1611887 (Refugee)

1611887 (Refugee) [2019] AATA 6688 (10 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611887
COUNTRY OF REFERENCE:                   Nepal
MEMBER:David McCulloch
DATE:10 September 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 September 2019 at 9:49am
CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – advocacy for geography based federalism in Constitution – particular social group – human rights defender – target of Maoists, the army or ex-wife’s family – credibility concerns – failure to mention key substantive claims – inconsistent evidence – highly generalised responses – prevalence of fraudulent documents – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor 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 29 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 2 March 2016. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 27 August 2019 and 30 August 2019. The Tribunal was assisted with the use of an interpreter in the Nepali language.
In the first Tribunal hearing the applicant took evidence from [Mr A], the applicant’s brother. This evidence was taken by way of telephone with the witness in Nepal.
The applicant was assisted by his registered migration agent who attended the hearings.
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 (DFAT) 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 Information Report – Nepal, 1 March 2019. The applicant’s migration agent indicated in the first Tribunal hearing that he had a copy of this report.
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.
Background and claims
The applicant was granted [a] visitor visa on 21 January 2016, and arrived in Australia [in] January 2016. The applicant’s visa ceased on 29 February 2016. The applicant applied for a protection visa on 2 March 2016.
The application forms for the protection visa indicate that prior to coming to Australia, the applicant visited [Country 1 from] November 2014 [to] December 2014. The applicant then went to [Country 2 from] December 2014 [to] December 2014, before visiting [Country 3 from] December [until] December 2014.
The following is also apparent from the application forms for the protection visa. The applicant was born on [date] in Gorkha, Nepal. The applicant is a Hindu, and speaks, reads, and writes Nepali, as well as reading and writing English. The applicant married [in] December 1998, and his wife, son, and daughter all live in Nepal, as do the applicant’s parents. The applicant completed secondary school at [School 1] in Ghorka in [year]. The applicant worked as [Occupation 1] of [Business 1] in [Locality 1], Lalitpur, from January 1999 to January 2003, and then as [Occupation 1] of [Business 2] in Kathmandu from January 2003 to January 2006. The applicant has worked as [Occupation 1] of [Business 3] in Kathmandu from January 2007 until the present. The applicant lived in Gorkha from January 1986 until January 1998, and then lived in Kathmandu since.
The applicant provided a statutory declaration dated 26 July 2016, providing additional information. The applicant states that he had a previous passport, and has two brothers. The applicant attended [Institute 1] from 1997 to 1999. The applicant lived in [Village 1], Gorkha from birth until 1997, and then in [City 1] until 1998. The applicant lived in Kathmandu from January 1998 until 2016. The applicant had previously married in 1992. However, the applicant’s first wife was a Maoist and was killed in a gun fight with Nepalese authorities. The applicant provided further information on his claims for protection, which is set out after the applicant’s initial written statement.
The applicant provided a written statement dated 1 March 2016 setting out his claims for protection as follows (not corrected for spelling or grammar):
I, [the applicant] was born from the father [Mr B] and Mother [Ms C] in Gorkha District [Village 1], on [date]. My father was internally migrated from somewhere else and settled there. The local society used to treat my father differently since he was new there.
This affected me regarding my social dealing from my childhood. My father was poor but hardworking and engaged in agriculture. The school was very far for me since I was born in Remote village.
I could join school only in [year]. In school I focused on opposing the anarchy that locals did on me rather than focusing on my study. I also worked on Junior Red Cross Circle of [School 1] in 1992. I passed the SLC exam in [year]. In spite of continuing study, I wanted to work on social service; hence I formed [Organisation 1] and became the chairperson of this [organisation]. We conducted various programs in villages against the discriminations and suppression. There was the vast gap between the workers and the owners in Nepal at that time also. We raised voice against such gaps through various programs.
I started to be a kind of rebel from my childhood. In 1997, I left village and came to Gorkha for my higher study and admitted in [Institute 1]. In college also I started to speak against various discriminations rather than concentrating in my study.
That is why I could not get success in my study. As I was speaking against the various kind of discrimination existing in society, there was the war going in the country. There were many casualties here and there and no security of individual lives. I returned in village and started to raise awareness among people for their rights, the time was "People's War". In the same time (1998) I got married and started my [business]. Various cast groups stay in the place where I was born. Some handful rich people keep the servants who could not do their own works unless they finish their landlords work. Some used to keep shepherds and bonded labor. These rich people used to charge very high interests on loans.
The Dalits would not be allowed to enter in public places like temples, taps and would not be allowed to touch so called high caste people. I used to lead the campaigns against such discrimination and suppression prevailed in the society. Our campaign started to attract many people. But, of course, few handful people used to oppose our campaigns.
I felt insecure in village since there was the armed conflict going on between Maoist and the Security forces. That is why I came to Kathmandu in 1999 again and started to run [Business 1] then [Business 2] and [Business 3] for my survival. The political situation of Nepal was volatile.
As I was already plunged into the social service giving less priority to my family and home, I used to participate in many programs. Meanwhile, the peoples' movement of 2006 was successful which was led by 7 parties' alliance and Maoists and the nation took a different course. I also took part in the movement actively. Taking consideration of the decision of the government that it will allow to establish the organization for those who have been working in social sector, we also registered an [organization] named "[Organisation 2]" [in] 2013. The non profitable organization aimed at working for the poor, helpless people, in the field of domestic violence, elderly people and the universally accepted principles of human rights. It also aimed to develop the feeling of national integrity among citizens taking consideration of federal democratic principle.
My business was also growing along with my social service. My two children would study in Kathmandu. Our organization started to attract the concern of general people since we were demanding for respect for human rights, fulfillment of basic needs of the people, quality health services and education and security which were not fulfilled by the government. Nepal went through the Election of Constituent Assembly in 2008. The government became unstable after the election since the political parties focused on forming the government and dismissing it rather than making the new constitution. Nepal could not get the new constitution due the varied positions and interests of various political parties. The issue of ethnic based federalism and its opposition was the major reason behind the failure of first Constituent Assembly of Nepal. I became [office bearer] of [Organisation 2] in 2013. We decided to launch a campaign for the establishment of Federalism in country not on the basis of ethnicity but on the basis of geographical variation, as I became the [office bearer] of the organization. We mobilized all the life time members, general members and the branch offices in favor of geography based Federalism.
The issue of basis of federalism was the cause of dismissal of CA. In this regards, I had clear view that every citizen is equal and Nepal is multicultural country where various ethnic groups stay in same village. That is why our organization had forwarded the clear stand that federalism should not be made on the basis of ethnicity which will invite the ethnic conflict. We conducted various pressure campaigns like sitings, public protests, handing over memorandum. Our website [URL] has more records of our programs.
Nepal had the second election of CA on November 19, 2013. I gave directives to my friends and branches to put our view firmly during the election. The parties who were in favor of geographical based federalism got majority votes defeating those who were favoring the ethnic based federalism. The defeated parties were furious as they got huge slaps in the elections. They thought that our organization had also role to defeat them in the election. They also targeted me personally as I was the [office bearer] of the organization.
Especially the [office holder] of federal socialist party [Mr D] was most furious towards us. They say that they are ready to do anything for the establishment of caste and ethnicity based federalism in Nepal. He used to blame me for his parties defeat in elections.
He kept on threatening me for three years saying that I ruined their dream of establishing caste based federalism since I am Bhramin – a higher caste. But I kept on doing my work being fearless. I used to get life threaten from the leaders of Federal Socialist Party like [Mr E], [Mr F] and [Mr G]. They used to say in public that they would not leave and drink the blood of those who have long nose, the Bhramins. They used to send me the letters mentioning that they are going to kill me.
The business of my [Business 4] which is registered in my name has been declined significantly since they have terrorized entering into my [business premises]. I have mom dad, two children and my wife back in Nepal. They all are dependent on me, that is why I have to save my life for their shake too. The group is furious towards my family too.The ethnic conflict has been started from local level in Nepal. The caste based federalism is certainly going to fuel such conflicts in local level since every small village comprise of many ethnic groups.
The ethnic based parties have vandalized office of my organization [Organisation 2] on June, 2015. They have also closed many of our branches and threaten the members of the organization. I reported these entire incidents to the DSP office in Kathmandu Police but they have not taken it seriously.
Police just got reluctant saying that if they punish the leaders of ethnic party there may be the chance of greater ethnic violence. I am totally unsafe in whole Nepal because this party has its network in all around the country. In Nepal, the impunity is prevailed and no political atrocities have been investigated and punished the culprits.
See my fate; I used to do advocacy and campaigns for the equality and the rights to all but now I am compelled to ask for my life with you here. I am knocking your door for the protection of my life. There are a lot of strikes, protests and mobs due to the issue of federalism in Nepal even now days. It is greater risk for me to return to the country. I have still receiving t threat to life through various papers.
So I would like to apply for Protection Visa in Australia as per Refugee Convention mentioned below:
The 1951 Convention relating to the Status of Refugees, to which Australia is a signatory defines a refugee as:
"Any person who owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his/her nationality and is unable, or owing to such fear, is unwilling to avail himself/hers& f of the protection of that country"
This definition is the most widely accepted legal definition, but broader definitions are used in other parts of the world. If a person is found to be a refugee, Australia is obliged under international law not to send them back to persecution and to respect their rights as set out in international law.
Compelling Circumstances for applying Protection Visa:
-Discrimination against my race
As I was speaking against the various kind of discrimination existing in society, there was the war going in the country. There were many casualties here and there and no security of individual lives. I returned in village and started to raise awareness among people for their rights, the time was "People's War". In the same time (1998) I got married. Various cast groups stay in the place where I was born. Some handful rich people keep the servants who could not do their own works unless they finish their landlords work. Some used to keep shepherds and bonded labor. These rich people used to charge very high interests on loans. The Dalits would not be allowed to enter in public places like temples, taps and would not be allowed to touch so called high caste people. I used to lead the campaigns against such discrimination and suppression prevailed in the society
-Threat of Persecution
The ethnic based parties have vandalized office of my organization [Organisation 3] on June, 2015. They have also closed many of our branches and threaten the members of the organization. I reported these entire incidents to the DSP office in Kathmandu Police but they have not taken it seriously. Police just got reluctant saying that if they punish the leaders of ethnic party there may be the chance of greater ethnic violence. I am totally unsafe in whole Nepal because this party has its network in all around the country. In Nepal, the impunity is prevailed and no political atrocities have been investigated and punished the culprits. See my fate; I used to do advocacy and campaigns for the equality and the rights to all but now I am compelled to ask for my life with you here. I am knocking your door for the protection of my life. There are a lot of strikes, protests and mobs due to the issue of federalism in Nepal even now days. It is greater risk for me to return to the country. I have still receiving t threat to life through various papers.
- Social Castism
My father was internally migrated from somewhere else and settled there. The local society used to treat my father differently since he was new there. This affected me regarding my social dealing from my childhood. My father was poor but hardworking and engaged in agriculture. The school was very far for me since I was born in Remote village.
Other compelling reasons for not returning to my country:
Non acceptance in society
Political Unrest in the Country
Civil unrest in community
Clashes with neighbouring Countries
Based on the discussion above, I believe that I meet the assessment criteria to be a genuine Refugee, and would like to kindly request you to grant me Protection visa so that I can fulfil my future dreams.
It's my humble Request to please do consider my situation and make an assessment on my case based on the above mentioned circumstances.

As mentioned, the applicant provided an additional statement dated 26 July 2016 setting out further information regarding his claims, as follows (not corrected for spelling or grammar):
I provide following statement to correct some mistakes in the form and statement.
I had a previous passport.
I have 2 brothers as well, namely, [Mr A] and [Mr H].
I attended [Institute 1] from 1997-1999. I visited VHS and Nepalese consulate in Nepal for the visa matter.
I also had a [Business 4] from 2014-2016.
In relation to my addresses in Nepal.
June 1976- 1997- [Village 1], Gorkha.
1997-1998- [City 1] and my village [Village 1]. I used to stay in both places.
January 1998- 2016- [Village 2], Kathmandu.
Further when the Australian High Commission called for a short interview, my friend answered on behalf of me due to my lack of English knowledge.
I did not mention about my ex-wife and the circumstances which led to the breakdown of the marriage.
I got married to my ex-wife in 1992. It was an arranged marriage. My ex-wife and her family were Maoists and my ex-wife was a member of the Maoists. Though she was from high caste, she worked and scarified her life for the vulnerable and disadvantaged people. When my parents found her, I immediately accepted the marriage proposal because both of us had similar mentality and concerns for the vulnerable people.
However, due to her active commitment with the Maoists we could not meet often and continue our life as husband and wife. During that period, I fell in love with my current wife and married her in 1998. My current wife is from Rajput family and I am from Brahmin caste. During that time, my ex-wife was killed in a gun fight with the Nepalese authorities.
In relation to [Organisation 1], it was assisted by the following advisors.
[Mr I]- Head master of [School 2]
[Mr A] of [School 3]
On behalf of the [organisation], I encouraged the youths to involve in social activities including promoting environmental awareness and supporting sports activities.
It should be noted that the my place [Village 1] is a very rural village. There was no adequate transport facilities there. It was considered as one of the backwards areas in Nepal.
I confirm that the above contents have been read back to me in Nepalese.
The Tribunal notes the following evidence of relevance given by the applicant in the interview with the delegate. In that interview the applicant refers to a fear of harm from Maoists and his deceased wife’s family as a result of them blaming the applicant for his Maoist wife’s death in 1997. The applicant indicated in the interview that Maoists had been threatening the applicant from the time that he remarried in 1998. The applicant was asked by the delegate how he escaped harm in these respects in the 17 years between his wife’s death and him coming to Australia. In response the applicant indicated that he left his workplace and went to Kathmandu and different places and that is how he survived. Later in the interview the applicant indicates that since 2006 there were changes in the country and after that he realised he could be safe from Maoists.
The applicant give evidence that threats from ethnic groups in relation to the proposed Constitution and federalism had continued since 2013. The delegate noted to the applicant that he had taken the opportunity to travel out of Nepal in 2014 and yet he returned in the context of claims that his life was threatened. In response, the applicant indicated that he did not know he could stay safely in the places that he travelled to. The applicant also indicated that he did not feel safe in those countries.
The applicant provided the following documents as part of his application:
·Submissions from the applicant’s migration agents, dated 27 July 2016 (see summary below);
·Letter from the applicant detailing [Organisation 2] in support of the applicant's visitor visa, dated 6 January 2016;
·Letter from the applicant sponsoring himself on behalf of [Organisation 2] in relation to the applicant’s visitor visa, dated 6 January 2016;
·An invitation from [Mr J], Director of Conference Design, for the applicant to attend [a conference in Australia on human rights and other social issues], dated [in] November 2015; and
·Letters of support in regards to the applicant’s application for work rights on his bridging visa.
In advance of the first Tribunal hearing the applicant provided further documents. There is a copy of the original and a translation from the [office bearer] of [a municipality], Gorkha dated [in] October 2017. It makes reference to the applicant’s ex-wife being killed [in] December 1998. A media report is provided which refers to the killing of eight Maoists. The letter from the rural municipality indicates that the applicant had to leave Nepal for reasons of this killing. It is further indicated that after the blockade by India against Nepal in 2015 Nepalese citizens have been harassed and persecuted by Indian authorities. India is claimed not to be a safe place for Nepalese people.
A translation of a media report was provided from a Nepalese daily newspaper dated 18 August 2017 headed ‘Arrest of Nepali citizen in India: Detained in false allegation’. In the first Tribunal hearing the applicant indicated that this was provided in order to indicate the lack of safety for Nepalese in India.
In advance of the first Tribunal hearing, an affidavit was provided, dated 17 August 2019, of [Mr A], who indicates that the applicant is his eldest brother. It claims that the applicant left Nepal for political reasons. The applicant’s wife was killed [in] December 1998 in crossfire between the Maoists and the police. There was a threat from the Nepal army and Maoists so the applicant left for India. However it was hard for the applicant to live and work in India because Indian security forces harassed and falsely prosecuted Nepalese nationals. As a result, the applicant went to Australia.
The affidavit indicates that the peace process with the Maoists has not been completed in Nepal. One faction of the Maoists has started to raise weapons against the government and exploded a bomb in Kathmandu, destroyed telecommunications equipment and shutdown schools. This faction of Maoists has frequently visited the family home in Gorkha and asked about the applicant for recruitment in the militia. It is indicated that the applicant is no longer safe in Nepal.
Submissions
The written submission dated 27 July 2016 from the applicant’s migration agent refers to independent reports from 2011 referring to human rights issues in Nepal and harm and difficulties faced by human rights institutions and activists, lawyers and victims defending their rights in Nepal. There is reference to the US Department of State 2016 report on Nepal indicating that the most significant human rights problem occurred in the context of excessive force by security personnel in relation to the finalisation of the new Constitution, especially in the Terai region.
It is submitted that the information supports the position that human rights defenders face constant threats from state and non-state actors. There is a lack of a state response to threats and physical attacks against human rights defenders. Many human rights defenders continue to work under a threat of violence.
Submissions are made with respect to the legal tests applying to the criteria for protection. There are submissions made in relation to state protection and the lack of a potential for internal relocation. A submission is made that relocation to India is not a viable option for the applicant due to his human rights activities.
It is submitted that the applicant meets protection criteria based on his political opinion and his membership in a particular social group of human rights defenders in Nepal.
On 28 August 2019 (after the first Tribunal hearing but before the second hearing) the applicant’s representative submitted eight printouts from news reports concerning Maoist relations in Nepal. These were:
·An article from The Indian Express dated 2 January 2016, concerning the announcement by Netra Bikram Chand ‘Biplab’ that he will form a splinter Maoist group, and has formed a “peoples council” and warning of another armed insurgency. The article mentions that there have been complaints of individuals threatened if they did not donate to the group, and also states that there are concerns that the Maoists did not hand over their entire armoury during the peace accord.
·A Himalayan Times article dated 25 July 2016, referring to CPN Maoists torching two taxis which drove, despite a strike imposed by their leader, Netra Bikram Chand.
·A Himalayan Times article dated 16 August 2016, which mentions ongoing strikes by the CPN Maoist’s All Nepal National Independent Students’ Union (Revolutionary). The strike had caused a shutdown of educational institutions across Nepal.
·A Himalayan Times article dated 9 May 2017, referring to the detention of CPN Maoists by police for launching anti-election activities. The article states that the central committee member Krishna Bahadur Pariyar was among the detained. The article states that nine of the detainees were associated with the party’s combatants.
·A Himalayan Times article dated 16 November 2017, mentioning the detention of five CPN Maoist leaders.
·Another Himalayan Times article dated 13 April 2018, which refers to the police re-arresting seven CPN Maoist cadres, including the central member Kiran Rai, following their release on bail. The seven were initially arrested on 19 March and charged with bombing an election candidate’s residence.
·An article from Redspark dated 7 July 2018, concerning a clash between police and CPN (Biplap) Maoists who had been running a cultural programme against corruption and alcohol. The article states that two security personnel and several Maoists were injured, and the police arrested three Maoists.
·An article from the Independent dated 26 May 2019, referring to two bombings in Kathmandu, leaving three dead and six injured. The article quoted a police statement that the working theory was that a Maoist splinter group was behind the bombings.
Independent information
DFAT Country Information Report – Nepal, 1 March 2019 includes the following information:
RECENT HISTORY
2.1 Nepal was established as an independent monarchy in 1769 when Prithvi Narayan Shah, the ruler of the small principality of Gorkha, united 46 independent states to form the Gorkha Kingdom. Hereditary monarchs have ruled Nepal for most of its history.
2.2 Between 1960 and 1990 a system of local governance known as panchayat was used throughout the country. A panchayat is a council of elders at the village level historically common across South Asia. In the Nepali system, representatives from local councils would be sent to increasingly larger panchayat up to the national level.
2.3 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.
2.4 In February 2005 the then-king assumed absolute power in a coup supported by the army. A people’s movement in April 2006 and a joint alliance of democratic parties and the Maoists forced the king to relinquish direct rule. Parliament subsequently agreed to abolish monarchical rule, and Nepal became a republic in 2008 with the election of the first Constituent Assembly. The Maoists formed the first government, which proved to be short-lived, resigning in May 2009. A coalition government was then formed until it, too, resigned in July 2010. In September 2011, Dr Baburam Bhattaerai of the UCPN-M party formed government with the Madhesi alliance from the Terai. Political stalemate and questions concerning Nepal’s federalist structure and how to accommodate ethnic and linguistic minorities led to the dissolution of the first Assembly in 2012.
2.5 After repeated delays, elections for the second Constituent Assembly were held in November 2013. International observers described the elections as free and fair, with a voter turnout of 78 per cent despite threats of violence by a break-away Maoist group. The Nepali Congress (NC) and the Communist Party of Nepal (Unified Marxist-Leninist) or CPN (UML) were elected to govern Nepal under a coalition agreement that gave them an almost two-thirds majority in the Assembly. The UCPN-M, which had led the insurgency and had dominated the 2008 election, managed to secure only 80 of the 575 directly elected seats.
2.6 An 85 per cent majority vote by Constituent Assembly lawmakers on 16 September 2015 approved a new Constitution which was subsequently promulgated on 20 September 2015. The new Constitution was agreed upon after considerable negotiation and delays. The political stalemate surrounding the development of a new constitution had ended in June 2015 when the four major political parties agreed to proceed with negotiations, focusing on the key points of federalism, the form of government and elections, and the judiciary. Under the new Constitution, Khadga Prasad Oli of the CPN-UML was elected Prime Minister in October 2015.
2.7 On 25 April 2015 a 7.9 magnitude earthquake struck Nepal. The earthquake and its subsequent aftershocks killed an estimated 8,891 people and injured tens of thousands of people. Significant damage was incurred to national infrastructure, buildings and homes and reconstruction efforts continue several years after the disaster.
2.8 A border blockade was imposed, notionally implemented by Madhesi communities but unofficially blamed on India, from September 2015 to February 2016. The blockade caused shortages of fuel and other commodities throughout Nepal, severely affecting its economy.
2.9 Several changes of government, including realignment of coalitions, resulted in two further changes of Prime Minister before national elections were held over two phases in November and December 2017. These saw landslide results in favour of the Left Alliance comprised of the CPN-UML and the CPN-Maoist Centre parties. The two parties merged in early 2018 to form the Nepal Communist Party (NCP), which now holds a close to two-thirds majority in the Federal Parliament, led by Prime Minister KP Oli for his second term. The coming years will see Nepal’s complex transition to a new federalist system.
…
POLITICAL SYSTEM
2.33 Nepal transitioned from a constitutional monarchy to a federal democratic republic in 2008 and operated under an interim constitution until the new Constitution came into force on 20 September 2015 (See Recent history). The constitution federated seven provinces based on ethno-linguistic identity and economic viability. The Constitution establishes a bicameral federal parliament consisting of a House of Representatives and a National Assembly, as well as unicameral provincial parliaments. Representation of disadvantaged and or minority groups, including women, Dalits, Madhesi and Muslims, is required in both houses of the national parliament.
2.34 The President is the head of state, and has largely ceremonial powers. The President is elected by members of the Federal Parliament and the state assemblies. Nepal’s first female Head of State, President Bidhya Devi Bhandari, assumed office in October 2015. The leader of the CPN-UML, Khadga Prasad Oli, was elected Prime Minister in October 2015, becoming Nepal’s seventh head of government since 2008 and the first under the new constitutional arrangements. Nepal’s cabinet is chosen by the Prime Minister in consultation with their party and any coalition partners.
HUMAN RIGHTS FRAMEWORK
2.35 Nepal is party to: the Convention of the Elimination of all forms of Racial Discrimination; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment; the International Covenant on Civil and Political Rights and its Optional Protocols; the Convention of the Elimination of all forms of Discrimination Against Women; and the Convention on the Rights of the Child. Nepal is not a party to the 1951 Refugee Convention or its 1967 Protocol.
2.36 Many basic human rights are enshrined in the constitution and are covered in the relevant sections of this report. Although the constitution is quite comprehensive in guaranteeing many rights, implementation of these protections is often lacking. In practice, many of these rights are enforceable in court, but access to the courts may be difficult, especially for the poor.
National Human Rights Institution
2.37 Nepal established a National Human Rights Commission (NHRC) in 2000. According to the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, the institution complies with the minimum standards as set out in the Paris Principles, such as independence guaranteed by statute or the constitution, autonomy from the executive, pluralism, a broad mandate based on universal human rights standards and adequate powers of investigation. The Commission is established under the 2015 constitution.
2.38 The NHRC has the power to conduct inquiries and investigations on its own or upon a petition or complaint into any government institution and can make recommendations to government about human rights matters. The Commission also has a role in research and training on human rights matters.
2.39 The United Nations Human Rights Council and international human rights NGOs have expressed concern about the independence of the NHRC, noting the difficulty in the NHRC implementing its recommendations. Most of the Commission’s recommendations to government relate to conflict-era abuses.
2.40 Nepal’s Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act was passed in 2014. On 10 February 2015, the Nepali government announced that it had formed the Truth and Reconciliation Commission and the Commission for Investigation of Disappeared Persons. The government’s interim relief program provides financial compensation and other in-kind benefits to the family members of people killed or disappeared during the conflict. However, victims of torture or sexual assault have not received compensation from the state. Despite repeated extensions of the Truth and Reconciliation Commission and the Commission on Investigation of Enforced Disappeared Persons, both established under the Act, there has been little progress on transitional justice in Nepal.
SECURITY SITUATION
2.41 The overall security situation throughout Nepal has dramatically improved since the end of the conflict. However, poverty, unemployment, weak rule of law and a culture of impunity are causes of insecurity in Nepal. Recent elections including in November 2017 were affected by violence including political candidates being shot at, improvised explosive devices and landmines being planted and violent protests. Political protests and demonstrations occur regularly and can turn violent without warning. Political parties have been known to enforce strikes (bandhs see Private Sector/Business Community), which can close down transport and business operations for extended periods, although these have occurred less frequently in recent years.
2.42 In September 2015 protests began in the Terai and continued until early 2016. Led primarily by the Madhesi and Tharu groups, (see ‘Ethnicity’ below), these protests arose in part because of concerns about the demarcation of provincial boundaries under the 2015 Constitution.
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POLITICAL OPINION (ACTUAL OR IMPUTED)
3.38 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.
3.39 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.
3.40 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.
3.41 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
3.42 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.
3.43 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.
3.44 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.
3.45 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.
…
Dalits and the Caste System
3.49 Nepal’s caste-based system of social organisation is guided by the Hindu Varna system – a hierarchical allocation of rights, duties and obligations based on a person’s inherited position in society. Caste is seen through the lens of ‘purity’ and is traditionally associated with particular occupations. Caste has a direct and significant impact on a person’s access to education, employment, residence and similar life opportunities.
3.50 Members of the upper castes continue to dominate in government and business, owing to historical practices that prioritised the rights and interests of upper-class elites. Discrimination on the grounds of caste is still widespread, in spite of being outlawed since 1962. The main caste groupings include the priestly Brahmans, who are at the top of the caste hierarchy with the Kshatriya, kings and warriors, beneath them; followed by the Vaishya, merchants, and the Sudra, peasants and labourers. Various groups based on occupational groups traditionally thought to be impure were known as ‘Acchut’, but now call themselves ‘Dalit’, similarly to India. Higher castes are associated with the Hills, however ‘Hill Dalits’ also continue to live in that region.
…
Non-governmental Organisations
3.56 NGOs play an active role in the political landscape, having been particularly engaged in the democracy movement of the 1990s and the mid-2000s. They played a significant role in disaster response to the 25 April earthquake. Over 30,000 local and international NGO and civil society organisations are currently registered with the Social Welfare Council (a public body formally responsible for broadly coordinating the activities of ‘social organisations’). International NGOs are required to be registered with the Council and to submit project plans before they can operate in Nepal. Local NGOs seeking assistance from the Nepali Government, foreign governments or international organisations are required to submit project proposals for approval from the Council. The Council can reject such approvals on national interest grounds. Further approval may need to be sought from district authorities in which NGOs operate. The formal requirements to establish and operate NGOs are onerous, however NGOs continue to be established and to operate in spite of those bureaucratic difficulties.
3.57 People working with NGOs are generally able to do so free from harassment and intimidation, even when they are active in potentially sensitive areas – such as supporting Tibetans, Madhesi or Dalits. However, they do face practical challenges such as accessing adequate funding and people who work with NGOs that scrutinise state actors or examine on-going, unresolved issues from the conflict years can be at a low risk of harassment and intimidation.
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PREVALENCE OF FRAUD
5.45 A black market exists for citizenship certificates and other official documents in Nepal and fake documents and fraudulently obtained genuine documents can be obtained with the appropriate contacts and financial resources. Government officials may ‘sell’ citizenship certificates and Nepalis with citizenship certificates may also provide misleading or false information in support of other people’s applications. The Prevention of Corruption Act (2003) established the Committee for the Investigation of the Abuse of Authority, which has jurisdiction over cases of fraudulent identity documents involving corruption among public officials.
5.46 While fraudulently obtained genuine documentation can be obtained through internal corruption, the lack of centralised record-keeping for civil documentation does not assist in the accurate production of documents. Manual records are still heavily relied upon, particularly in rural areas. A system of Village Head identification also allows for exploitation of this system. Biometrics are not often captured as part of processing of documents and documents often contain minimal security features, if any exist at all.

For the purpose of this decision the Tribunal made a request of the Country of Origin Information Services Section of the Department of Home Affairs to research specific questions relating to the applicant’s claims. The following sets out the Tribunal’s questions and responses provided in a report dated 12 August 2019:
1. Please provide any available information in relation to the applicant and the [Organisation 2] and [Organisation 3].
Information was not located on [Organisation 3].[1]
[1] Sources consulted include CISNET, Google search engine, FACTIVA, local news sources, US Department of State, and UNHCR Refworld.
A Google search found reference to the [Organisation 2] on a website called [Website 1]. When attempts were made to open links, a security warning came up saying the link is not secure and should be closed.
The link to the website of the organisation at [URL] did not open.
No other reference to the [Organisation 2] was located.[2]
[2] Sources consulted include CISNET, Google search engine, FACTIVA, local news sources, US Department of State, and UNHCR Refworld.
…
2. Please indicate whether there is any evidence of the applicant or members of the [Organisation 2] and its offices suffering intimidation or physical harm as a result of their position in relation to the Constitution or otherwise.
Please see the answer to Question 1 above.
…
3. Please provide a brief outline of the final outcome of the Constitution in terms of geographic and ethnic federalism.
In September 2015, Nepal’s Constituent Assembly voted in favour of a new constitution. A September 2015 article in The Diplomat by Hari Phuyal, an advocate in the Supreme Court of Nepal, indicates that the new constitution embraced ‘the principles of republicanism, federalism, secularism, and inclusiveness’.[3] According to the article:
[3] ‘Nepal's New Constitution: 65 Years in the Making’, Phuyal, H, The Diplomat, 18 September 2015, 20190807180658
Under the constitution, Nepal’s new federal structure will see the country divided into seven provinces, with clear lists of legislative powers for the central, provincial, and local bodies. The Tharu and Madhesi groups had contended that provinces should be demarcated based on the concentration of ethnic populations, which are spread east to west in the southern part of the country. The three major parties, the Nepali Congress (NC), Communist Party of Nepal (Unified Marxist-Leninist) (CPN-UML), and the United Communist Party of Nepal (Maoist) (CPN-M), objected to this idea, arguing that fulfilling such a demand would cause other protests and violence demanding still more ethnically-based provinces.[4]
[4] ‘Nepal's New Constitution: 65 Years in the Making’, Phuyal, H, The Diplomat, 18 September 2015, 20190807180658
The article also notes that:
Tharu and Madhesi critics demanded that the constituencies of the Legislative-Parliament be divided on the basis of population alone. Nepal’s three main parties denied this request, stating that representation must be based on both population and geography, in order to include the vast hilly and mountainous areas that have a low population density. Their proposal is that, of the 165 directly-elected seats in the Legislative-Parliament, one seat will belong to each of the 75 districts and the remaining 90 will be divided based on population. The other 110 seats of the Legislative-Parliament, which will have a total of 275 seats, will come from the proportional votes to the parties and should grant priority to women, the Janajati and Madhesi ethnic groups, and other marginalized communities.[5]
[5] ‘Nepal's New Constitution: 65 Years in the Making’, Phuyal, H, The Diplomat, 18 September 2015, 20190807180658
According to Article 56(3) of the Constitution of Nepal, ‘[t]here shall be States consisting of the Districts as mentioned in Schedule-4 existing in Nepal at the time of commencement of this Constitution’.[6] Schedule 4 of the constitution lists the districts to be included in each of the seven states in Nepal.[7]
[6] ‘Constitution of Nepal’, Amended to 28 February 2016, Government of Nepal, 20 September 2015, CISEC96CF17383
[7] ‘Constitution of Nepal’, Amended to 28 February 2016, Government of Nepal, 20 September 2015, CISEC96CF17383
Part 8 of the constitution covers the Federal legislature, consisting of the House of Representatives and the National Assembly, which are called the Federal Parliament.[8] Pursuant to an amendment gazetted in February 2016, Article 84(1) of the constitution was amended to read as follows:
[8] ‘Constitution of Nepal’, Amended to 28 February 2016, Government of Nepal, 20 September 2015, CISEC96CF17383
The House of Representatives shall consist of a total of two hundred and seventy five members, as follows:
(a) One hundred and sixty five members to be elected through the first past the post electoral system, with one being elected from each election constituency of one hundred and sixty five election constituencies delimited in the country on the basis of population, and geographical convenience and specificity;
(b) One hundred and ten members to be elected through the proportional electoral system where voters vote for political parties, with the whole country being considered as a single election constituency.[9]
[9] ‘Constitution of Nepal’, Amended to 28 February 2016, Government of Nepal, 20 September 2015, CISEC96CF17383; See also: ‘Nepal: New Constitution Amended’, Global Legal Monitor, 27 January 2017, CXC9040661179
Under Article 84(2) of the constitution, ‘[t]he Federal law shall provide that, in fielding candidacy by political parties for the election to the House of Representatives under the proportional electoral system, representation shall be ensured on the basis of a closed list also from women, Dalit, indigenous peoples, Khas Arya, Madhesi, Tharu, Muslims and backward regions, on the basis of population. In so fielding candidacy, regard shall also be had to geography and territorial balance’.[10]
[10] ‘Constitution of Nepal’, Amended to 28 February 2016, Government of Nepal, 20 September 2015, CISEC96CF17383
Article 86(2) of the constitution, on the composition of the National Assembly, states:
The National Assembly shall consist of fifty nine members as follows:
(a) fifty six elected members consisting of at least three women, one Dalit and one from persons with disabilities or minorities, from each State by an electoral college composed of members of the State Assembly, chairpersons and vice-chairpersons of the Village Bodies, and Mayors and Deputy-Mayors of the Municipalities, with different weightage of vote by members of the State Assembly, chairpersons and vice-chairpersons of the Village Bodies, and Mayors and Deputy-Mayors of the Municipalities, as provided for in the Federal law,
(b) Three members consisting of at least one woman nominated by the President on recommendation of the Government of Nepal.[11]
[11] ‘Constitution of Nepal’, Amended to 28 February 2016, Government of Nepal, 20 September 2015, CISEC96CF17383
Article 42(1) of the constitution was also amended in February 2016 to read ‘[t]he economically, socially or educationally backward women, Dalit, indigenous nationalities, Madhesi, Tharu, Muslims, backward classes, minorities, marginalized communities, persons with disabilities, gender and sexual minorities, farmers, labourers, oppressed or citizens of backward regions and indigent Khas Arya shall have the right to participate in the State bodies on the basis of principle of proportional inclusion’.[12]
[12] ‘Constitution of Nepal’, Amended to 28 February 2016, Government of Nepal, 20 September 2015, CISEC96CF17383; See also: ‘Nepal: New Constitution Amended’, Global Legal Monitor, 27 January 2017, CXC9040661179
Also, Article 286(5) of the constitution was amended to read ‘[w]hile determining election constituencies pursuant to this Article, the Election Constituency Delimitation Commission shall, subject to sub-clause (a) of clause (1) of Article 84, determine the constituencies in a state in accordance with the federal law, having regard to the population as the main basis and geography as the second basis for representation, and there shall be at least one election constituency in each district within the state.[13]
[13] ‘Constitution of Nepal’, Amended to 28 February 2016, Government of Nepal, 20 September 2015, CISEC96CF17383; See also: ‘Nepal: New Constitution Amended’, Global Legal Monitor, 27 January 2017, CXC9040661179
A March 2019 Department of Foreign Affairs and Trade (DFAT) country information report on Nepal indicates that the new constitution, which ‘came into force on 20 September 2015… federated seven provinces based on ethno-linguistic identity and economic viability’. The report also indicates that ‘[r]epresentation of disadvantaged and or minority groups, including women, Dalits, Madhesi and Muslims, is required in both houses of the national parliament’.[14]
[14] ‘DFAT Country Information Report: Nepal’, Department of Foreign Affairs and Trade, 1 March 2019, p.12, 20190301094546
A June 2019 article in The Diplomat states:
During their insurgency, the Maoists pushed for the creation of a federal state structure to decentralize power from Kathmandu. Later, in 2007-08, Madhesis – a historically marginalized group from the southern Terai region – also led protests in favor of federalism. Federal governance was seen not only as a way to ensure greater local accountability for office holders, but also as way to give ethnic minorities control over government in local constituencies where they formed a majority of the population.
The Constitution of 2015 met some, but not all, of these demands. It created seven new provinces and several hundred local government constituencies. However, most of the provinces were delineated based on geographical rather than ethnic boundaries. Since they were formed in 2017, local and provincial governments have been stymied by disputes with the federal government over concurrent powers, such as those related to taxation and natural resources. The central government, which has the most revenue, has been reluctant to fund provincial governments, and it has delayed reassigning bureaucratic staff to the local and provincial levels. Many question whether central-level officials are genuinely committed to federalism.[15]
[15] ’11 Years on, Has Nepal’s Republic Succeeded?’ , Gill, P, The Diplomat, 14 June 2019, 20190617121640
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4. Please provide any indication of current lingering tension and protests or harm towards groups or individuals in relation to the Constitutional process, noting that the Constitution has been finalised for a number of years.
There are continuing demands by Madhesi groups advocating for the rights of the Madhesi population in Nepal for the 2015 constitution to be amended.
The March 2019 DFAT country information report on Nepal indicates that ‘[a]n 85 per cent majority vote by Constituent Assembly lawmakers on 16 September 2015 approved a new Constitution which was subsequently promulgated on 20 September 2015. The new Constitution was agreed upon after considerable negotiation and delays. The political stalemate surrounding the development of a new constitution had ended in June 2015 when the four major political parties agreed to proceed with negotiations, focusing on the key points of federalism, the form of government and elections, and the judiciary’.[16]
[16] ‘DFAT Country Information Report: Nepal’, Department of Foreign Affairs and Trade, 1 March 2019, p.8, 20190301094546
An April 2016 International Crisis Group (ICG) report notes that while the Constituent Assembly passed the new constitution ‘with close to a 90 per cent majority… key constituencies felt their interests were not adequately represented in that final vote’. The parties representing the ‘Madhesi and smaller indigenous Tharu communities of the plains, who together are close to a third of Nepal’s population, had only about 10 per cent of the assembly seats’.[17] According to the report, ‘Madhesi, Tharu, janajati, Dalit, religious minorities and women’s groups – all considered historically marginalised – believe the new statute and the process by which it was rushed through diluted commitments to meaningful federalism, redress for historical, structural discrimination based on ethnic and religious identity and gender, and democratic consultation’.[18]
[17] ‘Nepal’s Divisive New Constitution: An Existential Crisis’, Asia Report No. 276, International Crisis Group, 4 April 2016, p.1, CISEC96CF15328; See also: ‘BTI 2018 Country Report – Nepal’, Bertelsmann Stiftung, 23 March 2018, pp.3-4, CIS7B83941563
[18] ‘Nepal’s Divisive New Constitution: An Existential Crisis’, Asia Report No. 276, International Crisis Group, 4 April 2016, p.i, CISEC96CF15328
From September 2015 until early 2016, there were protests led primarily by the Madhesi and Tharu groups in the Terai which ‘arose in part because of concerns about the demarcation of provincial boundaries under the 2015 Constitution’.[19] DFAT reported in April 2016 that the protests ‘had a significant effect on Nepal’s industry and economy’ as they blockaded the largest crossing on the border with India. DFAT further reported that ‘Nepal’s security forces (mainly police) were heavily involved in responding to the Terai protests and police reportedly opened fire on civilians in some instances’. There were ‘[o]ver 40 deaths, both civilians and police… reported’.[20] The April 2016 ICG report indicates that at the passage of the new constitution, ‘anti-constitution protests had already shut down the southern Tarai plains for almost six weeks, with 46 deaths, including one on that day: seven police killed by protesters in one incident and 39 civilians shot by police, including young and elderly people’. Twelve more civilians had ‘died subsequently’.[21] The Australian Broadcasting Corporation (ABC) reported in January 2016 that ‘[m]ore than 50 people have been killed in clashes between police and people protesting against the constitution introduced in September, which demonstrators said left them politically marginalised’.[22]
[19] ‘DFAT Country Information Report: Nepal’, Department of Foreign Affairs and Trade, 1 March 2019, p.13, 20190301094546
[20] ‘DFAT Country Information Report: Nepal’, Department of Foreign Affairs and Trade, 21 April 2016, p.8, CIS38A8012676
[21] ‘Nepal’s Divisive New Constitution: An Existential Crisis’, Asia Report No. 276, International Crisis Group, 4 April 2016, p.1, CISEC96CF15328
[22] ‘Nepal votes to amend constitution in bid to resolve months-long stand-off with protesters’, Australian Broadcasting Corporation (ABC) News, 24 January 2016, CX6A26A6E16062; See also: ‘Country Reports on Human Rights Practices for 2016 - Nepal’, US Department of State, 3 March 2017, Section 1(a), pp.2-3, OGD95BE926881; ‘Country Reports on Human Rights Practices for 2015 - Nepal’, US Department of State, 13 April 2016, Section 1(a), p.2, Section 2(d), p.16 & Section 6, p.40, OGD95BE926172
In January 2016, Nepal’s ‘major parties passed two amendments related to more inclusive representation in state organs and delineation of constituencies’.[23] The members of the parliament from ‘political parties representing the Madhesi boycotted the amendment vote, calling its revised provisions inadequate’.[24] Madhesi parties and protesters said the amendments did ‘not adequately address their grievances. Like the constitution, they were adopted unilaterally by the largest parties, losing the legitimacy they would have had as the outcome of a political negotiation’.[25]
[23] ‘Nepal’s Divisive New Constitution: An Existential Crisis’, Asia Report No. 276, International Crisis Group, 4 April 2016, p.i, CISEC96CF15328
[24] ‘Nepal: New Constitution Amended’, Global Legal Monitor, 27 January 2017, CXC9040661179
[25] ‘Nepal’s Divisive New Constitution: An Existential Crisis’, Asia Report No. 276, International Crisis Group, 4 April 2016, p.i, CISEC96CF15328
The European Union Election Observation Mission to Nepal 2017 reported that the ‘135 day-long blockade of the border with India… ended in February 2016, without Madhesi demands for a constitutional amendment being addressed’.[26]
[26] ‘Final Report – Nepal’, European Union Election Observation Mission to Nepal 2017, 20 March 2018, p.9, CIS7B83941806
In November 2016, a further constitution amendment bill was registered in Nepal’s parliament.[27] In January 2017, it was reported that ‘the Madheshi Front, an alliance of Madhesh-centric political parties’, would only compete in local body elections when parliament considered an amendment in the constitution amendment bill.[28]
[27] ‘Nepal: Madhesi Groups Accept the New Amendments: A Welcome Move – Update No. 341’, South Asia Analysis Group, 12 December 2016, CX6A26A6E16059; ‘Madheshi Front to boycott elections without constitution amendment: Bhandari’, Republica, 31 January 2017, CXC9040661186; ‘Constitution Amendment In Nepal: An Unlikely Proposition – Analysis’, Eurasia Review, 8 December 2016, CX6A26A6E16060
[28] ‘Madheshi Front to boycott elections without constitution amendment: Bhandari’, Republica, 31 January 2017, CXC9040661186
Human Rights Watch reports that in February 2017, ‘protests flared up over demands for constitutional amendments from Terai-based political parties seeking a greater role in governance’.[29]
[29] ‘Human Rights Watch World Report 2018’, Human Rights Watch, 18 January 2018, p.388, NGED867A63
In March 2017, supporters of the Samyukta Loktrantrik Madhesi Morcha (SLMM), an alliance of Madhesi parties boycotting the 2017 local elections in Nepal, protested against an election rally of the CPN-UML, who did not support constitutional amendments favouring the Madhesi.[30] Security forces opened fire on a group of Madhesi protesters after protesters attacked a police station and public buildings, and targeted police with stones.[31] The US Department of State reported that five people were killed and dozens injured in the incident,[32] while Amnesty International stated that ‘five protesters were killed and 16 others injured’.[33] Human Rights Watch said there were four deaths and dozens of injuries.[34]
[30] ‘Nepal Investigation urgently needed after security forces shoot protesters dead’, Amnesty International, 7 March 2017, CXC9040664916
[31] ‘Nepal: Use Proportionate Force While Policing Protests’, Human Rights Watch, 9 March 2017, CXC9040663709
[32] ‘Country Reports on Human Rights Practices for 2017 – Nepal’, US Department of State, 20 April 2018, Section 1(a), pp.1-2, OGD95BE927382
[33] ‘Amnesty International Annual Report 2017-2018’, Amnesty International, 22 February 2018, p.275, NGED867A612
[34] ‘Human Rights Watch World Report 2018’, Human Rights Watch, 18 January 2018, p.388, NGED867A63
On 11 April 2017, the government withdrew the earlier constitution amendment bill and tabled a new one in parliament.[35] The Madhesi parties said the content of the new constitution amendment bill ‘was different from what was agreed with the government’, and decided to boycott the ‘next month’s local elections and hold fresh protests’.[36] On 20 April 2017, six Madhes-based parties merged to form the Rastriya Janata Party-Nepal (RJP-N). The RJP-N subsequently boycotted the first phase of local body elections held on 14 May 2017 and the second phase of the elections held on 28 June 2017.[37] In June 2017, there were reports of arbitrary arrests and detention, as well as excessive use of force by security forces against persons protesting the second phase of local level elections in the Terai region.[38]
[35] ‘Constitution amendment bill fails in Parliament’, The Kathmandu Post, 22 August 2017, CXC90406618814
[36] ‘Madhesis reject new Nepal constitution amendment bill, to boycott local polls’, Livemint.com, 12 April 2017, CXC9040665871
[37] ‘Constitution amendment bill fails in Parliament’, The Kathmandu Post, 22 August 2017, CXC90406618814
[38] ‘Nepal: Respect human rights during elections’, Amnesty International, 27 June 2017, CXC9040669602
In August 2017, the RJP-N requested the government to put the constitution amendment bill to a vote, and agreed to join the third phase of the local polls to be held on 18 September 2017. On 21 August 2017, the constitution amendment bill failed to pass parliament by 48 votes. The ruling Nepali Congress and CPN (Maoist Centre) could not obtain the necessary votes, with the CPN-UML and a number of other parties voting against the bill.[39]
[39] ‘Constitution amendment bill fails in Parliament’, The Kathmandu Post, 22 August 2017, CXC90406618814
In addition to the local body elections held in 2017, provincial and national parliamentary elections were held in Nepal in November and December 2017. Human Rights Watch reports that ‘[a]lthough there were some incidents of violence, and a section representing Madhesi communities maintained their call to boycott the polls, the elections were largely considered free and fair’.[40]
[40] ‘Human Rights Watch World Report 2018’, Human Rights Watch, 18 January 2018, p.389, NGED867A63
During the provincial and national parliamentary elections, Madhesi-based parties, the Sanghiya Samajbadi Forum-Nepal (SSF-N) and the Rastriya Janata Party Nepal (RJPN), campaigned on ‘[t]he promotion of the rights of the Madhesi population and their demand for a constitutional amendment’.[41]
[41] ‘Final Report – Nepal’, European Union Election Observation Mission to Nepal 2017, 20 March 2018, p.20, CIS7B83941806
The report of the European Union Election Observation Mission to Nepal 2017 indicates that ‘[p]olitical freedoms, including association, assembly and expression, were well-respected in the law and in practice, despite of a series of violent attacks on candidates and campaign events’. The report also indicates that ‘[a]lmost 1,000 people were held in preventive detention during the electoral period on allegations of disrupting the elections. There was little public opposition to this practice, apart from some protest at the arrest of Madhesi activist C.K. Raut on election day’.[42] The report also notes that ‘[t]he arrest of eleven journalists, as well as of some Madhesi activists advocating spoiling the ballot, appeared to amount to arbitrary detention as the intention could appear to be to suppress political dissent and the expression of opposition to the elections. The journalists and other non-violent activists were released without charge subsequent to the elections’.[43] Freedom House reports that ‘the heavy presence of the army in Madhesi regions during the 2017 campaign and election period prompted some anxieties among residents of those areas’.[44]
[42] ‘Final Report – Nepal’, European Union Election Observation Mission to Nepal 2017, 20 March 2018, pp.18-19, CIS7B83941806
[43] ‘Final Report – Nepal’, European Union Election Observation Mission to Nepal 2017, 20 March 2018, p.12, CIS7B83941806
[44] ‘Freedom in the World 2018 – Nepal’, Freedom House, 1 August 2018, D. Freedom of Expression and Belief, NGED867A698
The RJPN won 17 seats and the SSF-N won 16 seats in the House of Representatives in the election. A Left Alliance between the CPN-UML and the Communist Party of Nepal-Maoist Centre (CPN-MC) was successful in the elections, with the CPN-UML winning 121 seats in the 275-member House of Representatives, and the CPN-MC securing 53 seats.[45]
[45] ‘Nepal Has a New Prime Minister. Now Comes the Hard Part.’, The Diplomat, 17 February 2018, CXBB8A1DA22803; ‘Final Report – Nepal’, European Union Election Observation Mission to Nepal 2017, 20 March 2018, p.53, CIS7B83941806
The US Department of State reports that during 2017, ‘Terai-based Madhesi political parties in particular used strikes throughout the year to draw attention to, and gain support for, their political demands’.[46]
A February 2018 article in The Diplomat indicates that a ‘lingering challenge’ for the new government ‘will be the ongoing demands of Madhes-based parties to amend the 2015 constitution in order to increase their voice in the federal system’. Nepal’s new prime minister, K P Sharma Oli, and the CPN-UML had ‘rejected the possibility of any constitutional amendment in the near future’.[47]
In August 2018, it was reported that ‘[n]o move has so far been made to amend the Constitution that was promised to one of the Madhesi groups that joined the Government. The other Madhesi Group the RJP N is likely to withdraw its support soon as a protest against the inaction of the Government’.[48]
Another August 2018 article in The Himalayan Times indicates that ‘[t]he Federal Socialist Forum-Nepal and Rastriya Janata Party-Nepal, which jointly contested parliamentary and provincial polls vowing to fight unitedly to empower Madhesis and other marginalised communities, have parted ways with the FSF-N joining the government and the RJP-N choosing to sit in the opposition. The RJP-N is more vocal about the issues of Madhesi empowerment, including constitution amendment’.[49]
In September 2018, Asian News International reported that ‘Madhesi lawmaker Pramila Kumari, a member of Nepal’s Upper House and the representative from the Federal Socialist Forum’, had ‘demanded for fulfillment of commitments made by Prime Minister KP Oli to amend the constitution. Oli, in his quest for power, had promised to amend the constitution for the upliftment of communities such as Madhesis, Muslims, Dalits, women and the indigenous people, who lag behind in the Human Development Index’. Kumari had ‘also questioned Oli’s intentions regarding the promises he had made and lamented his government’s treatment of Madhesis as “non-citizens”.’[50]
A further September 2018 article in The Kathmandu Post indicates that ‘[t]hree years after the promulgation of the new constitution, political parties are still struggling to amend the provisions that remain contentious among the disgruntled parties and ethnic groups’. The article states that ‘[t]wo major Madhesi parties are divided in their views of the Constitution Day. The Rastriya Janata Party-Nepal has planned protest programmes while the other major Madhesi bloc, including Sanghiya Samajbadi Forum-Nepal, has chosen to remain silent’. The SSF-N had ‘decided to join the government after the ruling Nepal Communist Party (NCP) assured it of amending the statute. Tempted by an overwhelming majority necessary for amending the constitution, the RJP-N has been firm in supporting the KP Oli administration despite opposition within the party’. The article also states that ‘[t]he major issues concerning the Madhes-based parties include recognition of all ethnic languages, naturalised citizenship, provincial representation in the National Assembly on the basis of population, and demarcation of federal units’.[51]
In October 2018, the RJP-N ‘submitted a memorandum to Prime Minister KP Sharma Oli demanding to initiate the process of amending the constitution’. The ‘RJP-N leader Keshav Jha said the four RJP-N leaders told the PM that if their demands were not met by Tihar festival, then they would launch agitation. Revision of provincial boundaries is one of the major demands of the RJP-N and the Federal Socialist Forum-Nepal’.[52]
In November 2019, however, The Himalayan Times reported that a rift in the RJP-N ‘over its decision to rotate the leadership of the presidium every two months is hindering the party from taking a decision on its pledge to withdraw support to the government after Chhath festival for failure to address the party’s demands’. According to the article, ‘[t]he RJP-N had demanded that the constitution be amended and false cases slapped against its cadres be withdrawn’.[53]
A March 2019 article about Chandra Kant Raut, a prominent secessionist leader, signing an agreement with the Nepal government to give up demands for an independent Madhes state in return for a commitment to drop all charges against him,[54] refers to comments by Bhaskar Gautam, a political scientist associated with North South Collectives, a centre for social and policy research. Gautam said that ‘[c]onstitution amendment in Madhes is a genuine call. Recently, Madhes-based political parties have instrumentalised this call mainly to gain power, thus making the call weaker and without significant organised voices to back it up’.[55]
In April 2019, it was reported that ‘[t]here is yet no sign of getting the constitutional amendments to satisfy the Madhesi groups’.[56] A June 2019 article in The Kathmandu Post also indicates that the government had not taken steps towards amending the constitution.[57]
[46] ‘Country Reports on Human Rights Practices for 2017 – Nepal’, US Department of State, 20 April 2018, Section 2(d), p.16, OGD95BE927382
[47] ‘Nepal Has a New Prime Minister. Now Comes the Hard Part.’, The Diplomat, 17 February 2018, CXBB8A1DA22803
[48] ‘Nepal: Five Months of Oli’s Rule: A Disappointment?’, South Asia Analysis Group, 4 August 2018, CXBB8A1DA33391
[49] ‘Madhesis believe RJP-N is the only party fighting for their rights’, The Himalayan Times, 13 August 2018, CXBB8A1DA33395
[50] ‘Madhesi lawmaker demands PM Oli to deliver on Constitution amendment commitment’, Asian News International, 13 September 2018, CXBB8A1DA35274
[51] ‘Amendments on back burner as country marks Constitution Day’, Pradhan, T R, The Kathmandu Post, 19 September 2018, 20190809180620
[52] ‘Memo submitted seeking statute amendment’, The Himalayan Times, 9 October 2018, CXBB8A1DA36900
[53] ‘Intra-party rift in RJP-N widens’, The Himalayan Times, 29 November 2018, CXBB8A1DA39659
[54] Raut ‘has been in and out of jail a dozen times on charge of anti-state activities’. ‘Nepal: CK Raut joins mainstream politics averting conflict?’, Qazi, S, Aljazeera, 22 March 2019, 20190326113054. Freedom House reports that he ‘was arrested in October 2018 on charges of disturbing law and order and voicing views against the state and nationality, over his remarks at a demonstration’. ‘Freedom in the World 2019 – Nepal’, Freedom House, 2019, B. Political Pluralism and Participation, 20190812112939
[55] ‘Nepal: CK Raut joins mainstream politics averting conflict?’, Qazi, S, Aljazeera, 22 March 2019, 20190326113054
[56] ‘Nepal: Two Third Majority For Oli Has Not Worked – Analysis’, Chandrasekharan, S, South Asia Analysis Group, 6 April 2019, 20190408110549
[57] ‘Samajbadi Party in informal talks with Rastriya Janata Party for merger’, Pradhan, T R, The Kathmandu Post, 28 June 2019, 20190812132253
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 is satisfied that the applicant is a citizen of Nepal and accordingly his claims will be assessed against Nepal.
The Tribunal has the following credibility concerns with the applicant’s claims.
Firstly, in the first Tribunal hearing, in response to detailed questions as to why the applicant fears harm in returning to Nepal, the applicant failed initially to make any mention of his sole claims initially made as part of his application for protection.
In the applicant’s detailed written statement provided on 1 March 2016 as part of his protection visa application he indicates that the (main) basis on which he fears harm in returning to Nepal is from his involvement in a political/human rights group and harm from political and ethnic groups who held a contrary view as to the structure of the federal system in the proposed Constitution.
The Tribunal sought to explore with the applicant comprehensively in the first Tribunal hearing the various reasons for which he fears harm in returning to Nepal. The Tribunal had, at some length, sought to elucidate from the applicant in the hearing the reasons why he claimed harm in returning to Nepal. The applicant indicated that there are three reasons. He fears harm from security officials – the army. The applicant fears harm from his ex-wife’s family. The applicant fears harm from Maoists and in particular the Biplap faction. The Tribunal sought to confirm with the applicant if these were the entire reasons on which he claims harm on return to Nepal. The applicant indicated no other reasons - he stated that these were enough reasons to fear harm.
Later in the hearing the Tribunal noted to the applicant that his original written statement had referred to a fear of harm from political and ethnic groups who hold a contrary view as to the structure of the federal system in the proposed Constitution. In those claims the applicant indicated harm on this basis and based on being a defender of human rights. The Tribunal asked the applicant why this had not been included as a reason in the earlier and comprehensive discussion as to the various reasons why the applicant feared harm in returning to Nepal.
In response the applicant said that this was a fourth reason why he feared harm in returning. The applicant indicated that he had not originally mentioned this in his written claims because of a fear in doing so on the basis of a potential lack of confidentiality. The Tribunal pointed out that he had indeed made such a claim in his initial written statement but not to the Tribunal hearing in its extensive exploration as to his claimed fears of harm. At this point the applicant indicated that he was worried about confidentiality in the hearing.
The Tribunal is not satisfied as to this explanation. The protection visa application has been on foot for several years and the applicant has legal representation. The Tribunal considers that the applicant would, at a much earlier stage in the proceedings, have been assured as to the confidentiality. In addition, the Tribunal explained to the applicant at the commencement of the hearing that the hearing was confidential.
In any event it does not make sense that the applicant would be worried about confidentiality in providing evidence about difficulties in relation to past advocacy in relation to the Constitution because he had already made detailed claims to that effect to the Australian government as part of his original application for protection.
The Tribunal is not satisfied that confidentiality is a reason why the applicant did not tell the Tribunal in the hearing that he has a fear of harm based on activities or views in relation to the federal structure of the Constitution or based on being a human rights activist.
The failure of the applicant to make any mention of this fear in the Tribunal hearing is undermining of this being a reason for the applicant fearing or facing harm on return to Nepal.
Secondly, the failure by the applicant to make mention in his protection visa application and a detailed accompanying and subsequent written statement as to fears from Maoists, army and from the family of the applicant’s ex-wife who was killed is undermining of claims that he fears or faces harm on this basis.
There is no mention at all of this in the applicant’s detailed statement provided with his application for protection.
In a subsequent written claim provided by the applicant five months after he lodged the protection visa application he provides relevant background information including the fact that his ex-wife was a Maoist and was killed in a gun fight with authorities. However, in this statement the applicant provides no additional grounds as to why he faces harm in returning to Nepal beyond his human rights and political involvement, particularly concerning the Constitution. In particular, he indicates no harm from Maoists, the army or his wife’s family as a result of her death.
Claims in relation to harm from Maoists and his ex-wife’s family were, however, made in the interview with the delegate.
The Tribunal explored with the applicant in the hearing why he did not make any of these claims as part of his initial application or detailed written statements.
In response, the applicant indicated that he was scared about confidentiality and that Maoists have killed a lot of people.
The Tribunal considers that the applicant would have become aware relatively soon after starting the protection visa process that it was confidential and not have felt constrained in revealing key claimed areas of harm. The Tribunal particularly notes the second written statement provided by the applicant five months after the protection visa was lodged making reference to his Maoist ex-wife being killed by authorities yet not providing any indication of the applicant himself fearing harm from Maoists, the army or from his ex-wife’s family (or the army).
The Tribunal notes that both the applicant and his brother have given evidence that there was constant harassment of the applicant by Maoists after the applicant relocated to Kathmandu in 1998. Indeed, on the applicant’s evidence in the first hearing he said that he left for India in 2002 or 2003 fearing for his safety as a result of the harassment from Maoists.
The Tribunal does not consider that if there was this level of claimed harassment and difficulties from Maoists, this would not have been included as part of the applicant’s initial claims for protection as well as in subsequent written statements. The Tribunal has similar concerns in relation to the applicant’s failure to initially mention harm from his ex-wife’s family and from the army.
Thirdly, the applicant provided evidence to the delegate that contradicts claims now that the applicant faces harm in Kathmandu from Maoists. In that interview the applicant was asked, if he was at risk of harm from Maoists since 1998, how he remained in the country for the next 17 years. In response, the applicant indicated that he went to different places in Kathmandu; that is how he survived. Later in that interview, the applicant indicated that since 2006 (the end of the civil conflict) there were changes in the country and after that time he realised he could be safe from Maoists.
This evidence was put to the applicant in the Tribunal hearing as inconsistent with claims now that he faced in Kathmandu or now faces harm from Maoists. In response, the applicant indicated that the situation was hopeful for a period but then there were ethnic issues and the applicant had to think.
The Tribunal does not consider that this explains why the applicant told the delegate that he was safe in Kathmandu from Maoists and that the situation improved in 2006, to now indicating that there were ongoing and frequent threats and harassment from Maoists from 1998 throughout the whole period that the applicant was in Kathmandu.
The inconsistency on this issue is undermining as to the applicant’s credibility as to claims of harm from Maoists and the applicant’s credibility generally.
Fourthly, there are inconsistencies which, at best, amount to significant overstatements as to the applicant’s political involvement and activities in terms of human rights and the federal structure of the Constitution. In the Tribunal hearing the applicant indicated that even though he was [office bearer] of [Organisation 2], he was not able to focus on the role as much as he would have liked because of the other areas in which he was facing harm. The applicant indicated that there were approximately 12 members of the organisation in total, in two different branches. The applicant indicated in the hearing that these branches were meeting at the time that he left to come to Australia.
(The applicant was asked in the first hearing as to the relationship between the [Organisation 2] and [Organisation 3]. The applicant did not provide a clear explanation in relation to this. The applicant seemed to suggest that the reference in his written claims to [Organisation 3] was as a result of an error in memory.)
The applicant’s original written claims refer to ‘many’ of the branches (of the [Organisation 2]) being closed as a result of threats. The use of the term ‘many’ would imply more than two. Further, as put to the applicant in the Tribunal hearing, his evidence in the hearing was that these branches were still operating when he came to Australia.
In response, the applicant indicated that there was an intention to recruit more members and open further branches but this intention did not materialise because of the threats.
This remains at odds with the written claims that there were ‘many’ branches that were closed (which would indicate existing branches).
The Tribunal acknowledges that this is an inconsistency on a tangential and relatively detailed point. Nevertheless it is not an unimportant contextual detail as to the claimed level of the applicant’s political and human rights activities. This is not an issue that is given significant adverse weight but it does buttress more significant credibility concerns.
Fifthly, in relation to the applicant having indicated to the delegate relative safety when moving away from Gorkhka in 1998, the applicant’s contrary claims in the first Tribunal hearing of facing harm or threats during his many years in Kathmandu were generalised and vague. The applicant’s evidence lacked the specificity and detail that the Tribunal would have expected if the applicant was recounting events which actually occurred.
When asked to provide details as to instances of harm experienced, the applicant referred to one incident as part of his political involvement where there were threats from opposing ethnic groups. However, the applicant managed to avoid specific harm on this occasion.
When the Tribunal asked for any further detail or instances of threats and harm (noting that in the applicant’s written claims he refers to threats to his life from leaders of political parties), the applicant indicated that he used to be surrounded by Maoists all the time saying that they would kill him, but he would encounter good friends and the situation became easier for him.
The content of this and other responses to non-prompted questions as to harm suffered by the applicant was highly generalised and did not convey an impression that the applicant was recounting events that actually happened. The Tribunal also notes that the applicant in the hearing did not, in response to a number of questions as to instances of threats and harm, provide any detail of specific individuals who were leaders of a political party threatening the applicant as is indicated in his written claims.
The applicant did indicate in the hearing that the office of the [Organisation 2] and a [business] which he ran were vandalised but information was not provided in response to general questions as to harm suffered. It was only indicated by the applicant when he was reminded of earlier claims to this effect.
Sixthly, inconsistent evidence has been provided as to the applicant travelling to India. The supporting written statement by the applicant’s brother indicates that the applicant fled to India to avoid problems in Nepal from the Maoists and the Nepalese army. In the first Tribunal hearing the applicant indicated that he travelled to India in about 2002 or 2003 but only stayed there for one to two weeks. The evidence of the applicant in the first Tribunal hearing suggested that he had only been to India on this one occasion.
In contrast, in the first Tribunal hearing, the applicant’s brother, [Mr A], gave evidence that the applicant had been to India on several occasions. He referred to the applicant spending a few months, but not longer than a year there in 2070 and 2072 (in the Nepalese calendar). The Tribunal notes that this evidence would mean that the applicant had travelled to India in 2013 or after, rather than, on his evidence, 2002 or 2003, and for a significantly longer time frame than the applicant indicated in his evidence.
These inconsistencies were put to the applicant in the second Tribunal hearing. In response the applicant indicated that he told his family that he was going to India on multiple occasions to escape harm but instead he went to other parts of Nepal.
The Tribunal is not satisfied as to this explanation. The Tribunal sees no reasonable basis on which the applicant would have to provide misinformation to his family members as to where he needed to travel to escape from harm.
The Tribunal considers that this was a constructed and untruthful explanation to account for the clear inconsistencies between the evidence of the applicant and his brother.
The Tribunal also notes that in the application forms for the protection visa, when the applicant is asked as to other countries visited he provides no reference to trips to India but does provide evidence of a number of overseas trips in 2014. In the second Tribunal hearing this inconsistency was put to the applicant. In response the applicant indicated that he thought he only needed to provide details of countries for which a visa was required.
The question in the application form does not limit the request for countries visited in this respect. The Tribunal is not satisfied as to this explanation.
There are, therefore, a number of glaring inconsistencies as to whether, and the circumstances in which, the applicant travelled to India to escape harm in Nepal.
The Tribunal takes the inconsistencies as undermining of the truth of the applicant’s claims that he fled to India for the reasons claimed and as to the applicant’s overall credibility.
Seventhly, independent information extracted in this decision would not support the position that a person who was involved with a small political/human rights organisation advocating a geographically structured Constitution or grassroots human rights issues would in Nepal today face a real chance of serious or significant harm.
This was discussed with the applicant in the second Tribunal hearing. The Tribunal indicated to the applicant that the claimed position by the applicant and his organisation on the Constitution and federation, namely it being geographically rather than population focused, is the position that was essentially adopted in the finalised Constitution and was endorsed by the three major political parties.
Given this level of support, the applicant himself would not be expected to be a target for harm based on a view that his advocacy was crucial or overly significant in achieving the desired result.
Whilst there have been ongoing issues raised by minority interest groups in terms of amendments to the Constitution, the independent information would not suggest such current political disturbance and unrest in relation to the Constitution that the applicant would be at a real risk of serious or significant harm having been involved previously in the debate surrounding the Constitution, including noting that the applicant indicated that he would not be politically involved on return to Nepal.
The applicant did not directly respond to this issue despite a number of questions asked by the Tribunal. The applicant did indicate that if he felt safe in returning to Nepal he would do so.
The Tribunal also noted to the applicant in the second Tribunal hearing that the DFAT report on Nepal indicates that people working with NGOs are generally able to do so free from harassment and intimidation, even when they are active in potentially sensitive areas. This was further undermining of claims that the applicant would be harmed in Nepal today based on past involvement in supporting human rights issues. In response the applicant indicated that whilst everything might seem good on paper the reality is different and people are more destructive and seek revenge.
The Tribunal takes at face value the information provided in the DFAT report given that it is sourced from officials ‘on the ground’ in Nepal.
The Tribunal does acknowledge independent information provided by the applicant as to difficulties faced by human rights defenders and advocates in Nepal. Whilst the Tribunal is prepared to accept that there have been difficulties faced by human rights advocates in particular situations, the DFAT assessment would indicate that it is not a widespread and common issue.
In the second Tribunal hearing, the applicant sought to qualify his indication in the first Tribunal hearing that he would not be politically involved on return to Nepal. He indicated that he would be involved in grassroots human rights issues such as matters relating to the treatment of women and the dowry.
The Tribunal does not consider that the weight of independent information supports the position that the applicant would face a real chance of serious or significant harm based on being involved in Nepal in small-scale human rights advocacy. On the basis that the applicant would not continue to be involved in political matters relating to the Constitution, the Tribunal does not think that the applicant faces a real chance of serious or significant harm based on small scale advocacy in relation to the Constitution undertaken a number of years ago.
Eighthly, the DFAT report on Nepal indicates that Maoists now have the potential to control the national agenda without resorting to violence. DFAT assesses that political opponents of Maoists do not face violence unless they participate in violent demonstrations.

The Tribunal indicated to the applicant in the second Tribunal hearing that this information is undermining of claims that the applicant would face harm on return to Nepal from Maoists.
In response, the applicant referred to the Biplap Maoist splinter group which is not part of the Government and is creating difficulties. When the Tribunal put to the applicant why he would be targeted by this splinter group which, on his evidence, was formed in 2016, when the claimed reasons for the Maoists attacking the applicant occurred in 1998, the applicant referred to the same individuals targeting the applicant being involved in the Biplap splinter group.
The Tribunal acknowledges that the independent information does indicate some recent incidents in Nepal from Maoists, including clashes with authorities and bombings in Kathmandu.
However, the Tribunal is not satisfied on the independent evidence that these are sustained and systemic events. The Tribunal is of the view that the weight of independent information indicates that, mostly, Maoists do not seek to control the political agenda through violence.
The Tribunal has significant plausibility concerns that the Biplap Maoist splinter group which formed in 2016 would carry over an ongoing intent to track down and harm the applicant from events that occurred in 1998 in relation to other Maoist groups, particularly on the basis of the applicant having been out of Nepal since January 2016.
The Tribunal has considered these eight credibility issues cumulatively. Considered together, they are significantly undermining of the credibility and truthfulness of the applicant and whether the protection criteria are met. The Tribunal is not satisfied as to key substantive claims by the applicant. The Tribunal is not satisfied that the applicant has been an ongoing target of Maoists, including the Biplap faction, the army or security forces or from his ex-wife’s family since his wife’s death in 1998. The Tribunal is not satisfied that there have been attempts by Maoists to track down and harm or recruit the applicant, including in recent times, in Kathmandu, Gorkha or elsewhere. The Tribunal is not satisfied that there has been past or ongoing intent by the family of the applicant’s ex-wife to seek to harm the applicant.
In making these findings, the Tribunal has taken into account the written and oral evidence of the applicant’s brother, [Mr A]. The Tribunal has noted in credibility issue seven the inconsistent evidence between the applicant and his brother as to travel by the applicant to India, and the failure by the applicant to refer to prior trips to India in his protection visa application. Whilst the Tribunal acknowledges that on other matters the applicant’s brother gave evidence consistent with the applicant’s claims, that consistency does not overcome the cumulative effect of the various credibility concerns adverse to the applicant’s credibility and truthfulness. The Tribunal is not satisfied that [Mr A]’s evidence was substantially truthful.
The Tribunal has also taken into account the letter provided by the [office bearer] of [a municipality] in Gorkha seeking to corroborate that the applicant had to leave Nepal for reasons surrounding the death of his ex-wife. As noted to the applicant in the second Tribunal hearing, the DFAT report on Nepal indicates the ready ability to obtain fraudulent documents in Nepal. The Tribunal indicated to the applicant that the Tribunal would need to consider that this letter was not genuine considering the Tribunal’s numerous credibility concerns with the applicant particularly, in this respect, his failure to initially make claims as to harm as a result of circumstances surrounding his ex-wife’s death, as explained in the first credibility issue above. In addition, the Tribunal noted that the contents of the statement in relation to the risk to the applicant in India seemed very self-serving to the applicant’s claims and not the type of comments that would be within the remit or expertise of a Nepalese municipality authority. In response, the applicant said that the Tribunal could further investigate the authenticity of the documents. The applicant indicated that everything he had indicated and provided was true.
The applicant’s representative submitted that the DFAT information only indicated fraudulent documents in specific categories. The Tribunal indicated that the DFAT report is more general. It indicates the prevalence of fraudulent ‘other’ official documents.
The Tribunal is not satisfied that this apparent corroborating information is genuine or overcomes the cumulative impact of the various credibility concerns identified.
Given the Tribunal’s findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm from Maoists, the army/security forces or his ex-wife’s family as claimed.
The applicant’s written claims suggested that the applicant was claiming a risk of harm in Nepal based on his caste. The applicant indicated that he is of the Brahman caste. In the first Tribunal hearing, the applicant acknowledged that this was the highest and most respected caste. The Tribunal asked the applicant to explain why he feared harm on the basis of being of the highest caste. The applicant provided responses which were not readily comprehensible to the Tribunal. In the second Tribunal hearing, the Tribunal noted to the applicant the DFAT information extracted in this decision noting that Brahmans are of the highest caste and highly represented in government and business. The lowest castes, the Dalits, are the caste which can suffer discrimination and mistreatment. The Tribunal indicated that the independent information would not support the position that the applicant would be subject to mistreatment and discrimination based solely on being a member of the Brahman caste. In response, the applicant indicated that the risk to him is based on a combination of factors, which cannot be separated.
The applicant had indicated in his written claims that he fears harm in Nepal based on political unrest and clashes with neighbouring countries. The Tribunal noted to the applicant that independent information it had concerning the situation in Nepal, including the DFAT report, did not refer to either internal unrest or external conflicts which would create a generic real risk of serious or significant harm to all Nepalese residents. In response, the applicant indicated that he acknowledges that he would not be at risk as a result of clashes with neighbouring countries. The applicant referred to the fact that he has to struggle in Australia compared to the life that he would be able to make in Nepal and that if there was safety for him in Nepal he would have an incentive to return.
Considering all of the evidence, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm based on being of the Brahman caste or due to generalised civil unrest or conflict between Nepal and foreign countries.
The Tribunal is prepared to accept that the applicant had been involved in a small human rights/political group that advocated a geographically structured federation in the new Constitution that was promulgated in 2015. The Tribunal is prepared to accept that there were skirmishes and verbal altercations between the applicant, his group, and advocates of an ethnically focused/population based federalism, and minor vandalism of an office and [business]. The Tribunal is not satisfied that ‘many’ or any branches of the [Organisation 2] were closed as a result of disturbances. On the applicant’s own claims, the Tribunal is not satisfied that he ever suffered any physical harm.
The Tribunal accepts that the applicant would wish to continue to be involved in small-scale human rights advocacy in Nepal on issues such as the rights of women and the dowry.
The Tribunal is not satisfied, particularly on the basis of credibility issues four and seven, that the applicant today in Nepal fears or faces a real chance of serious or significant harm based on that prior or future political/human rights involvement.
In the second Tribunal hearing, the Tribunal put to the applicant certain information in accordance with the procedural requirements of s.424AA of the Act. That was information on the Department file concerning information received by an anonymous person indicating that the applicant’s protection visa claims had no legitimate basis. It was noted that this information could be undermining of claims that the applicant had genuine claims for protection. In response the applicant indicated that not every person has supported him but that everything he has told the Tribunal has been the truth.
The Tribunal has had no opportunity to question the unidentified person who made this allegation. The allegation is not given any adverse weight by the Tribunal.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s.5J(1) of the Act for any of the reasons claimed. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk of him suffering 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 criteria 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 6688

10 September 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction