1611780 (Refugee)

1611780 (Refugee) [2019] AATA 6012 (11 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611780
COUNTRY OF REFERENCE:                   Nepal
MEMBER:David McCulloch
DATE:11 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 July 2019 at 3:56pm
CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – party membership and activity – credibility – fraudulently altered passport – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 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 Nepal, applied for the visa on 12 February 2016. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 28 June 2019 at 9.30 am. The Tribunal was assisted with an interpreter in the Nepali language. The applicant was represented by his registered migration agent, who did not attend the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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. The Tribunal has before it DFAT Country Report – Nepal, 1 March 2019, a copy of which was given to the applicant in the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant entered Australia [in] September 2010.
The Department’s Document Examination Unit examined this passport and determined that it was a legitimately manufactured document that had been fraudulently altered. There is evidence of alteration to the photograph.
The passport that the applicant entered Australia on had been previously used to enter Australia [in] February 2009 with the passport holder departing [in] September 2009. In the Tribunal hearing the applicant indicated that the original and genuine passport holder was the person who had entered Australia at this time. The applicant had later acquired the passport and replaced it with his photograph. The Tribunal accepts this.
The Tribunal notes that the applicant has acknowledged, in his written claims below, that he fraudulently altered the photograph on a passport of another person for the purpose of entering Australia.
The passport in the name of the applicant as claimed in the current application for the protection visa was also examined by the Department’s Document Examination Unit. It was found to be a legitimately manufactured document personalised in the expected manner with no fraudulent alteration.
The following information is apparent from the application forms for the protection visa. The applicant was born on [date] in [Village], in Baglung Province, Nepal. The applicant is a Hindu of Chhetri ethnicity. The applicant married [in] May 2009 in Baglung, and indicates that he and his wife are still together. The applicant indicates that his wife and son are still in Nepal, as are his mother, father [and a number of siblings]. The applicant’s [sibling] is currently living in Australia. The applicant lived in [Village], Balung until he ‘fled to [Country 1]’ in August 2006. The applicant returned to Nepal in August 2008, and lived in Kathmandu until he came to Australia in 2010. The applicant completed a School Leaving Certificate in [year], and subsequently obtained a [qualification] from [University] in 2005. The applicant did not work in Nepal, but gained employment as [Occupation] in [Country 1]. The applicant is currently unemployed.
The applicant provided a written statement setting out his claims for protection as follows (not corrected for spelling or grammar):
I was born on [date] in [Baglung] District,
[Village] to Father [Name] and Mother [Name] as a [birth order] child.
Date of Birth:
Father: [Name] — [date]
Mother: [Name] – [date]
[Siblings’ names and dates of birth]
My educational background:
I completed my primary school from [Primary School] in [Village] and High School from [High School], [Village] In [year] after I completed my SLC I went to Baglung for my higher education at the city centre's [Institution] and enrolled to study. As I was living a student life I was also involved in social service field and used to participate in this area.
In this context, the village where I was born and bred, was the base and dominated by Rastriya Janamorcha Party. I too was involved in the Student Union's All Nepal National Free Student Union (sixth) from my school life and was actively involved in its social works. As I was involved in the union my political activities got more active as I entered and studied in the campus. I fulfilled all the responsibilities bestowed upon me by the union. I voiced for the favour and rights of the students regularly.
In this series, I was elected in a member position of the Free Student Union in the year 2060 BS (2003-2004 AD). This victory gave me more encouragement. After that, I got elected as the Baglung District Committee's Member, and I increased my activities in the political scenario. Alas, The Political situation from the year 2052 BS (1995-1996 AD) started to become disrupted and fatal to people by the inhumane activities of the NCP Maoists in the name of People's War. Due to such inhumane and fatal activities of the Maoists the people in the villages suffered greatly.
Those who protested, those who did not agree to give food and shelter were abducted, beaten and even killed by the Maoists, which was against Human Rights. Similarly the Maoist activities drastically increased during the years 2060 - 2061 BS (2004 - 2005 AD) and the Government had been unable to stop these terrorist activities.
There was no room in the village for those who went against and protested the Maoists, in such situation The Rastriya Janamorcha started to revolt against the malicious activities, forceful collection of ransom, terror and social ostracism in a nation-wide protest scheme. As I was a working member of The Janamorcha, I was actively involved in that scheme.
In this context, around Kartik 2061 AD, (November 2004), I was sent a warning letter by the Maoists, ordering me not to protest or go against them and if not obeyed my life would be taken. However, I did not stop protesting against the wrong doings. After that in Mangsir 2061 AD (December 2004), while I was sleeping in my own house the surrounded me at mid-night and abducted me.
After abduction The Maoists took me to their Base area and started beating me and tortured me physically and mentally. I was not given food to eat for several days. Such inhumane behaviour of the Maoists made me hate them more than ever. My family became helpless after I was abducted. After sometime the Maoists brought me to the village and released me in the presence of social workers and human rights activists after swearing me that I would no longer protest them, that I would leave the village and the country and that I will never raise my voice against the people's movement ever. Not knowing which country to decide to flee to. I desperately entered the city with my hopeless life. At that time I did not even have a Passport.
In this context during the end of 2062 BS (2005-2006 AD) there was a huge people's revolution for democracy and for a change in the politics. When the democracy came I began to hope that I could survive and live in my own country. I became actively involved in the people's revolt and I was even injured. Democracy came at last. However, the Maoists did not stop giving me troubles. Being unable to tolerate the threatening of the Maoist and for the safety of my life I even went to the District Administration Office and The Police Office and gave applications requesting for my safety, but no one listened to me. After that, during 2063 Bhadra (Aug-Sept 2006 AD) I went to [Country 1].
I returned to Nepal in 2065 (2008-2009 AD) after staying in [Country 1] for two years. At that time the Moaist Party had already entered into Peace process and following the constituent assembly elections of 2064 Chaitra 28 (10 April 2008 AD) had become the first party. In such situation I thought that I could now live peacefully and I returned to Nepal with that hope. Unfortunately, my thoughts were wrong, Maoists had not changed in their behaviour. With the victory in elections their ego became bigger and they continued their ill behaviours towards the society. Now that they held the high offices and administration they became even vicious.
After my return to Nepal, I began to live again in the village, but the former treatment of the Maoists again continued. Asking for forceful donations and threatening to kill if anyone disobeyed them continued. At home my parents started to plead to me to go to some country where human rights existed as they were worried about my safety. After it became impossible to continue living in the village, I again came to Kathmandu.
I told about my problems and my situation to friends and relatives after I came to Kathmandu. Considering the difficult situation and the difficult environment, my friends and relatives suggested me not to live in the country. They suggested me to find a way to go to Australia, where human rights is respected, they told me my life as a victim of revolution would be safe only in Australia.
I started looking for ways and avenues to somehow go to Australia. In this context, I met an agent in Kathmandu who could alter photographs from passports and send people to Australia. That same agent got hold of a person named [name]'s passport [number] and changed the holder's photo with mine and gave me that passport with visa for Australia. I came to Sydney, Australia with an altered Passport of someone else in 2067 [Bhadra] BS ([Sept] 2010).
After entering Australia on a fake passport I did not have any information or get any suggestions from anyone as to how I could start a process to ensure safety of my life and to live permanently here.
To survive I had to start looking for work but since I had no documents it became extremely difficult to get employed. Even to this day it has been extremely difficult for me to survive as I do not get any regular jobs. I am now in such a situation, I cannot return back to Nepal and I do not have any legal documents to survive here. Although a new constitution has been established the situation in Nepal is still very difficult for easy survival.
The Maoist group whose leadership is held by Netra Bikram Chand (Biplav) has been threatening my family saying your son is living in Australia and therefore you have to pay us money. If you do not pay us we can do anything to you, My parents told me they have received such threatening letter from the Maoist. My parents plead to me not to return back. Even at present those displaced during the civil war have not been able to regain their lost property and are not able to go back to their homes. Those who became disabled during the war have not been given required attention and treatment.
I am not in the situation to return back to Nepal even today due to the terror and threats my family have been receiving. Australia being a country of human rights, I hereby request the concerned authorities and the Australian Government to please let me live here so that I can save my life.
The applicant provided a number of documents as part of his application to the Department, including the following:
- (Copy of original and translation) National People’s Front Membership Certificate of the applicant, dated [April] 2002.
- (in English) School Leaving Certificate Examination Results of the applicant dated [dates] of [Secondary School].
- (in English) Character Certificate of the applicant dated (Nepalese calendar) 2059/[05] of the above school.
- (Copy of original and translation) Nepalese Government Certificate of Nepali Citizenship of the applicant, dated [November] 2002.
- (Copy of original and translation) [University] Student Identity Card of the applicant.
- (Copy of original and translation) [University] Free Students’ Union Identity Card of the applicant.
- (in English) [University] Academic Transcript for the applicant for courses in the years 2002 to 2004, dated [August] 2005.
- (in English) [University] Character Certificate of the applicant, dated (Nepalese Calendar) 2062/[07].
- (Copy of original and translation) Nepalese Government Historic People’s Revolution Injury Identity Card of the applicant, dated [September] 2008. This card indicates that the applicant has a disability percent of 2.
- (Copy of original and translation) Marriage Registration Certificate between the applicant and [his wife] evidencing their marriage [in] May 2009, dated [September] 2009.
- (Copy of original and translation) Nepalese Government Relationship Proof Certificate for the applicant and his wife, dated [September] 2009.
- (in English) [University] letter of enrolment for the applicant from 2003-2004, dated [September] 2009.
- (in English and Nepalese) [University] Proficiency Certificate Examination of the applicant of an examination in [Subjects] in 2005, dated [October] 2009.
- (Copy of original and translation) Nepalese Government Birth Registration Certificate issued [August] 2012 by the Village Development Committee [Village] Baglung of a child of the applicant and his wife born on [date].
Independent information
The latest DFAT Country Report – Nepal, 1 March 2019 provides as follows:
Recent History
…
In 1996 the Unified Communist Party of Nepal (Maoist) (UCPN-M) began a nationwide violent insurgency against the government leading to a ten-year civil war. Almost 18,000 people were killed and over 1,300 disappeared before a peace accord was struck in 2006 following an agreement between the Maoists and an alliance of seven Nepali political parties.[1]
[1] DFAT Country Report – Nepal, 1 March 2019, para 2.3
…
Political Opinion (Actual or imputed)
All Nepali citizens 18 years and older are eligible to vote. Under the 2015 Constitution seats in the Federal Parliament are reserved for women through quotas, and substantial, proportional allocations made for Madhesis, Dalits, and other minority groups.
Political affiliation, both at an organisational and individual level, is an important aspect of identity. This was a cause of instability during the conflict and in the years immediately following. Political youth wings, bandhs (strikes, see Private Sector/Business Community), demands for donations from local authorities and the private sector, and the obstruction of tender-bidding processes in line with political interests all contributed to this instability.
A diverse and competitive array of political parties operates in Nepal, though the system has faced considerable instability in recent years. Unlike the 1990 constitution, the 2015 Constitution has no limitation on parties formed along ethnic lines leading to many ethnic groups to participate formally in political processes, motivated by a belief that they have been excluded from a society that has historically been ruled by dominant ethnic and caste groups.
Nepal has enjoyed several years of political stability. A lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. DFAT assesses the risk of a return to widespread violence is low.
Fear of Maoists
Communist parties won the 2017 elections in both the parliament and the provincial assembly. The main far left parties, Communist Party Nepal (Unified Marxist-Leninist) CPN-UML and Communist Party Nepal (Maoist Center) merged in 2018. Before political groups were allowed to politically organise in 2015, Maoists recruited from among ethnic minorities who participated in their insurgency.
Tens of thousands of people displaced by the long period of conflict in Nepal (see Recent History) remain displaced. As part of the peace process, Maoists and the government agreed on a programme to allow displaced people to return to their homes. The land once belonging to many displaced people had since become occupied illegally or been given away or sold by the Maoists during the civil war. Some displaced people lack documentation, preventing them from reclaiming their property.
While the two main Maoist parties have merged, the movement has a history of internal splits and the ideology of the two main groups, while merged, is inconsistent. Historical claims of abuses during the insurgency remain unresolved.
Maoists have the potential to control the national agenda without resorting to violence. In general, DFAT assesses that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants.[2]
[2] DFAT Country Report – Nepal, 1 March 2019, paras 3.38-3.45
Hearing, credibility, findings and assessment

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at [596]. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at [288]), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at [169-70]; Luu & Anor v Renevier (1989) 91 ALR 39 at [45]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at [451] in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191] where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal accepts that the applicant is a citizen of Nepal and accordingly his claims will be assessed against Nepal.
In the hearing, the applicant provided an account of him being abducted by a group of about 40 Maoists who took him when he was sleeping in December 2004. At that point the applicant was in his home village area in Baglung. The applicant was released on the condition that he not continue to live in his home village area. The applicant had previously been studying in the town area of Baglung Bazar and this is where he returned to after he was kidnapped in late 2004 until he left for [Country 1] in August/September 2006.
The applicant gave evidence in the hearing that when he returned from [Country 1] in August 2008 he spent six months in his home village area. The applicant indicated that, during that period, the applicant suffered mental torture from Maoists who told him to leave the village area. The applicant indicated on two occasions in the hearing that this was the extent of the harm he faced at the hands of Maoists during this period. From early 2009 until two weeks before the applicant came to Australia in September 2010 the applicant lived in Baglung Bazar. The applicant indicated that during this period and other periods when he lived in this area that he was free from difficulties from Maoists because of the presence of government and military officials in the town.
The Tribunal noted to the applicant that his written claims indicate that upon return from [Country 1] he faced harm from Maoists in his home village area in terms of them seeking forced donations. It was noted to the applicant that in the hearing he had (on two occasions) indicated the extent of harm caused by Maoists but with this not being indicated as a source of harm. In response, the applicant indicated that he might have forgotten to mention this.
The applicant indicated that he spent two weeks in Kathmandu before coming to Australia [in] September 2010. The applicant indicated that he did not have any difficulties in Kathmandu during this period.
The Tribunal noted to the applicant in the hearing that the risk of harm to him at the hands of Maoists appeared to be limited to his home village area. The applicant avoided harm due to Maoists during the periods that he lived in Baglung Bazar and he suffered no difficulties in Kathmandu. In response the applicant indicated that property and job prospects are located in his village area suggesting that he would be forced to return there.
The applicant indicated at the hearing that he would continue to be politically involved on return to Nepal with the Rastriya Janamorcha Party.
The Tribunal put to the applicant in the hearing information contained in the DFAT report extracted that the political situation in Nepal has significantly stabilised in recent years. The report indicates a diverse and relatively thriving political environment and an ability to be politically active in opposition to the Government. The report indicates that Maoists have the ability to control the national agenda without resorting to violence.
The Tribunal put to the applicant that this information would not suggest that the applicant would continue to face serious or significant harm as a result of opposition to Maoists and/or political involvement. In response, the applicant indicated that the Maoists are now part of the Government and are still targeting and victimising people. The applicant also referred to bomb explosions.
The Tribunal asked the applicant about the Nepalese Government Historic Peoples Revolution Injury Identity Card dated [September] 2008 that the applicant had provided to the Department which refers to him having a disability level of 2%. The Tribunal asked the context in which this disability was obtained. The applicant indicated that this was when he suffered an injury from police when protesting against the Government in Baglung Bazar in early 2006 prior to travelling to [Country 1].
The applicant in the hearing indicated that he travelled to Australia in September 2010 seeking its protection and fleeing from harm in Nepal. The Tribunal put to the applicant that his delay in applying for the protection visa until February 2016 was not consistent with the applicant fleeing Nepal in fear for his safety. The applicant in response indicated that he did not have information as to options for protection in Australia nor the money to fund an application. The Tribunal noted to the applicant that he was sufficiently resourceful to utilise a fraudulent passport to depart Nepal. The applicant in response indicated that this was with the assistance of an agent.
The Tribunal noted to the applicant in terms of his response that it would have considered that the applicant would have investigated protection options and obtained necessary funds to make an application such as with the assistance of his family at a much earlier opportunity than he did. The delay of more than five years from arrival in Australia in making the application for protection was significantly undermining of the applicant’s claims.
The Tribunal considers this evidence in assessing whether the applicant meets relevant protection criteria.
At best, and on the applicant’s own evidence in the hearing, he has only suffered harm or been at risk of harm caused by Maoists in his home village area. The Tribunal proceeds that the applicant did suffer intimidation and harm caused by Maoists in his village area during and soon after the period of the civil conflict. The Tribunal has some scepticism that the applicant was abducted by Maoists as he claims. However, for the purpose of this decision the Tribunal is prepared to accept that this event did occur.
The applicant in the hearing on multiple occasions gave evidence that he was free from harm caused by Maoists in the urban area of Baglung Bazar where he had lived at least two and extensive periods because of the presence of government and military officials.
Given the periods in which the applicant has lived in Baglung Bazar the Tribunal would consider that this is a home area of the applicant in addition to his village in Baglung. This is also where the applicant’s wife and child currently live according to the applicant’s evidence in the hearing. The Tribunal does not accept that the applicant’s home village area is his only home area because of property or job prospects being solely based there. The Tribunal does not consider that the evidence indicates that the applicant has or would currently, or indeed in the past, faces a real chance of serious or significant harm in Baglung due to Maoists.
This finding is significantly reinforced by the markedly changed political environment in Nepal. As indicated in the DFAT report there is a relatively thriving political environment and ability to engage in political opposition. Maoists have the ability to control the political environment without resorting to violence.
That reinforces to the Tribunal that the applicant would not face a real chance of serious or significant harm caused by Maoists in Baglung Bazar either as a result of past negative interactions with Maoists during and soon after the period of the civil conflict nor because of any future political activity of the applicant such as continued involvement with Rastriya Janamorcha.
The Tribunal accepts that the applicant was injured by police in a protest that he took part in against the government in early 2006 in Baglung Bazar. This suggests to the Tribunal that the applicant would likely continue to be politically active on return to Nepal. Nevertheless, the difficult and fragile security situation in the Nepal in 2006 at the end of the civil conflict is significantly divergent from the current relatively stable and peaceful political environment. The DFAT report indicates that because Maoists currently have the potential to control the political environment they no longer engage in violent activity. The Tribunal does not consider that the independent evidence before it discloses systemic or widespread violence being perpetrated by Maoists in Nepal.
The Tribunal does not consider, even should the applicant seek to engage politically on return to Nepal, that he faces a real chance of serious or significant harm based on violence encountered in demonstrations.
Given the applicant’s failure to indicate in the hearing the harm caused to him by Maoists as a result of forced donation requests the Tribunal is not satisfied that the applicant was targeted for donations to an extent that would constitute serious or significant harm. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm caused by Maoists on return to Nepal as a result of forced donation requests.
In terms of all the claims of harm put forward by the applicant, the Tribunal’s findings that there is not a real chance of the applicant facing serious or significant harm is reinforced by the delay of more than five years by the applicant from arriving in Australia to making the application for the protection visa. This is not consistent with the applicant fleeing Nepal for his safety as claimed.
In summary, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm in returning to one of his home areas, Baglung Bazar, on return to Nepal.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Nepal for a refugee criterion reason. The Tribunal is also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal there is a real risk that he will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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.
David McCulloch
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 6012

11 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies