1611346 (Refugee)

Case [2016] AATA 4737

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

  1. 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).

  2. 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

  3. In his application for a Protection visa, the applicant declares he was born in [Punjab], India in [year].

  4. 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]…

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1611346 (Refugee) [2016] AATA 4737
Case
[2016] AATA 4737
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of an applicant who claimed to be an Indian national seeking a protection visa. The delegate had refused the visa on the grounds that the applicant possessed a right to enter and reside in Nepal and had not taken all steps to avail himself of this right, thus concluding that Australia did not owe him protection obligations under the Migration Act 1958 (Cth) (the Act). The applicant's claims included fear of honour crimes and significant harm if returned to India due to domestic violence and threats from his brother.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36 of the Act. This involved determining if the applicant had a well-founded fear of persecution in India, or if he faced a real risk of significant harm if removed to Nepal, and whether he had taken all possible steps to avail himself of his right to enter and reside in Nepal. The Tribunal also considered the complementary protection criterion under section 36(2)(aa) and the exclusionary provisions in sections 36(5) and 36(5A) of the Act.

The Tribunal found that India was the country of reference for assessing the applicant's claims. It acknowledged the applicant's claims of domestic violence and threats from his brother but ultimately did not accept the underlying premise of these claims, finding that the applicant had not established a well-founded fear of persecution in India. Crucially, the Tribunal determined that the applicant had a right to enter and reside in Nepal under the Indo-Nepal Treaty of Peace and Friendship and that he had not taken all possible steps to avail himself of this right. The Tribunal also found no substantial grounds to believe that, as a necessary and foreseeable consequence of availing himself of this right, the applicant would suffer significant harm in Nepal. The Tribunal noted that the applicant did not claim he would be refouled from Nepal to India, and the evidence did not suggest this would occur.

Consequently, the Tribunal affirmed the delegate's decision to refuse the grant of a protection visa. It concluded that Australia did not have protection obligations in respect of the applicant as he did not satisfy the criteria under section 36 of the Act, and it was therefore unnecessary to undertake further assessment of the substantive merits of his protection claim.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.ConclusionsThe 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).DECISIONThe Tribunal affirms the decision not to grant the applicant a protection visa.Tony CaravellaMemberAPPENDIX AOn 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 isno 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 NepalTo 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; or2. 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; or3. 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 19585 (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 familyFor 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 familyFor 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 obligations36(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.

Ratio Decidendi

Legal Principle Established

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.