1611346 (Refugee)

1611346 (Refugee) [2016] AATA 4737 (17 November 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611346
COUNTRY OF REFERENCE:                  India
MEMBER:Tony Caravella
DATE:17 November 2016
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 November 2016 at 11:39am

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 [in] July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of India, applied for the visa [in] May 2016. The delegate refused to grant the visa on the basis that the applicant has a right to enter and reside in Nepal, and the applicant has not taken all steps to avail himself of that right. The delegate therefore found the applicant is not owed protection obligations in accordance with subsections 36(3), 36(4), 36(5) and 36(5A) of the Act.
Background and protection claims
In his application for a Protection visa, the applicant declares he was born in [Punjab], India in [year].
In a statutory declaration which accompanied his application for a Protection visa, the applicant declares:
a)He is a member of the Punjabi ethnic group;
b)He is a citizen of India and has no other citizenship or right to legally reside in any other country, whether permanently or on a temporary basis;
c)He fears returning to India because he fears he will be a person at risk of an honour crime and that he thereby faces persecution due to his membership of a particular social group and also faces a real risk of significant harm if he is removed to India;
d)The applicant claims he left India to commence studies in [a course] in Australia in April 2005;
e)In 2007, he was seriously injured in a car accident. He returned to his home in Punjab for a period to aid his recovery. He returned to Australia to complete his studies in August 2008;
f)He claims that after he completed his studies in Australia, the applicant became unlawful. He claims he made attempts to apply for permanent residency through an agent to remain in Australia but was not successful;
g)He claims that because he did not know how to legalise his status he remained unlawful;
h)He met his former defacto partner [Ms A] in September 2014. Over the following year and a half his relationship deteriorated. He became a victim of domestic violence. On a number of occasions she assaulted the applicant and stabbed him on his arms with a knife;
i)He was unable to leave [Ms A] as he became financially dependent on her. She made him stop working and isolated him from his friends. She promised to help him with his visa but nothing happened. She started hitting him. He became trapped in an abusive relationship;
j)In December 2014, the applicant tried to leave the house after being stabbed, but [Ms A]’s mother intervened and convinced the applicant to stay. [Ms A] then asked the applicant to get money from his parents to fund his and [Ms A]’s living expenses as [Ms A] was not working. The applicant claims he borrowed a total of $[amount] from his parents as he was scared of [Ms A] and her family;
k)He claims that after this money ran out, [Ms A] forced him to [commit a crime], but he made sure he was caught on CCTV so that the police would intervene. Not long after he was arrested and was relieved to be separated from [Ms A];
l)Due to his borrowing, his parents went into debt. His brother was furious with him for taking the money from his family as this threatened his brother’s future as well;
m)In December 2015, while over the telephone, his brother threatened to kill the applicant. The applicant fears he faces a real risk of significant harm as a person threatened of an honour crime. He claims honour crimes are common in India and the government is unwilling or unable to prevent these crimes;
n)The applicant claims that there is nowhere safe in India he could relocate to if his brother hires someone to kill him he would be found wherever he lives. The authorities will not be able to protect him from these crimes.
The delegate found, as stated in the decision record, that the applicant first arrived in Australia [in] April 2005 and held consecutive student visas until [December] 2008. He departed Australia [in] July 2008 and returned [in] August 2008. He became an unlawful non-citizen [in] December 2008.
He approached the Department [in] January 2009 and applied for a Bridging Visa E on departure grounds. He was granted that visa which was valid until [February] 2009. He failed to depart Australia and became an unlawful non-citizen [in] February 2009. He remained an unlawful non-citizen for over five years until [September] 2015 when he was arrested and detained by [police] and subsequently convicted of [criminal] offences.
[In] February 2016, the applicant was released from criminal detention and transferred to immigration detention. [In] May 2016, the applicant lodged an application for a Protection visa.
[In] July 2016, a delegate of the Minister for Immigration informed the applicant that the application for the Protection visa was refused. The delegate’s decision record shows that the delegate found the applicant has an existing right to enter and reside in Nepal and that the applicant has statutory effective protection in that country. Accordingly, the delegate found that in these circumstances s.36(3) of the Act provides that the applicant is not a person to whom Australia owes protection obligations.
Application for review
On 26 July 2016, the applicant applied to this Tribunal for a review of the delegate’s decision to refuse the grant of the Protection visa. A copy of the delegate’s decision record accompanied the application for review.
Evidence given at Tribunal hearing.
The applicant appeared before the Tribunal 29 August 2016. He was at the time held at [an] Immigration Detention Centre. He therefore appeared before the Tribunal by way of video conference facility.
The applicant began his evidence by saying that he had a fever but he was given to tablets and he was comfortable to proceed with the hearing.
He confirmed he was born in [year] in [Punjab], India. He said he completed education to [a certain] standard in India.
He told the Tribunal he first arrived in Australia [in] April 2005. He said he began a [course] and completed [a qualification].
The Tribunal referred the applicant to his visa history as summarised in the delegate’s decision record and invited him to comment. He said that after he completed his studies, he tried to get a visa. He said he went to see a lawyer in [City 1] in January 2009 and the lawyer told him to apply for another visa, but he did not have the necessary documents.
The Tribunal asked the applicant why he was an unlawful noncitizen from February 2009 until September 2015. He said this was the case because his visa expired in December 2009 and he believed his agent had lodged another visa application.
The Tribunal asked the applicant why he did not leave Australia when he failed to obtain a further visa. He said his friend’s friend told him to go to [City 2] and that he would get a phone call and the caller could help him to sort out his visa. He said that when he came to [City 2] he did not get a phone call from his friend. He said he stayed with his friend called [Mr B].
When asked to explain why he cannot return to India, the applicant said that [name] is his [brother]. He said [his brother] is about [age] years old. He said he also has [another sibling who] is married. He said [his brother] threatened him because he took too much money from his family. He said he borrowed about $[amount] over the course of three transactions while he was in [country]. He said his father gave the money to his [Relative 1]’s father. He then explained that his [Relative 1] has money [in country] and his [Relative 1] sent him the money and his father sent [Relative 1]’s father money to reimburse him. He said his father sent money in [name]. He said that after this his parents had no more money. He said he met [Ms A] at [a venue] in 2014 and that they lived together in [location].
The Tribunal asked the applicant whether he worked during this time, that is from [February] 2009 until September 2014. He said he did not work at all during this entire time. He said his friend, [Mr B] supported him for the 4 ½ years. He said they lived in [locations]. When asked what he did with his time during this period, he said he does stayed at home and went walking.
The Tribunal asked the applicant what he has told his parents about his circumstances over this time. He said he told his parents that [Mr B] was supporting him. The Tribunal asked what agreement he had entered into with [Mr B] to repay the support he provided. He said there was no agreement. When asked how he met [Mr B], the applicant said that he met him when he arrived in [City 1].
The Tribunal asked the applicant what his parents said when he started asking for money. He told the Tribunal that [Ms A] told him that he could not tell his parents. He then went on to say that he borrowed the following amounts over the period $[amount], $[amount], $[amount], $[amount], $[amount], and $[amount]. He said he has receipts for three of these transactions. He said he told his parents he needed the money to survive.
The Tribunal asked the applicant to explain why [Ms A] made him stop working. He said that he told [Ms A] that he was working. He then repeated that she did not let him work.
The Tribunal asked the applicant how [Ms A] isolated him from his friends as he claims she did. He said she threw his phone in the bin when he was asleep. He went on to say that she planned everything. He said as a result he lost his friends’ contact numbers.
The Tribunal asked the applicant whether he went to the police in light of the claimed abuse. He said he tried to run away from where they lived place once. He then said he stayed with her for one year. The Tribunal told the applicant that it did not seem credible that he could not leave as he claims because of [Ms A] holding his passport and academic documents. He said he did not want to lose his documents.
The Tribunal pointed out to the applicant that his evidence was inconsistent where he claimed to have borrowed $[amount] over three occasions, and not $[amount] over six transactions. The applicant sought to explain this by reference to the receipts that he had provided. He then said that he was told that he did not need to be accurate.
The Tribunal referred the applicant to the advertisement in the newspaper which he had submitted and asked him to explain this. He said his parents disowned him. He said his [Relative 1] sent him this notice by email. The Tribunal asked the applicant what newspaper the advertisement appeared in. He said he could not say but said it was published five or six months ago.
The Tribunal asked the applicant why such a newspaper advertisement would be placed. He said because he has a threat against him and they wanted to protect him. The Tribunal put it to the applicant that this did not seem to make sense. He said his parents went into debt and therefore they disowned him.
The Tribunal asked the applicant when he last spoke to his parents. He said it was seven or eight months ago. He said he told them his brother threatened him and his parents told him they cannot do anything about it.
The Tribunal asked the applicant to explain his involvement in the [crime]. He said that when his family would not give him any more money, [Ms A] said she would burn his documents if he did not participate in the [crime]. He said she forced him to do it on three occasions and on the third occasion he brought [Ms A] into the [shop] and he was caught on closed circuit television. He said the police then came around one or two weeks after the third [crime]. He said [Ms A] did not get charged with the [crime]. The applicant said he pleaded guilty to the charges.
The Tribunal again asked the applicant why he could not go to the police if he feared his circumstances with [Ms A]. He replied that they were living at [location] at the time.
The applicant told the Tribunal that he got [Ms A]’s name tattooed on [himself] and then he discovered her name is in fact not [Ms A]. He then said she is actually a transgender.
He said his brother will physically harm him and the police will not protect him because they will not give him a security guard.
In respect of relocation within India or to Nepal, the applicant said if he goes to some other city or state he will have to give his ID. He said [a relative] works with the police and he could give his brother his address. He said if he stays in India, his brother can trace him with the help of his [relative] who works for the police. He said his brother would also track him to Nepal.
The Tribunal asked the applicant what benefit his brother would gain from harming him. He said if his brother gets rid of him he would get his parents property. He said his parents have a house and maybe have some land in the village. He said his brother can pay Rs.[amount] for a person to kill him. He told the Tribunal that his [brother] does not work. When asked whether he has lodged a complaint with the police about the claimed threats from his brother the applicant said he has not.
The applicant said his brother made the threat to him over the phone 10 months ago while the applicant was in prison. He said his brother told him that whenever he sees him he will get rid of him or get someone else to harm him. He said that prior to this his brother had not made this kind of threat before.
The Tribunal asked the applicant whether he would be confident of finding work in India or Nepal. He said that with his qualification and language he is confident of getting work. He said he is applying for replacement qualification documents.
INDEPENDENT COUNTRY INFORMATION
In addition to the country information cited in the delegate’s decision record, the Tribunal had regard to the country information summarised at Appendix A.
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 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).
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.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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant satisfies the criteria in s.36 of the Act for the grant of a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference and third country protection
The applicant provided the delegate a copy of the biodata page from his Indian passport. This shows the applicant is an Indian national. The Tribunal also notes the applicant provided a copy of his birth certificate to the delegate and that this shows he was born [in] India. Based on this evidence, the Tribunal finds the applicant is an Indian national. Based on that, the Tribunal finds that India is the country of reference, and the receiving country, for its assessment of his refugee claims and for the assessment of his complementary protection claims, respectively.
Credibility considerations
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions including Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997), Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.

In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Foster J stated at 482 that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.” Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
However, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997), the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.
The Tribunal has also considered the published guidelines of the Administrative Appeals Tribunal in relation to credibility:
9. Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.
10. The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.
11. In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true. If, on the other hand, the tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct.3 The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists.4 However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.
The Tribunal carefully considered all of the applicant’s claims individually and cumulatively in light of the above principles, and also in light of the country information cited in this decision record. Having done so, the Tribunal formed the view that the applicant is not a credible witness and that significant parts of his claims are not credible. The Tribunal also found significant inconsistencies in the applicant’s evidence which further undermines the credibility of his evidence.
For example, the Tribunal found in making his claims to the Department, he claimed that he had borrowed $[amount] from his parents over a total of three transactions. However, his evidence before the Tribunal is that he borrowed $[amount] over six transactions. While the Tribunal accepts the above principles in relation to credibility assessment, including that it should not take an over-stringent approach, it considers this particular inconsistency indicative of something more than a slippery memory or confusion, particularly when viewed in the context of all the evidence. The amount of money he claims to have borrowed from his parents is the backbone of his claim to fear harm from his brother. It therefore takes on a heightened significance in this case. In such circumstances, the Tribunal would expect the applicant to have been consistent as to the quantum of the loan and as to the number of transactions over which he claims to have borrowed it. When this inconsistency was put to the applicant at the hearing, the Tribunal found he made a vague and unsatisfactory reference to having receipts and to being told he did not need to be accurate. In view of all the circumstances in this case, the Tribunal does not accept the claimed receipts are reliable and therefore places little weight on them, and it does not accept that he was under the impression that he did not need to be accurate.
However, there are other aspects of the applicant’s circumstances and claims which the Tribunal finds further undermine his credibility. These include the circumstances surrounding the applicant becoming an unlawful non-citizen in Australia on two separate occasions with the latter occasion being for a period of almost 5 years until he was arrested on [criminal] charges. At the hearing, the applicant sought to explain these periods of being an unlawful non-citizen on the basis that he either did not have the necessary documents to apply for a further visa, or that he understood his agent had lodged another visa application. The Tribunal was not satisfied with these explanations. It assesses the applicant to be a reasonably well educated person who has been in Australia since 2005 and capable of taking responsibility for his visa affairs. The Tribunal determined the applicant in fact simply disregarded his visa obligations and that this further undermines his current claims.
Nor does the Tribunal accept, based on the evidence before it, the applicant’s claims that he was a victim of domestic violence or that he was trapped in an abusive relationship as he claims. However, more critically for present purposes, and turning to the reasonably foreseeable future, the Tribunal finds the applicant’s past relationship with [Ms A], who he claims abused him, does not give rise to a real chance or a real risk of serious or significant harm respectively either in India or Nepal, or anywhere else, into the foreseeable future.
Further, in light of all the evidence, the Tribunal does not accept the applicant’s claim that he remained unemployed in Australia for four and a half years and that he was supported financially by [Mr B], a person who he had only met in Australia and who had not put in place any repayment arrangement. The applicant’s evidence in relation to this was most unconvincing, particularly when considered in light of the evidence overall.
The Tribunal also considered the newspaper advertisement presented by the applicant and which he claims indicates his parents have disowned him. Having regard to the negative credibility assessment the Tribunal has made of the applicant, and having regard to its finding that it does not accept he has borrowed money or defaulted in repaying money to his parents or to anyone else, the Tribunal is not satisfied that this advertisement is genuine and therefore places little weight on it in assessing the applicant’s claims overall.
Finally, the Tribunal considered the country information on honour killings as the applicant claimed this formed the basis of an aspect of his claims. Having done so, it finds that most reports of honour killings involved the killing of a female by her own family members who were motivated by opposition to a relationship that the female had with someone deemed inappropriate. Further, the Tribunal notes no reports were found of honour killings of male siblings or of honour killings motivated by financial disputes, and while the Tribunal does not conclude that absence of any reporting is conclusive proof that there have been no such honour killings, the absence of such reporting does suggest it is very rare if it occurs.
The Tribunal considered all of the applicant’s claims and evidence as discussed in the preceding paragraphs, and having done so concluded that it does not accept the applicant is indebted to his parents in the way claimed, or that his brother has made threats to harm or kill him if he returns to India. However, and as also identified in the delegate’s decision record and as discussed with the applicant at the hearing, the Tribunal finds the applicant has a right to enter and reside, either temporarily or permanently, in Nepal, and therefore the operation of s.36(3) results in the Tribunal finding that the applicant is not a person to whom Australia owes protection obligations.
Consideration of right to enter and reside in a third country – s36(3) of the Act
A majority of the Full Federal Court in SZRHU found that the terms of the Treaty of Peace and Friendship (No. 1302, India/Nepal 31 July 1950) (“the Treaty”), while reflecting a mutual right of residence, did not appear to give rights of entry and so did not of itself support a finding of a right to enter and reside in India for the Nepali applicant.[1] However, the Court indicated that the Tribunal should pay regard to the actual terms of the Treaty and also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens satisfy the requisite test of a liberty, permission or privilege lawfully given, to enter and reside in the country.[2]
[1] MIMAC v SZRHU (2013) 215 FCR 35, per Buchanan J at [88], Tracey, Robertson and Griffiths JJ agreeing.
[2] MIMAC v SZRHU (2013) 215 FCR 35, per Buchanan J at [90].
The Full Federal Court remitted the case for reconsideration to determine whether the applicant in that case has a right of entry within the sense described by the Federal Court in V856/00A.[3] Subsequent judgments of the Federal Circuit Court have upheld decisions in which the Tribunal, following this approach, has found that the administrative arrangements for entry, when read in light of the terms of the Treaty, amount to an entitlement to enter and reside consistent with that described in MIAC v SZRHU.[4]
[3] V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408; [2001] FCA 1018.
[4] SZTQO v MIBP [2014] FCCA 2636 (Judge Barnes, 30 October 2014); SZTPK v MIBP [2014] FCCA 2259 (Judge Driver, 31 October 2014) at [24]; SZRUT v MIBP [2015] FCCA 263 (Judge Street, 5 February 2015) at [30].
Having regard to the information before it, the Tribunal finds that the applicant has a right to enter and reside, whether temporarily or permanently, in Nepal and the right is one that presently exists as he is an Indian citizen. The list of documents acceptable to the Nepali government for entry by Indians comprises a range of documents upon which the Nepali government will be satisfied that a person is in fact an Indian citizen. The Tribunal has identified a list of documents (set out under Country Information in Appendix A) that will satisfy the Nepalese authorities that the applicant is an Indian citizen. Having regard to all the evidence, the Tribunal finds the applicant will be able to present one or more of these documents to the Nepalese authorities, for example, he will be able to present his Indian passport.
The Tribunal considers the presentation of the specified documentation is to complement and support the Treaty privileges conferred reciprocally and designed to allow the relevant citizens to access the territory of the other country to allow them to enjoy those privileges, which as observed by Buchanan J, include a privilege of residence in the other country in Article 7. Having regard to all of the evidence, the Tribunal is satisfied that the Treaty and the arrangements between India and Nepal establish a liberty, permission or privilege in favour of Nepali and Indian citizens, including the applicant, and satisfy the test articulated by Allsop J in V856/00A and endorsed by the court in SZRHU.
Having regard to this evidence, and to the terms of the Treaty cited below and the administrative arrangements for entry as summarised in the country information below, the Tribunal finds that the applicant has the right to enter and reside in Nepal for the purposes of s.36(3). Further, on the evidence before it, the Tribunal finds the applicant has not taken all possible steps to avail himself of that right.
The Tribunal accepts that the applicant has not been to Nepal, and that he may have no desire to enter and reside in Nepal. However, that is not relevant under the terms of s.36(3). What is relevant, is that the Tribunal finds that the applicant has not taken all possible steps to avail himself of the right which he currently has to enter and reside in Nepal for the purposes of s.36(3) of the Act.
Section 36(4) of the Act provides that s.36(3) does not apply where the applicant has a well-founded fear of persecution for the purposes of s36(4)(a) or there is a real risk of significant harm for the purposes of s.36(4)(b).
The Tribunal discussed with the applicant that he has the right to enter and reside in Nepal. The applicant submitted that if he went to some other city or state he will have to give his ID. He also emphasised that [a relative] works with the police and he could give his brother his address. He claimed that brother would track him to Nepal. The Tribunal does not accept this claim because it does not accept his claim that he has borrowed the money he claims to have borrowed from his parents, or that he is in any way in default of any loan with his parents, or that his brother has threatened to harm him for this or for any other reason.
The Tribunal has considered if the applicant might experience problems in Nepal, including barriers to employment or an inability to generate an income. The Tribunal notes the applicant has indicated in his protection application that he speaks, reads and writes in English, Punjabi and Hindi. It also notes the applicant has claimed he completed [a course] at [an institute] in [City 1]. The Tribunal also notes the applicant has declared he has worked as [occupations] at various [workplaces] in Australia from 2009 to 2014. Based on this evidence, and based on the applicant’s own statement where he told the Tribunal that with his qualification and language he is confident of getting work in India or Nepal, the Tribunal finds the applicant will be able to find employment to support himself in Nepal. The Tribunal also finds the applicant has no immediate family commitments to a spouse or dependents.
The Tribunal notes that the US Library of Congress reports that there are common ethnic and linguistic identities that overlap the two countries’ borders.[5] According to a 2014 report in The Hindu, cultural affinities and familial ties provide the comfort of familiarity and “perhaps also an instinct for fraternity” between India and Nepal.[6] A separate Hindu article stated that the Indian-origin population in Nepal enjoyed extensive links with people in India including some “with questionable backgrounds”.[7] The Hindu claims “at the people-to-people level, relations between India and Nepal are closer and more multifaceted than between India and any other country”.[8]
[5] ‘Foreign Relations – Nepal’ 1995, United States of America (USA): Library of Congress < Accessed on 22 April 2014, CISNET CX320142
[6] ‘A new template for India-Nepal ties’ 2014, The Hindu, 2 August < Accessed on 8 September 2014, CISNET CX325516
[7] ‘Where big can be bothersome’, The Hindu, 7 January <http:/ / Accessed 10 February 2014, CISNET CX317938
[8] ‘A new template for India-Nepal ties’ 2014, The Hindu, 2 August < Accessed on 8 September 2014, CISNET CX325516
Following the revolutionary war in 2006, there was a period described by the Kathmandu Post’s editor-in-chief (cited in the Hindustan Times) as the most “inclusive” in Nepali history. He states, “the agenda of inclusion and representation of all minorities - ethnic, religious, linguistic and sexual - became embedded in the mainstream political narrative of the country”.[9]
[9] Dutt, Y. 2014, ‘A queer ban in India, gay and legal in Nepal’, Hindustan Times, 19 February < an-in-india-gay-and-legal-in-nepal/article1-1171673.aspx> Accessed on 2 July 2014, CISNET CX318232
The Tribunal also finds reports stating that Indians own commercial establishments in Nepal including enterprises and cinema halls. Reports also state that “there now exists in Nepal a powerful infrastructure which can exploit the existing negativism against India”. The fact that anti-Indian sentiment was fuelled by a belief that Indians exert a “disproportionate influence over Nepali politics and economy” suggests that Indians have significant employment opportunities in Nepal. Indians were also perceived by some Nepalis as engaging in activities such as smuggling and prostitution.[10] Dr Harka Gurung, a prominent Nepali scholar argues in a 2002 Asia Times article that the open border between the two countries is more positive for India and cites “free border trade and limited employment opportunities”.[11] The civil war in the 1990s is said to have harmed the businesses of Nepal’s Sikh community, including those whose forebears migrated from India according to the Republica web source.[12] However, on weighing and balancing all of this country information, the Tribunal finds the applicant does not have a real chance or a real risk of serious or significant harm arising from anti-Indian sentiment, or for any other reason, if he were to be removed from Australia to Nepal.
[10] ‘Where big can be bothersome’, The Hindu, 7 January <http:/ / Accessed 10 February 2014, CISNET CX317938
[11] Adhikary, D. 2002, ‘India, Nepal: Stuck at the border’, Asia Times, 10 February < Accessed 10 February 2014, CISNET CX317925
[12] The Republica website describes itself as “a team of professional management and journalists — one of the best in the Nepali media. Our duty toward our readers is to provide them with impartial news, bold views, in-depth analysis and thought-provoking commentary. We shall do this without fear or favor, and we shall be guided by nothing but our conscience”. (Rai, O. 2014, ‘Sons of Sardars’, Republica (Nepal), 2 July < Accessed 2 July 2014, CISNET CX322745.
The Tribunal has taken into account the applicant’s individual circumstances and accepts that the applicant has never been to Nepal and has may have no desire to go there. It also accepts that he does not speak, read, or write Nepali. However the Tribunal notes that English is widely used as a linga franca among educated citizens and residents of Nepal as English is the sole language of higher education in all the technical, medical, scientific and some of the economics and trade professions.[13]
[13] Languages of Nepal on Wikipedia.org: >
In relation to the right to enter and reside in a third country, the question of reasonableness does not arise as such. Section 36(3) does not permit a decision maker to consider whether the exercise of a right to enter and reside is reasonable, rather, it requires consideration of whether a person has taken ‘all possible steps’ to avail themselves of a right to enter and reside. The Australian courts have confirmed that the phrase ‘all possible steps’ should not be construed as ‘all steps reasonably practicable in the circumstances’, ‘all reasonably available steps’ or ‘all reasonably possible steps’.[14]
[14] NBLC v MIMIA, NBLB v MIMIA (2005) 149 FCR 151 per Graham J at [64], Wilcox J and Bennett J agreeing.

The Tribunal accepts that while the applicant may face some challenges and obstacles in resettling in Nepal, s.36(3) does not incorporate any requirement to examine such matters as a person’s ability to obtain employment or to access welfare benefits upon taking up residence.[15] Nor are Australia’s protection obligations enlivened by virtue of the possibility that a person may suffer privation or be exposed to significant difficulties in maintaining a lifestyle by exercising such a right outside Australia.[16]
[15] SZMWQ v MIAC (2010) 187 FCR 109.
[16] SZMWQ v MIAC (2010) 187 FCR 109 per Rares J at [32]. However, in SZRTC v MIAC [2014] FCAFC 43 at [48].
Having regard to the applicant’s personal circumstances as a young and reasonably well educated man, the Tribunal finds the applicant faces satisfactory prospects of finding employment so that he may at least subsist in that country. The Tribunal notes his claim of being in a motor vehicle accident in 2007, however, there is no evidence before the Tribunal to suggest there any ongoing physical or mental disabilities as a result of that accident and which would impede him from employment or from leading a normal life in Nepal. On the evidence before it, the Tribunal does not accept the applicant would be denied basic services or denied the capacity to earn a livelihood of any kind, such that it would threaten his capacity to subsist. Nor does the evidence before the Tribunal lead it to find the applicant faces a real chance of serious harm or a real risk of significant harm, arising from any economic hardship in Nepal for the foreseeable future.
As previously discussed in the context of his claim to fear harm if he returns to India, the applicant claimed that he fears his brother, either through his [relative], or without him, would track the applicant down in Nepal. However, as the Tribunal does not accept the underlying premise that he has borrowed money or is in default to his parents and does not accept his brother has threatened to harm him, it does not accept the applicant’s brother is motivated to track the applicant down to Nepal, or even to pay someone to do that for him.
Accordingly, the Tribunal finds that there is not a real chance of harm arising from the applicant’s claims for any Convention or non-Convention reasons, claimed, imputed or otherwise, in being removed from Australia to Nepal.
Having carefully assessed all the available evidence before it, and the applicant’s claims both individually and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for a Convention reason in Nepal, for the purposes of s36(4)(a) of the Act.
Based on the available information and the reasons above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right to enter and reside in Nepal that there is a real risk of significant harm, including the applicant will suffer harm by way of him being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subject to torture; he will subject to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, for the purposes of s36(4)(b) of the Act.
The Tribunal has considered the provisions in s.36(5) and s.36(5A) of the Act which excludes the operation of s.36(3) of the Act where a country will return a non-citizen to another country where the non-citizen will be persecuted or face a real risk of significant harm.
The applicant did not claim that he would be refoulé from Nepal to India. The applicant makes no claim that he is wanted by authorities in India for any Convention or non-Convention reason. The Tribunal is not satisfied on the evidence before it that the government of Nepal returns Indian nationals to India or that the applicant in particular would be refoule to India for any purpose.
Further, the Tribunal finds that under the terms of the Treaty, the government of Nepal agreed to grant Indian nationals reciprocal privileges to Nepali citizens in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature. The Tribunal finds that the applicant does not have a well-founded fear of persecution or a real risk of suffering significant harm by Nepal returning him to India and that s.36(5) and s.36(5A) are not enlivened.
Conclusions
The Tribunal finds that the applicant has a right to enter and reside in Nepal and has not taken all possible steps to avail himself of that right. Further, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for a Convention reason in Nepal and that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s.36(3) in Nepal, there would be a real risk of the applicant suffering significant harm.
Therefore, Australia does not have protection obligations in respect of the applicant because of the operation of s.36 of the Act. The Tribunal, accordingly, finds that it therefore unnecessary to undertake any further assessment of the substantive merits of the applicant’s claim for protection under s.36(2).
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.
Tony Caravella
Member

APPENDIX A
On the question of relocation within India, the July 2015 DFAT Country Information Report points out the following:
5.17 In practice, options for internal relocation can be limited by a range of factors. These include language barriers; a lack of documentation; lack of familial or community networks; lack of financial resources and employment opportunities; and discrimination based on ethnicity, religion, caste or gender.
5.18 Language barriers can be among the most significant obstacles faced by those seeking to relocate within India. There are therefore more internal relocation options for India's sizable bilingual and multi-lingual population. According to the 2001 census, around 25 per cent of the population reported being able to speak more than one language and around nine per cent more than two languages.
5.19 Without proof of identity and local residence, internal migrants can be excluded from public services and social security programs. As a result, they often face barriers in accessing subsidised food, housing and banking services until they can establish identity and local residence. Ethnic, religious or caste identity may provide a basis of anti-migrant sentiment and a limiting factor for internal relocation. Single women, women with children or victims of familial crime may find relocating within India difficult due to the need to provide details of their husband's or father's name in order to access government services and accommodation.
5.20 Despite these difficulties, millions of Indians successfully relocate within India either temporarily or permanently every year, and it is possible to obtain work in the large informal sector without papers. In general, DFAT assesses that there are a range of viable internal relocation options for individuals seeking protection from discrimination or violence.
On the issue of honour killings in India, and in particular in relation to honour killings of males, country information indicates that honour killings remain a problem in India, particularly in Northern states. The US Department of State’s (US DOS) ‘India 2015 Human Rights Report’ highlights the states of Punjab, Uttar Pradesh, and Haryana in particular. In 2013, NGOs estimated that at least 900 such killings occurred annually in these three states alone. This is said to be related to the states having low female birth ratios due to gender-selective abortions.[17]
[17] US Department of State 2016, India 2015 Human Rights Report, 13 April 2016 , Section 6 < Accessed 16 August 2016 <OGD95BE926246>
Some killings resulted from extrajudicial decisions by traditional community elders, such as “khap panchayats,” unelected caste-based village assemblies with no legal standing. According to the US DOS, statistics for honour killings were difficult to verify, since many killings were unreported or reported as suicide or natural deaths by family members. [18]
[18] US Department of State 2016, India 2015 Human Rights Report, 13 April 2016, Section 6< Accessed 16 August 2016 <OGD95BE926246>
Most reports of honour killings involved the killing of a female by her own family members who were motivated by opposition to a relationship that the female had with someone deemed inappropriate. This included cases of honour killings in Punjab. For instance, US DOS reported that in 2015 a father and cousin in Mansa district in Punjab reportedly shot a pregnant female relative for marrying a man from lower social class against the wishes of her family.[19] The Indian Express reported the May 2016 case of a man in Punjab strangling his daughter because she was believed to be in a relationship with a boy from a “backward caste”.[20] In Uttar Pradesh, Indian Express reported in June 2015 a family being arrested for the honour killing of their daughter.[21]
[19] US Department of State 2016, India 2015 Human Rights Report, 13 April 2016, Section 6 < Accessed 16 August 2016 <OGD95BE926246>
[20] ‘Punjab: Man booked for honour killing of daughter’ 2016, Indian Express, 9 May < Accessed 16 August 2016 <CX6A26A6E3826>
[21] ‘Honour Killing: Youth slits sister’s throat as parents, siblings keep guard, seven arrested’ 2015, Indian Express, 22 June < Accessed 16 August 2016 <CXBD6A0DE8649>
There were also reports of the male in a relationship being killed by relatives of his female partner. In March 2016 in the city of Tirupur in Tamil Nadu state, Hindustan Times reported that a man of the Dalit caste was killed by the family of his wife.[22]
[22] ‘Dalit murder case: Youth’s mother-in-law surrenders’ 2016, Hindustan Times, 30 March < Accessed 16 August 2016 <CX6A26A6E2654>
A 2014 academic study in the International Journal of Criminal Justice Sciences by a professor at Guru Nanak Dev University, studied the problem of honour killings in Punjab. It found that “intolerance of the families to the pre-marital relationships and matrimonial choices of their daughters especially towards inter-caste marriages results into the honour killings”. The article adds that “The extent of these causes, resulting into [sic] elopements and unpermitted love-marriages further aggravates the situation. The study further observes that in noticeable number of cases honour killings are executed as crimes of passion aroused by sudden provocation when the couples are caught in compromising situations by the family members of the girls”.[23]
[23] Deol S S 2014, ‘Honour Killings in India: A Study of the Punjab State’, International Journal of Criminal Justice Sciences, vol. 3, no.6, June, pp 7-16 < Accessed 30 September 2015 < CIS2F827D9243>
No reports were found of honour killings of male siblings or of honour killings motivated by financial disputes.[24]
[24] Sources consulted were CISNET and internet sites - including news websites and internet search engines - in English.
In relation to police protection, the Tribunal’s country research indicates individual reports suggesting police respond to the crime of honour killing. Many of the reported cases of honour killings involved arrests by police of the alleged perpetrators. The aforementioned US DOS report of the case in Mansa district Punjab involved police arresting the suspects.[25] In the strangling case in Punjab mentioned earlier, the accused father was sent to judicial remand. The Indian Express article quotes the police officers involved stating “We received the information from one of our sources in the village. We interrogated the man based on our suspicion and he confessed to the crime”.[26] Another report of a killing of a Dalit in a relationship with his upper caste classmate mentioned that police arrested 12 suspects.[27] The aforementioned report of a Dalit being killed in Tirupur noted that one accused had been remanded into judicial custody by the magistrate and that five persons had been arrested in relation to the case. [28] No information was found on the police preventing honour killings.
[25] US Department of State 2016, India 2015 Human Rights Report, 13 April 2016 < Accessed 16 August 2016 <OGD95BE926246>
[26] ‘Punjab: Man booked for honour killing of daughter’ 2016, Indian Express, 9 May < Accessed 16 August 2016 <CX6A26A6E3826>
[27] US Department of State 2016, India 2015 Human Rights Report, 13 April 2016 < Accessed 16 August 2016 <OGD95BE926246>
[28] ‘Dalit murder case: Youth’s mother-in-law surrenders’ 2016, Hindustan Times, 30 March < Accessed 16 August 2016 <CX6A26A6E2654>
There was also a report of police being complicit in an honour-related assault. The UK Telegraph Group reported in 2015 that a mixed-caste couple returned to their village in Uttar Pradesh after the man’s family was allegedly tortured by police. The village council had decreed that the man’s sisters should be punished for his ‘crime’ by being raped and paraded naked through the village. The two sisters had, however, escaped and sought and received protection in the capital New Delhi which is 50km away from the village.[29]
[29] ‘Two Indian sisters to be raped as 'punishment' after brother eloped’ 2015, Telegraph Group -United Kingdom, 30 August < Accessed 16 August 2016 <CXBD6A0DE12801>
As there were no reports found of killings labelled ‘honour killings’ which were driven by financial disputes, there were no indications of the level of support available to someone in the applicant’s particular circumstances.[30] Noting the applicant was allegedly threatened with death, it is worth noting that in some of the cases reported of honour killings the victim had been threatened with punishment prior to the punishment being received. [31]
[30] Sources consulted were CISNET and internet sites - including news websites and internet search engines - in English.
[31] ‘Two Indian sisters to be raped as 'punishment' after brother eloped’ 2015, Telegraph Group -United Kingdom, 30 August < Accessed 16 August 2016 <CXBD6A0DE12801>
Relevant to the question of whether the applicant has a right to enter and reside in Nepal, Article 7 of this Indo-Nepal Treaty of Peace and Friendship of 1950 provides that Indian nationals such as the second applicant can enter and reside in Nepal, on the basis that:
[t]he two governments agree ‘to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature.
In MIAC v SZRHU[32] (SZRHU) the Full Court of the Federal Court held that the correct test for section 36(3) was that set out by Allsop J (as he then was) in V856/00A v MIMA (V856/00A)[33], that there is
no reason to restrict the meaning of the word ‘right’ to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement, or to exclude from the meaning the notion of liberty or permission or privilege which does not give rise to any particular duty upon the state in question.
[32] MIAC v SZRHU [2013] FCAFC 91.
[33] V856/00A v MIMA [2001] FCA 1018 at [31], 114 FCR 408 at 419.
In SZRHU the Court was considering the operation of section 36(3) in relation to a Nepalese national’s right to enter and reside in India under the Treaty, but the Tribunal sees no reason why the reasoning of this decision should not apply equally to the case of an Indian’s right to enter and reside in Nepal. Buchanan J held the correct course for the Tribunal, differently constituted, to adopt is as follows:
[The RRT] should pay regard to the actual terms of the Treaty and should also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test.
No information was located indicating that there are any practical barriers for Indian citizens being able to travel to and enter Nepal.[34] The Nepal Immigration website (a Nepali government website) provides the following information on the documentation required for Indian citizens to travel to Nepal.
[34] Searches conducted on CISNET, think tanks, academic journals, open source search engines, human rights organisations, non‑government organisations, and international news outlets.
What documents are necessary to enter Nepal
To allow Indian citizens to make travel on the basis of the following document:[35]
·     Passport, or
·     Driving license with photograph, or
·     Identity card with photograph issued by a governmental body, or
·     Ration card with photograph, or
·     Voter identity card with photograph, or
·     Registration certificate issued by the Indian embassy to the Indian citizen staying in Nepal, or
·     Ad hoc/temporary identity card issued by the Indian embassy to the Indian citizen in the event of exigency, or
·     Document with photograph and setting out identity, issued by the sub-divisional magistrate or authority there above.
[35] Nepal Immigration n.d., ‘Information for Indian Citizens’ < Accessed 6 January 2014.
The website of the Embassy of Nepal in New Delhi, India, states the following regarding Indian nationals entering Nepal by air at Tribhuvan International Airport, Kathmandu:
Visa for Indian Nationals:
Effective from 1st October 2000 an Indian citizen over the age of 10 years travelling between India and Nepal by air would have to keep in his possession any of the following documents to establish his/her identity as an Indian citizen.
1. Valid Indian passport; or
2. Photo identity card issued by the Government of India, or any State Government or Union Territory Administration in India, or the Election Commission of India; or
3. Emergency certificate issued by the Embassy of India in Nepal.[36]
[36] Embassy of Nepal, New Delhi n.d., ‘Visa Information’ < accessed 6 January 2014 .

According to the 2013 article ‘Nepal’s Border Relations with India and China’, published in the Eurasia Border Review, ‘there is no need of passport or visa formalities among the border inhabitants or other nationals of Nepal and India. The nationals of one country can enter into the other country through the border not merely through the checkpoints but through any point’. This article states that while there are 22 official checkpoints along the Nepal-India border, citizens of Nepal and India ‘can cross over the border without any restriction from any point’. Nationals of other countries ‘require both an entry and exit visa and they must cross over the border through six immigration points’. The article also comments on the ability of Nepalese and Indian citizens to escape from one country to the other, stating that when ‘there is any political upheaval in one country, people easily escape by crossing over the border’.[37]
[37] Jah, H 2013, ‘Nepal’s Border Relations with India and China’, Eurasia Border Review, Spring, p. 63 Accessed 6 January 2014.
A 2012 book chapter titled ‘Nepal: Issues and Concerns in India-Nepal Relations’, sourced from the Indian Institute for Defence Studies and Analyses publication India’s Neighbourhood – Challenges in the Next Two Decades and written by NiharNayak, also provides information on the Nepal-India border. This article refers to the ‘open border and 26 transit points’ between Nepal and India, and notes that ‘[t]housands of Nepalese workers … cross the border without any documents at any point of the border in search of jobs’. The article also notes that a lower ‘number of Indian workers go to Nepal in search of jobs’, and comments on the ‘absence of passport and visa requirements’ for nationals of India and Nepal travelling between the two countries. Further, the article states that ‘Indian Maoists, illegal armed groups operating in the Madheshi region, and organised criminal gangs take advantage of the open border and take shelter on either side to evade the law enforcement agencies of respective countries’. The article does not comment on the ability of individuals fleeing threats to seek shelter on the other side of the border.[38]
[38] Nayak, N 2012, ‘Nepal: Issues and Concerns in India-Nepal Relations’, in Dahiya, R & Behuria, A (eds), India’s Neighbourhood – Challenges in the Next Two Decades, Institute for Defence Studies and Analyses, Pentagon Press, pp. 137-162, p. 148 Accessed 6 January 2014.
A December 2013 report from The Hindu notes a crackdown by Indian security forces on border crossings at the Birganj (Nepal) – Raxaul (India) border crossing point. The crackdown does not, however, apply to Indian citizens crossing into Nepal, but rather on traders from both sides of the border who attempt to buy bulk goods and return them to their home country to sell, avoiding customs duty as this duty does not apply to goods purchased for personal use.[39]
[39] Gaikwad, R 2013, ‘Locals suffer due to crackdown on Indo-Nepal cross-border trade’, The Hindu, 9 December < Accessed 6 January 2014.
The Nepali government’s published entry requirements for Indians make it clear that Indian nationals are free to enter Nepal upon presenting basic forms of photographic and other identification. Country information suggests that the privilege granted is in practice, rarely denied, and enjoyed by many Indians and Nepalis on a daily basis.
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.
…
Protection obligations
36(3)  Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
36(4)  However, subsection (3) does not apply in relation to a country in respect of which:
(a)  the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
36(5)  Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a)  the country will return the non-citizen to another country; and
(b)  the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
36(5A)  Also, subsection (3) does not apply in relation to a country if:
(a)  the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

[2016] AATA 4737

17 November 2016

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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