rivals and others, including journalists.

    [1] Racovita, M et al 2013, In Search of Lasting Security: An Assessment of Armed Violence in Nepal, May, pp.17-18, 21 < Accessed 22 May 2013

    [2] International Crisis Group 2010, Nepal’s Political Rites of Passage, Asia Report N°194, 29 September, pp.4-5, 7-10 <Attachment>; see also Racovita, M et al 2013, In Search of Lasting Security: An Assessment of Armed Violence in Nepal, May, pp.17-18, 21 < Accessed 22 May 2013

    [3] United Nations 2011, Report of the United Nations High Commissioner for Human Rights, 16 December, p.15

    [4] Bangerter, O 2012, Internal Control: Codes of Conduct within Insurgent Armed Groups, Small Arms Survey, November, p.49 < Accessed 19 April 2013; Upreti B R & A 2012, Conflict, Transition, and Challenges to Nepal’s Peace Process, January, p. 14, Nepal Centre for Contemporary Research < Accessed 27 May 2013

17. Subsequent information about political violence in Nepal is contained in a report prepared in January 2015 by the Country of Origin Information Section of the Department of Immigration and Border Protection in response to a request from the Tribunal. It contains the following information:

    Reports located indicate that inter-party violence amongst Maoists and the Nepali Congress has diminished considerably in recent years. During 2014, there were no reports of inter-party violence in general across Nepal.

    According to the South Asia Terrorism Portal’s 2015 assessment of Nepal, no violent inter-party clashes were reported during 2014:

    The successful holding of elections for the second Constituent Assembly (CA) on November 19, 2013, have, in some measure, transformed the political environment of the country and diminished violent inter-party clashes. As against 22 such clashes resulting in four deaths and 167 injuries in 2013, no such clashes were reported through 2014.[5]

    [5] South Asia Terrorism Portal 2015, Nepal Assessment 2015, n.d., para.2 < Accessed 27 February 2015 CISEC96CF1246

    South Asia Terrorism Portal’s 2014 assessment of Nepal reported that 2013 was the first year of no reported insurgency-related violence. Political violence however did increase during 2013:

    … political violence did increase considerably during 2013. Activists of political parties clashed with each other on at least 22 occasions resulting in four deaths and 167 injuries. There were four such incident resulting in seven injuries and no fatalities in 2012. Further, activists of political parties clashed with law enforcement personnel on at least four occasions in 2013, with 14 persons injured.[6]

    On 27 May 2013, Business Standard reported that the ‘Nepali Congress today accused UCPN-Maoist cadres of attacking its youth leader and abducting an ex-Maoist who had defected to the party’. Repordedly, Maoists pelted stones at the vehicle that the youth leader and central committee member Gagan Thapa were in. Additionally, Jeevan Khatrichhetri, who defected from the UCPN-M was reportedly abducted by the UCPN-M.[7]

    The recent attempts to promulgate a constitution resulted in UCPN-M led violent outbreaks and nationwide protests:

    … In a clear manifestation of growing political volatility in the Republic, opposition members of the CA, led by UCPN-M, vandalized Parliament and attacked ruling party leaders and security staff, leaving four security staff members injured, on January 20, 2015. Again, on January 22, 2015, opposition CA members threw microphones and shoes at the members of the ruling alliance. On this day, protests also erupted across Nepal, in which several persons were injured and a substantial quantum of property was damaged. In fact, as the deadline for the Constitutional draft approached, protests and bandhs (general strikes) became the order of the day. Significantly, during one such bandh enforced by the UCPN-M-led alliance, which turned violent in several parts of the country, a protester, identified as Rajaram Jha (25), died at Bhramarpurachok in Dhanusha District on January 12, 2015.[8]

    According to a 25 February 2015 report, the UCPN-Maoist youth wing (Young Communist League) staged a March in Kathmandu on 24 February to express their intent to rally on February 28.[9] The 28 February protests resulted in injuries to several policemen, protestors and onlookers as police baton charged and used tear-gas to control protestors in New Baneswaor.[10]

    [6] South Asia Terrorism Portal 2014, Nepal Assessment 2014, n.d., para.2 < Accessed 27 February 2015 CIS2F827D92146

    [7] ‘Nepali Congress claims Maoists attacked party leaders’ 2013, Business Standard, 27 May, para.8 < Accessed 27 February CXC28129413976

    [8] South Asia Terrorism Portal 2015, Nepal Assessment 2015, n.d., para.2 < Accessed 27 February 2015 CISEC96CF1246

    [9] Jayshi, D 2015, ‘Nepal Maoist youth wing stages show of strength’, The Hindu, 25 February, para.1 < Accessed 27 February 2015 CXBD6A0DE2008

    [10] ‘Opposition Protest’ 2015, Nepali Times, 28 February, para.5 < Accessed 3 March 2015 CXBD6A0DE2133

18. The recent DFAT Country Report – Nepal, 21 April 2016 provides as follows:

    The overall security situation throughout Nepal has dramatically improved since the end of the conflict. However, poverty, unemployment, weak rule of law and a culture of impunity are causes of insecurity in Nepal. Political party interference in security processes and criminal investigations further undermining effective security and justice. Political protests and demonstrations occur regularly and can turn violent without warning. Political parties the have been known to enforce strikes (bandhs) which can close down transport and business operations for extended periods, although these have occurred less frequently in recent years. There are credible allegations that groups associated with political parties have committed acts of violence, extortion, and intimidation. Violent protests and strikes over the constitution occurred in the far west, mid-west and east in August 2015.[11]

    […]

    Political actors (from all major political parties and smaller identity-based groups) are key elements of Nepali society. Political affiliation, both at an organisational and individual level, is an important aspect of identity. This was a cause of instability during the conflict and in the years immediately following. Political youth wings, bandhs (strikes), demands for donations from local authorities and the private sector, and the obstruction of tender-bidding processes in line with political interests all contributed to this instability.

    A diverse and competitive array of political parties operates in Nepal, though the system has faced considerable instability in recent years. Unlike the 1990 constitution, the 2015 Constitution has no limitation on parties formed along ethnic lines. Prior to the 2013 elections, the political environment suffered instability, including some violence by supporters linked to the main Maoist party on members of other parties, and on people who allegedly informed on the Maoists during the civil war. Supporters linked to the other leading parties were also accused of attacking supporters of the Maoists during 2013.

    At the time of publication, the situation has significantly changed. Nepal’s lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected.

    DFAT assesses that while violence has occurred in the aftermath of the release of the new Constitution and Maoist/and disillusioned splinter groups continue to threaten a return to bandhs and or violence, the overall risk [based on political opinion, actual or imputed] is low.[12]

    Issues in the Terai region, and the Madhesis, Tharus and Pahadi peoples

    [11] DFAT Country Report – Nepal, 21 April 2016, para 2.34

    [12] DFAT Country Report – Nepal, 21 April 2016, para 2.36-3.29

1. The recent DFAT Country Report – Nepal, 21 April 2016 provides as follows:

   In September 2015 protests began in the Terai and continued until early 2016. Led primarily by the Madhesi and Tharu groups, (see ‘Ethnicity’ below), these protests arose in part because of concerns about the demarcation of provincial boundaries under the 2015 Constitution and had a significant effect on Nepal’s industry and economy as they have blockaded the East-West highway at Birgunj, the largest crossing on the border with India. Some figures suggest that only 40-50 per cent of goods and fuel were crossing into Nepal, which further added to the already difficult humanitarian situation faced by Nepal as it recovered from the 2015 earthquake. Nepal’s security forces (mainly police) were heavily involved in responding to the Terai protests and police reportedly opened fire on civilians in some instances. Over 40 deaths, both civilians and police, have been reported. At the date of publication, the protests have stopped and all borders are open following an amendment to the Constitution in January 2016 to respond to the aforementioned concerns.[13]

   […]

   Many of the Madhesis (the name given to the inhabitants of the Madhes or Terai region) are of Indian origin with strong socio-cultural and ethnic linkages across the border. The term ‘Madhesi’ refers specifically to non-tribal, caste Hindus of Indian origin that live in the Terai. Many Madhesis consider those living in the Terai who do not fit this definition (including Muslims, Tharus, Pahadis, and indigenous groups who predated Madhesi immigration) to be ‘foreigners’. Less than 50 per cent of the Terai population are Madhesi, and many people from other parts of Nepal have moved to the region seeking jobs.

   Madhesis comprise around 20 per cent of Nepal's population but are underrepresented in politics, public service jobs, and the military. Hindi-speaking Indian Madhesis were historically denied citizenship certificates (and therefore also land and access to government benefits) under the Citizenship Act of 1964 and the Constitution of 1990 owing to Nepali language requirements. The citizenship law was amended in 2006 to allow people born in Nepal before 1990 and those residing there permanently to acquire Nepali citizenship, but this law contained a short window period for Madhesis to claim citizenship that closed in November 2008. The 2015 Constitution seeks to address this issue.

   Efforts by the government to introduce compulsory Nepali language in the region have been seen as a further attempt to discriminate against the Madhesis. Economic and political favouritism (by way of land allocations) towards the upper caste Pahadis (hill-dwelling Hindus) was introduced under the ‘Panchayat’ system (1962 – 1990). This, as well as allegations of economic exploitation of the resource-rich Madhes region, have exacerbated feelings of discrimination by the Madhesis resulting in decades of political activism and tension between Madhesis and members of other ethnic minorities living in the Terai region. The extent to which such sentiments are shared throughout the entire community is unclear.

   A pro-Madhes autonomy group (the United Democratic Madhesi Front – UDMF) was formed in 2007. The group has signed two peace agreements with the Nepali government with the principal demand being the ‘liberation’ of the Terai region and the creation of a single autonomous unit called Madhes in a new federal system for Nepal. The group has also demanded greater representation in political, military and economic affairs, often at the exclusion of other ethnic groups such as the Tharu in the western regions of the Terai.

   DFAT assesses that Madhesis in the Terai experience moderate official discrimination because of on-going difficulties in obtaining citizenship, which impacts on their ability to access government services. The 2015 Constitution was amended in early 2016 partly in response to Madhesi demands around political representation. Violence in the region remains sporadic, as is evidenced by the protests of late 2015 and early 2016, when upwards of 40 people are reported to have been killed.[14]

   [13] DFAT Country Report – Nepal, 21 April 2016, para 2.35

   [14] DFAT Country Report – Nepal, 21 April 2016, para 2.35

2. The applicant’s representative, in a submission dated 2 August 2017, indicated that there was recently unrest in the Terai due to boycott of elections by Terai based parties. No source information was referred to.

   Hearing, credibility, findings and assessment

3. In considering overall the credibility of the applicant the Tribunal is cognizant 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 claims will be assessed against Nepal.

5. The Tribunal has credibility concerns with certain key aspects of the applicant’s claims as follows.

6. Firstly, the applicant’s claim in the Tribunal hearing that he was a long-time advocate against the interests of minority groups, the Madeshis and Tharus as part of a youth group in his village of [Village 1], in the Terai region, was not convincing to the Tribunal.

7. The applicant indicated in the hearing that he is of the Brahmin Hindu caste.

8. The applicant’s written claims indicate that, after finishing school, he established a youth club to continue to raise his voice for the ‘suppressed ethnic group’ and make them aware about their rights. In fact, the applicant’s claim, as expanded in the hearing, is that, as part of his role as the president of the youth group, the applicant advocated against the separatist interests of the Madeshis and the Tharas.  In the hearing the applicant indicated that these two groups, whilst separate, had similar objectives in terms of pushing for recognition of their particular interests. The aim of the applicant, as indicated in the hearing, was that all Nepalese should be treated equally. In this respect, contrary to the applicant’s written claims that he was raising his voice for the suppressed ethnic group, it appears that the applicant was advocating rights for more mainstream Nepalese. The Tribunal acknowledges that the applicant may have intended to indicate that he was seeking to assert their rights to a unified Nepal, against the separatist interests of various groups in the Terai, who were indigenous to the area.

9. The applicant’s evidence as to the composition of the youth club, in the context of the applicant being president, and advocating against the interests of Medeshis and Tharus, did not make sense to the Tribunal. In the hearing, the applicant indicated that there was a broad make up of many ethnic groups in the village of [Village 1], in which he lived, which comprised about [number] people. The applicant indicated that the youth group was made up of a committee of [number] people and had about [number] members, who comprised a cross-section of the ethnic groups of the village, including Madeshis and Tharus. 

10. The applicant had indicated that he was involved in the youth group from around 2000 until 2013, as president, and he became president again when he returned from [Country 1] in June 2014. The applicant indicated that it was in the years prior to his departure for [Country 1] that he began to advocate issues against Madeshis and Tharu. He continued this advocacy on his return from [Country 1] in June 2014 when he regained the presidency.

11. The Tribunal discussed with the applicant in the hearing how the president was appointed.  The applicant indicated that it would occur by agreement of the membership. The Tribunal put to the applicant that it did not make sense that the applicant would be elected as president of an organisation in which he was advocating against the interests of key members of the organisation, namely Madeshis and Tharu members.

12. In response to this concern the applicant indicated that minority members would not express their disagreement.  The applicant indicated that he was not exactly against these groups but argued that the government should not divide the country based on ethnicity. However, he said that some members were not happy with the applicant’s advocacy as president. The applicant then said that he was elected by the majority, which were the Brahmin members. The Tribunal indicated to the applicant that this appeared inconsistent with what he had indicated earlier that the president was agreed to by the membership. The applicant indicated that he meant by this that it was agreed to by the majority.

13. The Tribunal does not accept these explanations in the context of the applicant’s claims. In the hearing, the applicant had indicated that his advocacy against Madeshis and Tharus in the period leading up to him leaving for [Country 1], had resulted in the applicant being threatened and having stones thrown at his house, and caused him fear to such an extent that, on occasions, he needed to leave [Village 1] for his safety, sometimes for many months.

14. It does not make sense to the Tribunal that the applicant would be advocating as president of a village youth group against the interests of key members. It particularly does not make sense that the applicant would have been re-elected as president on return from [Country 1] if he had been, and was to continue, to act against the interests of key members, namely Madeshis and Tharus.  However the president was appointed, the Tribunal does not consider that the youth group would hold together with a cross-section of membership from the different ethnic groups if the president was advocating against key groups. The applicant provided no evidence that the membership of the youth group fractured.

15. The applicant’s indication in the hearing that he was not putting his position against a segregated Nepal particularly forcefully, was not consistent with the fear that the applicant claims to have faced in the years before he claims to have been forced to flee his village on multiple occasions and to flee to [Country 1] because of his advocacy. This would tend to indicate the applicant was making his points publicly and forcefully.

16. The Tribunal does not accept as credible claims of the applicant being president of a youth group in his village for many years, made up of a cross-section of the village, including Madeshis and Tharus, in the context of the applicant claiming that his key agenda as president was to argue against the interests of those minority groups.

17. Secondly, the applicant’s evidence in the hearing as to difficulties faced prior to leaving for [Country 1] in 2013 was vague and did not seem to justify claims by the applicant that he had to leave the village on multiple occasions, including sometimes for many months, to escape the potential for harm. In the hearing, the applicant referred to people coming to his home and throwing stones. In other evidence, the applicant indicated that the only direct attack on him happened in the incident in 2015 when he returned from [Country 1]. In this evidence the applicant seemed to downplay earlier threats or attacks prior to leaving for [Country 1].

18. If the threats to the applicant were sufficiently serious, it is not clear why the applicant felt it was safe to return to his village after needing to leave on multiple occasions for other areas within Nepal for his safety, particularly given that he was continuing his advocacy. The applicant has explained that he felt the situation had stabilised sufficiently allowing him to return from [Country 1]. Nevertheless, the Tribunal has concerns about this explanation given the degree of antagonism that he claims to have created in preceding years prior to his departure for [Country 1] and in the context of the brewing conflict which escalated 2015.

19. Thirdly, the applicant has not been consistent in claims to have suffered specific threats and adverse action from Pahadis when in Kathmandu. In the hearing, the applicant indicated that the incident in which he was attacked on the head in [Village 1], caused him to be hospitalised in Kathmandu. The applicant indicated that, from this point in time, until leaving for Australia in September 2015, he remained largely in Kathmandu. The Tribunal explored with the applicant in the hearing any difficulties he faced during his time in Kathmandu. The applicant indicated that he was moving from place to place and keeping out of sight. The applicant indicated that, although he feared harm from a variety of groups, he did not suffer any difficulties because he was keeping out of sight.

20. The Tribunal noted to the applicant his written claims in which he said that, when in Kathmandu, Pahadi organisations started to torture him knowing that his house was in a Tharu village in Madesh and had threatened to kill him and threw his belongings on the road. In response to this inconsistency, the applicant indicated that there were some negative comments from Pahadis such as when he was going to the shops. The Tribunal indicated that this was nevertheless different from what is indicated in the written claims. The applicant then said that there was a situation where the landlord of a property he was renting told him that he had to leave, for reasons that were not clear. The applicant did not indicate that this person was a Pahadi or suggest that this person tortured or threatened to kill the applicant.

21. In a submission provided by the applicant’s representative following the second hearing, following a request for clarification by the Tribunal, it was indicated that, after being released from hospital, the applicant stayed in a rented room in [an] area of Kathmandu. He lived there with his family from [June] 2015 until [July] 2015. He was evicted from the home and then stayed in hiding in different places, in a friend’s room and some time in a hotel.

22. In that submission it was clarified that the applicant was attacked in [Village 1] [in] May 2015. He was thereafter in Kathmandu until coming to Australia at the beginning of September 2015.

23. The Tribunal considers that the applicant’s evidence in the hearing is not consistent with the written claims of him being seriously threatened by Pahadis with belongings thrown onto the street during the applicant’s time in Kathmandu.

24. The Tribunal considers that the applicant, in his written statement, has manufactured a claim of being threatened to be killed by Pahadis, with his belongings being thrown on the street by them.

25. Fourthly, the applicant has provided inconsistent evidence as to where he was attacked in 2015. In evidence until the end of the first Tribunal hearing, the applicant maintained that he was attacked in his home in [Village 1].  However, in an additional statement provided by the applicant’s representative following the first hearing, it is indicated that the applicant was attacked in his [business], which was in the different town of [Town 1].  In response to this inconsistency in the second Tribunal hearing, the applicant said that this must be a mistake.

26. The applicant explained that this statement had been prepared by his representative following the first Tribunal hearing and that the applicant had told the representative his story.  The Tribunal has some difficulty accepting that the representative would have confused whether the applicant indicated that he was attacked at his [business] or at his home, in a different town.

27. However, a mistake is possibility, and this matter is not given significant adverse weight.

28. Fifthly, the applicant has provided inconsistent evidence as to where his parents and his wife and children are living. In the hearing, the applicant indicated that, following him being attacked in [Village 1] in 2015, his family decided that it was not safe to continue to live there. His parents moved to [Town 1] where they are now living. The applicant indicated that his wife and children spent time with the applicant in Kathmandu before they moved to live with the parents of the applicant’s wife in a village near Mt Everest. In contrast to these claims, the application form for the Protection visa indicates, at the date of the application, namely [October] 2015, the applicant’s parents and his wife and children were all living in [Village 1].

29. This inconsistency was put to the applicant in the second hearing. The applicant indicated that he put the registered address for his family and parents in the application form rather than their temporary addresses. He indicated that this is standard practice in Nepal.

30. The Tribunal finds it unusual that the applicant would feel constrained in the context of the application for the Protection visa to indicate his family and parents living in the location from which it is subsequently claimed that his family have fled and that there is a fear of returning.

31. Having said that, the Tribunal does make some allowance for what might be customary practice in the Nepal in identifying place of residence and does not draw significant adverse inference from this inconsistency.

32. The Tribunal considers these credibility concerns.

33. The Tribunal notes the information in the DFAT report that, at the end of 2015, there were protests in the Terai spearheaded by Medshi and Tharu groups involving significant violence and a number of deaths. In the context of that independent information it is not implausible that the applicant could have been injured as part of general violence in the Terai. 

34. Having said that, the cumulative impact of the credibility concerns (most particularly the first three) cause the Tribunal concerns as to the applicant’s credibility as to specific claims, and more generally.

35. While the Tribunal is prepared to accept that the applicant has a political view against the separatist interests of the Madeshis and the Tharus, as likely of all those in his ethnic/religious group, who had a more mainstream view for a unified Nepal, the Tribunal is not satisfied that the applicant was a community or public advocate of this position as part of his involvement in a local youth group or on any other basis. The Tribunal considers that the applicant has manufactured this claim to support his application for protection in light of the credibility concerns identified.

36. The Tribunal is not satisfied that the applicant faced any serious or significant difficulties due to being perceived against the interests of Maseshi or Tharus between 2000 and 2013. The Tribunal is not satisfied that the applicant had to flee his village for fear of harm on many occasions between 2000 and 2013. The Tribunal is not satisfied that the applicant travelled to [Country 1] because he feared harm in the Terai. The Tribunal is not satisfied that the applicant was threatened by Tharu leaders in [Country 1] or elsewhere due to his political advocacy.

37. The Tribunal is prepared to accept, in the context of the protests and violence that occurred in the latter half of 2015, that the applicant might well have been perceived in opposition to the interests of the Madeshis and Tharus, by reason of his ethnicity and caste, rather than him being an outspoken political advocate against the interests. The Tribunal is prepared to accept that the applicant and his family may have been caught up in violent incidents which caused him to decide to relocate his family to Kathmandu for safety. The Tribunal is prepared to accept that the applicant was attacked as claimed in July 2015 and was treated in hospital in Kathmandu and thereafter remained in Kathmandu with his family. This period was the buildup to significant ethnic tensions in the Terai region.  The Tribunal can understand that the applicant would have wished to protect himself and his family during this period of tension.

1. However, the Tribunal is not satisfied that the applicant was specifically targeted and attacked in July 2015, because of a long standing adverse interest by Madeshis or Tharus.

2. The Tribunal is prepared to accept that part of the reason that the applicant’s [business] closed down was due to ethnic tensions. However, the Tribunal is not satisfied that the [business] was closed down because of an intention by ethnic groups in the Terai to specifically target the applicant. The Tribunal is inclined to consider that a significant reason for the [business] closing was the fact that the applicant had moved to Kathmandu.

3. The applicant gave evidence in hearing that, after he was injured, his parents moved from [Village 1] to [Town 1], about an hour away, to escape difficulties in [Village 1].  The applicant indicated that they still live there, as do [a number] of his [sisters] who live with their husbands. The applicant indicated that they are facing no current problems in [Town 1].

4. As indicated, the application forms for the Protection visa suggest that the applicant’s parents and his wife and children remain living in [Village 1].  In any event, even on the applicant’s evidence in hearing, there is no evidence that his parents and sisters are suffering any difficulty currently living in the Terai region.

5. The Tribunal discussed with the applicant that the independent information suggests that protests and violence in the Terai has died down. The Tribunal notes the DFAT report which indicates that, as at April 2016, protests had stopped following agreed amendments to the Constitution in January 2016 to respond to the interests of the minority groups. DFAT however does assess that violence remains sporadic.

6. The Tribunal asked the applicant why he could not return to the Terai, particularly to [Town 1], where he operated his [business] and where, he claims, his parents and [a number] of his sisters now live without apparent difficulty. The applicant responded that the Madeshis are in the majority and that they carry guns. Key to the applicant’s evidence in the hearing was that he is targeted over and above his family or other individuals in the area because of his long-term advocacy against the interests of Madeshis and Tharus. As indicated, the Tribunal is not satisfied that the applicant was a long-term advocate against the interests of Madeshis and Tharus as claimed. It is therefore not satisfied that the applicant would be targeted over and above other individuals of his ethnicity and caste as a result of being a long term advocate against the interests of Madeshis and Tharus.

7. In other words, the Tribunal does not consider that the applicant would be particularly singled out for targeting. Given the indication that violence has diminished and the fact that the applicant’s parents and sisters are facing no problems in the Tarai the Tribunal considers that applicant could return to the Terai, either to [Village 1] or [Town 1], without facing a real chance of serious or significant harm. This assessment is also based on independent evidence before the Tribunal which suggests that violence has diminished in the Terai as a result of amendments to the Constitution, albeit that there is some sporadic violence.

8. However, if the Tribunal is wrong, the Tribunal considers the potential of the applicant to relocate within Nepal to an area where he would not be at a real risk of serious or significant harm.

9. As indicated, in the hearing, the applicant stated that his wife and [children] are currently living in a village near Mt Everest with the applicant’s wife’s parents. The Tribunal asked the applicant why he could not relocate to this place. The applicant indicated that the ethnic [people] in the area would not accept him and chase him away. This does not affect his wife because she was born there.

10. The Tribunal assesses the capacity of the applicant to relocate to Kathmandu. The Tribunal accepts the that the applicant was in Kathmandu late May 2015 until coming to Australia in early September 2015 to escape violence in the Terai. The Tribunal is not satisfied with the truth of the applicant’s claim that he was threatened by Pahadis in Kathmandu. The Tribunal is not otherwise satisfied that the applicant effectively remained in hiding during his time in Kathmandu for fear of harm based on coming from the Terai. The Tribunal refers to credibility concerns in relation to aspects of the applicant’s evidence. The Tribunal notes that there is no independent evidence before it that would suggest that individuals from the Terai face a real chance of serious or significant harm in Kathmandu. The applicant indicated that something might not happen straight away, but that anything can happen and that he could be killed. The Tribunal is not satisfied that there is a real chance of this.

11. The Tribunal finds that the applicant was able to live openly in Kathmandu for more than three months without difficulty. That indicates to the Tribunal that the applicant would be able to return to Kathmandu without facing a real chance of serious or significant harm.

12. The Tribunal considers that it would be reasonable for the applicant to live in Kathmandu. In the hearing, the applicant indicated that there was no issue with him obtaining work in Kathmandu. He indicated that he does not want to return there because he faces a real chance of requisite harm. As indicated, the Tribunal is not satisfied of this. The Tribunal sees no basis on which it would not be reasonable for the applicant’s wife and children to live with the applicant in Kathmandu if the applicant were able to work. There is no other evidence which indicates that it would not be reasonable for the applicant to relocate to Kathmandu.

13. On the Departmental file is a Certificate and Notification regarding the disclosure of certain information under s.438 of the Act. That Certificate and Notification is made on the basis that it would be contrary to the public interest to disclose certain information on the Departmental file because it relates to internal working documents and business affairs. The Tribunal does not consider that internal working documents and business affairs justifies public interest immunity under the provision of the Act. In any event, the documents are not materially relevant to the applicant’s claims.

14. In summary, the Tribunal does not accept that there is a real chance of the applicant facing serious or significant harm on return to his home area in the Terai for the reasons indicated. The Tribunal does not accept that the applicant has a well-founded fear of persecution for a refugee criterion reason. The Tribunal also does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, including to the Terai region, there is a real risk that he will suffer significant harm.

15. However, if the Tribunal is wrong, for the purpose of the refugee criterion, the Tribunal would find that the real chance of serious harm, or persecution, is limited to the Terai, and therefore the persecution does not relate to all areas of Nepal (see s.5J(1)(c) of the Act). In particular, the applicant would be able to live without facing a real chance of serious harm in Kathmandu.

16. Similarly, if the Tribunal is wrong in relation to the risk of harm in the Terai, for the purpose of the complementary protection criterion, the Tribunal considers that it would be reasonable for the applicant to relocate to an area of Nepal where there would not be a real risk that he would suffer significant harm (see s.36(2B)(a)). In particular, the Tribunal considers that it would be reasonable for the applicant to relocate to Kathmandu and that there would not be a real risk of significant harm to the applicant in Kathmandu.

17. 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). Alternatively, the Tribunal is not satisfied that any real chance of persecution relates to all areas of Nepal as required by s.5(J)

18. 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). Alternatively, the Tribunal considers that it would be reasonable for the applicant to relocate to an area of Nepal where there would not be a real risk of him facing significant harm, namely Kathmandu, in terms of s.36(2B)(a).

19. 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

20. 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.

    …