1610711 (Refugee)

1610711 (Refugee) [2019] AATA 5267 (18 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1610711
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Nathan Goetz
DATE:18 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 18 November 2019 at 9:59am

CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – party membership and activity – threatening letters from Maoists – improved political situation – credibility – inconsistent evidence – long delay before leaving Nepal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who the Tribunal accepts is a citizen of Nepal, first arrived in Australia [in] November 2015 on a [temporary] visa. On 12 January 2016 he applied for a protection visa.
The applicant was not interviewed by the delegate. On 24 June 2016 the delegate refused to grant the applicant the protection visa.
On 15 July 2016 the applicant applied to the Tribunal for a review of the refusal decision. He attached a copy of the delegate decision to his review form.
On 14 November 2019 the applicant appeared before the Tribunal to give evidence and present arguments. He was assisted by a Nepalese interpreter. His migration agent is Mr [A] who did not attend the hearing.
CRITERIA FOR A PROTECTION VISA
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.
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.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
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.
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
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the department file and the Tribunal file. It has considered the contents of both files and considered the applicant’s oral evidence when determining this application.
Non-disclosure certificate – s.438 of the Act
On the department file the delegate issued a non-disclosure certificate in respect of Folios 49-50 of the department file. The certificate certified that paragraph 438(1)(a) of the Act applied to that information because the disclosure of the information would be contrary to the public interest because the information referred to internal working documents and business affairs. The Tribunal is not satisfied that the certificate is valid, because the certificate merely cites the claim for public interest immunity, and does not provide sufficient grounds for that claim to succeed, such as identifying the harm that would result should the information be disclosed. In any event, the information purportedly covered by the certificate neither helps nor hinders the applicant’s claims for protection. The information covered is an Onshore Protection Checklist and an Identification Test for Protection Visa Applicants and does not go to a fact in issue before the Tribunal.
The issues
The issue in this case is whether the applicant is a refugee or a person who meets the criteria for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the complementary protection criteria and holds a protection visa.
The claims
The applicant’s claims are contained in his written application for protection, and no new claims were raised at the Tribunal hearing.
The country of reference for the applicant is Nepal.
The Tribunal accepts that the applicant is [Name] who is a citizen of Nepal and born on [Date]. The applicant provided a copy of his Nepalese passport with his protection visa application. The Tribunal is satisfied that he was a married man at the time of his protection visa application, and that his wife who remained in Nepal passed away in July of 2019 of an illness. The Tribunal is satisfied that the applicant is the father [of a number of children] who remain in Nepal. The applicant himself is one of [a number of] children, although he did not note their details in the protection visa application form.
In his written protection visa application form, the applicant wrote that he lived in Ward [No], [Village 1 Committee], in the district of Parbat in Nepal from birth until ‘current’. From 1982, he was employed in the tourist industry by providing homestay services in [Village 1]. He claimed that he left Nepal because of the Maoist threat, and that if he returned to Nepal that his life would be at risk. His experience of harm in Nepal was threats to kill his family, and he did not seek help within Nepal because Maoists threatened that if he made a report to the police, they would kill his family. He wrote that he did not move or try to move to another area because he was from the Hilly tourist region, and did not move because of his family. He thought he would be harmed if he returned to Nepal because it was a small village and he was known, putting his life at risk. He did not think that the authorities could and would protect him because there was no control or government authority in his area. He wrote that he would not be able to relocate within Nepal because he had family ties in that place.
At the hearing, the applicant told the Tribunal that the form was completed with the assistance of the same migration agent who was presently acting for him. The agent is a Nepalese speaker and asked him the questions in the form and the applicant provided the answers, which the agent wrote down.
The protection visa forms were accompanied by a statement in Nepalese which had attached to it an English translation. The applicant told the Tribunal that the applicant had written the statement in Nepalese, and the migration agent had arranged the English translation.
The statement further clarified that the applicant was born in the town of [Town] in Ward [No] of the [Village 1] development committee in the Parbat district. It detailed his education and his family background.
The applicant wrote that when he was [age] years old, he met a person in his village who was older than the applicant. This person told him that youths such as the applicant should not spend all their time farming and doing household chores, but should do some social work and work for the benefit of society. The applicant found that this person served the community as a member of the Nepali Congress political party and had done much welfare for the village. The applicant wrote that he got an opportunity to learn a lot of things from this person as he met and mingled together. He wrote that he admired his social contributions towards society and liked the person’s principles and philosophies. Due to the inspirations from the Nepali Congress Party’s principles and aspirations, he then wished to become a member of the party and worked for the welfare of people though the district.
After four years working for the welfare of the village and the district, the applicant got a letter from Maoists, who warned him to stop working for the Nepali Congress Party. The applicant wrote that he ignored their instructions and continued working for society. He then received a second letter from the Maoists to abandoned the Nepli Congress Party and to join the Maoists. He was threatened that he would be killed if he did not leave the Naplese Congress Party and join the Maoists party.
The applicant wrote that he was forced to leave his village and left his country to migrate to Australia. A migration broker helped him to enter Australia after paying [amount] million Nepalese rupees.
Evidence given to the Tribunal hearing
The applicant confirmed that he left Nepal because he feared Maoists.
In relation to his previous employment in Nepal, he told the Tribunal that he worked as a farmer from childhood but that he stopped working as a farmer when he left his village of [Town]. He was unemployed in Nepal after that time.
In relation to where he lived in Nepal, the applicant said that he lived in the family home in [Town] from birth but that he left the village due to his Maoist problem. He left the family home, where he was living with mother and his wife (his children were not born yet) in either 2061 or 2062 in the Nepalese calendar. The Tribunal understands this to be the year 2005 and the applicant did not disagree with this conclusion.
The applicant told the Tribunal that he moved to a relative’s house in [Village 2] village, which was located in the Tanahun district of Nepal. He told the Tribunal that his wife moved to [Village 2] at the same time as him, but said later in the hearing that she moved 8 months after he moved there. The applicant told the Tribunal that his children remain in [Village 2] where they are being cared for by relatives, and that his children are all at school. The house in [Village 2] is owned by his wife’s [relative] and the applicant’s elderly mother also lives there.
The applicant was asked to tell the Tribunal more about the difficulties he had with the Maoists in Nepal and he provided the following evidence.
The applicant said that he was involved in the Congress Party and he was asked to be in the Maoist Party and was threatened.
He received three letters from Maoists.
The first letter he received from the Maoists was in 2052 or 2053 in the Nepalese calendar. The Tribunal understands this period of time to be around 1995 or 1996 and the applicant did not dispute this conclusion. He detailed the circumstances of receiving this letter. He said he was not at home when the Maoists attended. When he came home, his mother showed him the letter. When the Maoists attended the family home, they also took food from the family. He was unsure of why the Maoists came to the home, but they demanded money. This was the first time he had any dealings with the Maoists.
He did not report the letter to the authorities because there were no police to report to. The nearest police station would be an hour’s walk away, but the police station was not there anymore as it had moved because of the Maoists. He did not try to go to another police station to report the letter because it would have taken more than a day to walk there. He did, however, speak to other people in the community and was told that the Maoists were doing the same thing to everybody.
The applicant was asked whether this was the only time he ever received a letter from the Maoists. He said that from the period of 2053 to 2062, when he was in [Village 1], he received a total of three letters. After his move to [Village 2], he received no further letters from the Maoists, and had no further dealings with him. As noted previously, this timeframe equates to 2004 or 2005. The applicant told the Tribunal that it was approximately one year between the receipt of the last letter and his move to [Village 2].
He told the Tribunal that he received a second letter in either 2061 or 2062. He told the Tribunal about the circumstances of receiving that letter. It was at night time when the Maoists attended on the family home, and he was told to join their party and pay money, otherwise they would do ‘things’ to him.
He received a third letter from the Moaists about 6 or 7 months after receiving the third letter. The applicant stated that the Maoists repeated the same thing to him.
He told the Tribunal that apart from his hand being held by the Maoists during the attendances, he was never physically assaulted but was talked to, where he was told that if he did not join the Maoists party, he would be physically hurt.
The applicant claimed that he was no longer in possession of the letters he received from the Maoists. He had left them in the family home in [Town] and did not bring them with him because when he left [Town], he did not know he would need to carry these letters with him. The house in [Town] was left empty since the applicant and his family departed and the area has been consumed by forest.
Apart from the attendances on the family home in connection with the letters, the Maoists attended the homes many times, and they were there ‘all the time’.
The applicant told the Tribunal that he joined the Nepali Congress Party in 2052, which the Tribunal understands to be 1995. The applicant did not dispute this conversion. The applicant was asked what made him join the Nepali Congress Party and he told the Tribunal that in his village, you needed to join a political party. He told the Tribunal that the reason he joined the Nepali Congress Party was because he liked the fact that it helped people with things such as housing and providing pensions, and he note that he helped older people in his village do paperwork.
The applicant told the Tribunal that he was introduced to the Nepali Congress Party through his family who were supporters of the party. He knew about this political party growing up.
When asked whether there was a specific event that made him come to Australia in November 2015, the applicant said that he came because he liked to come to Australia. Noting that if the applicant’s claims were to be believed, nothing had happened to him since he left [Town] (which was around 2004 or 2005), the Tribunal asked the applicant what made him decide to travel to Australia in 2015. The applicant said that he could not cope with life, he was poor and could not return to his village.
FINDINGS AND REASONS
The Tribunal has had regard to the 1 March 2009 Department of Foreign Affairs and Trade report for Nepal which provides a helpful context to the applicant’s claims.
According to the report, in 1995 the Unified Communist Party of Nepal (Maoist) (UCPN-M) began a nationwide insurgency against the government leading to a ten-year civil war. Almost 18,000 people were killed and over 1,300 people disappeared before a peace accord was struck in 2006 following an agreement between the Maoists and an alliance of seven Nepali political parties[1]. Nepal has now transitioned from a constitutional monarchy to a federal democratic republic with a new Constitution that came into force on 20 September 2015[2] and the overall security situation throughout Nepal has dramatically improved since the end of the conflict, though the reports notes that elections in November 2017 were affected by violence including political candidates being shot at, improvised explosive devices and landmines being planted and violent protests, with political protests and demonstration occurring regularly and often turning violent without warning[3]. However, the same report notes that with several years of political stability, Nepal now has a lively political environment which provides for diverse political parties and views, and that 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, with the Department of Foreign Affairs and Trade assessing the risk of a return to widespread violence to be low[4]. Maoists have the potential to control the national agenda without resorting to violence, and political opponents of Maoists are assessed as not facing violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants[5]. The Tribunal put to the applicant that it appeared that the political and security situation in Nepal was now very different to the that which faced Nepal during the civil war which may lead the Tribunal to conclude that even if the applicant had experienced the harm he claimed to have experienced in Nepal, there may not be a real chance of serious harm, or a real risk of significant harm to the applicant if he now returned to Nepal. The applicant responded that he had already told the Tribunal his concerns about returning to Nepal.
[1] Department of Foreign Affairs and Trade Report on Nepal, 1 March 2019 at 2.3
[2] Department of Foreign Affairs and Trade Report on Nepal, 1 March 2019 at 2.33
[3] Department of Foreign Affairs and Trade Report on Nepal, 1 March 2019 at 2.41
[4] Department of Foreign Affairs and Trade Report on Nepal, 1 March 2019 at 3.41
[5] Department of Foreign Affairs and Trade Report on Nepal, 1 March 2019 at 3.45
Having considered the material before it, the Tribunal has concluded that the decision under review should be affirmed.
The applicant claims that he will be harmed by Maoists if he returns to Nepal, because he has been harmed by them through verbal threats to him and his family in the past, including by the production of letters from the Maoists. However, the Tribunal is not satisfied that the applicant has ever experienced the harm he claimed for the following reasons.

Firstly, the applicant gave inconsistent evidence about his previous residential history and employment in Nepal. In his written protection visa application, he claims to have lived in the village of [Town] from birth until present, being the time that the visa application was filed. It was during that time that he worked in homestay in the same village development committee which was current at the time of the visa application being filed. In the Tribunal’s view, remaining at the same location and family home where the applicant claimed to have received numerous attendances by the Maoists on the family home, with threats being made, would undermine the claim that those threats occurred, or if they did occur, that the applicant considered those threats to be legitimate. Further, if the applicant and his family were able to operate a homestay business from 1982 until the present time, it would be curious to think that such a business could continue operating noting that Maoists were constantly attending on the family home and making threats for donations, and the Maoists would not have taken action to shut the business down as part of their campaign against the applicant. It is very curious that the applicant would write that he remained in the same place, with the same job, for his entire time in Nepal if he experienced the harm he claimed.
It is for that reason that the Tribunal is satisfied that the applicant was not telling the truth about his family relocating to [Village 2] in around 2004. The Tribunal suspects that the applicant was conscious of the fact that the Tribunal would have real doubts about his evidence if he did not claim to have been forced to relocate to avoid the Moaists, and that it was for this reason that he invented the claim that he had relocated in Nepal. The Tribunal pointed out that the applicant had given evidence about his residential history and work history to the Tribunal that was inconsistent with the evidence he presented in his written application. The Tribunal did so because the inconsistencies suggested that the applicant was not a credible witness. In response to the concern raised by the Tribunal, the applicant said that he only put down his previous address of [Town] because the address where he was staying in [Village 2] was not his house. The Tribunal also queried why the applicant would put down the current address of his wife and children in Question 5 of Form B as [Town] (spelt with a T instead of an I), when, according to his oral evidence, they had been living in [Village 2] from around 2004. The applicant again repeated that this was because the house in [Village 2] was not his house. The Tribunal has considered the response but is not persuaded by it. The forms clearly asked the applicant to detail all previous addresses where he had lived for the past 30 years, and the form expands on this to include any place that the applicant had resided, even those of a temporary nature. Further, the questions about the applicant’s family asked for their contact details, asking for an address. It is not reasonable to think that the applicant would put down a contact address as a family home in a village which has been abandoned since the applicant left the home in 2004 or 2005 and is claimed to be no longer there because it has been consumed by a forest. The Tribunal’s concerns about the applicant giving evidence that the Tribunal can rely upon are further added to by the fact that the applicant specifically said that he did not relocate to another part of Nepal in his written form, and makes no mention of the fact that the applicant relocated to [Village 2] in his written application. To the Tribunal’s way of thinking, this information would be important to include because it would corroborate the applicant’s claims that he was previously targeted by the Maoists and left to avoid such harm continuing. If it was true that the applicant and his family had relocated to [Village 2] as he now claimed, that information would have been included in the written application. There is no reasonable explanation for the failure to detail in the protection visa application that this relocation occurred, other than to conclude that the applicant and his family did in fact not relocate as he claimed at the Tribunal hearing.
The Tribunal is further satisfied that the applicant and his family did not relocate as claimed when it considers that in the applicant’s protection visa application, where he notes that his children, who were born in [years] were born in the district of Parbat, despite the applicant telling the Tribunal that when he and his wife left that district to live in the Tanahun district around 2004 or 2005, which occurred prior to the children being born. The applicant’s explanation for the fact that all of his children were born in the district of Parbat was that his wife returned to her mother’s maternal house in Parbat for the births. If this was the only inconsistency before the Tribunal, and understanding that there may be cultural reasons for a mother to return to her family home to give birth to her children, the Tribunal would not give the birth locations of the children much weight when assessing whether the applicant was a credible witness about what had occurred in Nepal. However, when considered with the failure to detail the relocation to [Village 2] at any time prior to the Tribunal hearing, and the fact that the applicant had put that his children and wife’s address as [Town] at the time of the protection visa application, the Tribunal comes to the conclusion that the reason that the birth of the children is noted as Parbat is not because the applicant’s wife returned to her family home to give birth, but because the applicant and his family never left [Town] as claimed, and that they remained there running a homestay business.
The Tribunal notes that the applicant did not provide copies of the Maoist letters which he claims to have received before he relocated. His explanation for not doing so would be reasonable if the Tribunal accepted his claimed narrative. However, the Tribunal does not accept that he and his wife left [Town] as claimed, and is therefore satisfied that the reason the Maoist letters were not produced with his protection application, or at any subsequent time, is not because they were left at the abandoned family home, but because such letters were never produced by the Maoists. The Tribunal also considers what it considers to be a significant issue about the number of letters directed to the applicant when making this determination. At first blush, whether two or three letters were sent could possibly be seen as a minor inconsistency. However, when considered cumulatively with the other concerns the Tribunal expresses in this decision, the Tribunal does not find the inconsistency to be minor at all. The applicant’s explanation for the inconsistency between what he had written in his letter, and what he told the Tribunal was that at the time he wrote the statement, he could not remember that he had received three letters, and that he later remembered. The Tribunal struggles to accept that the applicant’s memory would improve over time about something as basic as the number of letters he had received from the Maoists. The Tribunal does not accept that the applicant nor his family have ever received any letters from the Maoists as he claimed.
The Tribunal also was not persuaded by the applicant’s evidence about his involvement in the Nepali Congress Party. Remembering that the applicant claimed that he was targeted by the Maoists in part because of his role or support of the Congress Party, it would have been reasonable to expect that the applicant would give consistent evidence about how he came to join the organisation. In the Tribunal’s view, his narrative of how he came to join that political party was considerably different between his written application and his oral evidence to the Tribunal.
In his written application, he wrote of meeting a person who had done so much welfare for his village, whom he learned a lot of things from. The applicant was clearly inspired by this person’s social contributions and principles and philosophies. Finding out that this person served the community as a member of the Nepali Congress Party, with the applicant drawing inspirations from the Party’s principles and aspirations, the applicant himself became a member of the party and worked for the welfare of people throughout the district. His oral evidence to the Tribunal was very different to his written application, which the applicant himself had written in Nepalese. To the Tribunal he said he joined the a political party because in the village you needed to do so, and he made no reference to drawing inspiration from the person who he wrote about in his statement, instead making vague references to the Nepali Congress Party helping people with housing and pensions. He also told the Tribunal that he got introduced to the Nepali Congress Party through his family who were supporters, which was again different to what was written in his written statement.
How the applicant came to be involved in the Nepali Congress Party is, in the Tribunal’s view, relevant to whether he in fact was a member of such an organisation. It would be reasonable to expect that the applicant would be able to give a consistent narrative as to what it was that made him join this party, and clearly from his statement it was this particular individual. The Tribunal pointed out the inconsistency to the applicant and invited him to comment on it, because this inconsistency was of concern to the Tribunal and suggested that the applicant was not being truthful about his past political history. In response, the applicant said that when he wrote his statement it was a different time, and that he ‘maybe forgot’. The Tribunal does not accept that explanation because it does not accept that the applicant would readily forget about the facts leading to him joining this particular political party.
The Tribunal also struggles to understand why the applicant would leave Nepal in November 2015 when, according to his evidence, he did not experience any harm after 2004 or 2005. Noting that he said the ‘feared Maoists’ and was not employed, it is incredulous for the Tribunal to accept that the applicant genuinely feared Maoists if for the past 9 or so years, he had no interactions with them at all. Further, the Tribunal does not accept that the applicant was not employed at the time of leaving Nepal, noting its earlier finding and the reasons for doing so. The applicant’s evidence before is inconsistent, confused and when the Tribunal considers everything cumulatively, the Tribunal comes to the conclusion that the applicant travelled to Australia and lodged a protection visa application for reasons other than those connected to Australia’s protection obligations.
CONCLUSION
For the reasons given above, the Tribunal has found the applicant to not be a credible witness. It does not accept that the applicant was harmed in Nepal as he has claimed, that he and his family had relocated within Nepal, that he had any political profile or role with the Nepali Congress Party, or that he left Nepal because of the reasons he claimed. The Tribunal is not satisfied that the applicant is of any interest to his claimed persecutors in Nepal.
For the sake of completeness, even if the Tribunal were to put all of its concerns about what it considers to be fundamental problems with the applicant being a witness of truth about his previous experience in Nepal, the information about the present situation in Nepal is not supportive of the applicant facing a real chance of serious harm or a real risk of significant harm now or in the reasonably foreseeable future. As noted earlier in this decision, the situation in Nepal is, in the Tribunal’s view, markedly different than the situation during the Civil War, such that a person who was engaged in the claimed ‘community work’ of the applicant and a member of a political party would not face a real risk of serious or significant harm, even if they had been previously harmed in the past, because circumstances in Nepal have changed dramatically.
In any event, when the Tribunal considers this applicant and his particular circumstances, the Tribunal comes to the conclusion that there is not a real chance of serious harm to the applicant or a real risk of significant harm because the Tribunal is not satisfied that the applicant has been previously harmed in the past, whether by receiving letters, verbal threats or attendances on the family home. The Tribunal is not satisfied that the applicant has been politically active in the past and is not satisfied that if he returned to Nepal he would be politically active in the future. It follows that the Tribunal is not satisfied that the applicant left Nepal because of a fear of Maoists as he claimed. The Tribunal is satisfied that the applicant left Nepal and applied for protection in Australia for reasons not connected with Australia’s protection obligations. The Tribunal rejects the applicant’s claims in their entirety. If the applicant were to be returned to Nepal, the Tribunal is not satisfied that he would be of no interest to anyone.
Refugee
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).
Complementary Protection
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). For the same reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). That is to say, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm.
Member of the same family unit
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2019] AATA 5267

18 November 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction