1613923 (Refugee)

[2017] AATA 172

1613923 (Refugee) [2017] AATA 172 (22 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613923

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Andrew Mullin

DATE:22 January 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the Applicant a Protection visa.

Statement made on 22 January 2017 at 4:59pm

CATCHWORDS

Refugee – Protection visa – Nepal – Particular social group – Lesbian – Family violence – Killing of partner – Physical assault – Threats of killing

LEGISLATION

Migration Act 1958, ss 36, 65, 425, 438(1)(a), 499
Migration Regulations 1994, Schedule 2

CASES

Luu & Anor v Renevier (1989) 91 ALR 39

MIEA v Guo & Anor (1997) 191 CLR 559

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MIEA (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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The Applicant, who claims to be a citizen of Nepal, applied for the visa [in] January 2012 and the delegate refused to grant the visa [in] October 2012.  The Applicant applied to the Tribunal for review of the delegate’s decision and on 9 December 2013 the Tribunal, differently constituted, affirmed the decision.  The Applicant sought judicial review and [in] August 2016 the Federal Circuit Court ordered that the decision be set aside and the matter remitted to the Tribunal for determination according to law.

   RELEVANT LAW

3. 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, the applicant 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.

4. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

5. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to 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 nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

6. 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 a protection 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 the applicant 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’).

7. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

8. The Tribunal has before it the Departmental and Tribunal files relating to the Applicant.  The Tribunal has also had regard to the material referred to in the delegate’s decision, which was provided to it with the application for review, and other material available from a range of sources.

9. In her protection visa application the Applicant claims, in summary:

   ·She was born in [year] in [Village 1], a small village in the East of Nepal and lived at an address in [Village 1] from [year] to 2008.  The population of the village consists mainly of farmers and they adhere strictly to Hindu cultural and religious traditions.  Most girls are married before the age of fifteen and arranged marriages are very common.  She received a total of [number] years of formal education at [School 1], ending in [year].  She arrived in Australia [in] May 2009 as the holder of a [temporary] visa.

   ·She was born biologically a girl but from her childhood she resisted wearing girl’s clothing and demonstrated many masculine behavioural characteristics.  Her parents punished her for this almost every day.

   ·When she became a teenager she formed very strong sexual feelings towards other girls.  It was too difficult for her to approach them in her small village and she tried hard to fight her feelings because she knew they would cause her trouble.

   ·In 2005 she became attracted to a classmate, [Ms A] and they soon fell in love.  They shared a lot of time together at school and at home and she was very happy.  When their sexual relationship was revealed everyone in the village began talking about them.  Her parents banned her from attending school and locked her in her room.  Her father would beat her at night, saying she was a disgrace to his family.

   ·After some time she was permitted to attend school once more, provided she was accompanied by a family member there and back.  On her first day she learned that [Ms A] had been [killed] by her parents and brothers.  Everyone at school was talking about the ‘honour’ death she had deserved.  The Applicant could not believe the news and the trauma remains with her.  Her life changed and she stopped talking to others at school.  She became increasingly isolated at home and her family saw her as a disgraceful person, wishing she had not been born.

   ·When she finished High School she was forced to marry a man who was going to [Australia].  She tried hard to explain her feelings towards him but such feelings are unable to be understood in Nepal.  He tried to make her happy but he suffered when he found she was not very interested in having sex with him.

   ·In Australia she had an opportunity to find herself again.  She made friends with a lot of women who shared her feelings.  Many lesbians made friends with her and her husband and respected them. 

   ·In October 2011 she heard her mother was ill and decided to visit her parents for a couple of weeks.  The villagers were still the same and she could still see their hatred.  When people knew she was back they began talking about [Ms A’s] tragic death and wished an honour killing on her.  [Ms A’s] brothers talked to her father and told him she had to die.

   ·Her mother asked her to leave the village because it was too dangerous for her.  She went to Kathmandu for the last week of her visit and then returned to Sydney. 

   ·She is a victim of the discriminatory social rules of a people who cannot accept or understand an individual’s ‘biological gender differences.’

10. Together with the protection visa application the Applicant provided:

    ·A number of photographs showing the Applicant with other persons in family settings.

    ·A photocopy of an English-language document on the letterhead of [Village 1] Development Committee attesting to the Applicant’s birth in the village on [date].

    ·A photocopy of an English-language marriage certificate recording that the Applicant was married to [her husband] in [Village 1] [in] September 2008.

    ·Photocopies of Federal Magistrates Court documents indicating that the Applicant was divorced from her husband [in] August 2011.

    ·A handwritten letter in English on the letterhead of [School 1], dated [in] January 2012 and signed by [the] Principal.  The writer certifies that the Applicant studied in the school from March [year].  ‘While she studied here, her behaviour was like boys.  We had a lot of counselling to behave like girls but she didn’t.  Due to her boys like behaviour, the school sometimes had to face problems too.’

11. The Applicant reiterated her claims at a protection visa interview [in] September 2012.

    ·Asked why [Ms A’s] family had not harmed her after she returned to school she said her father kept her hidden in her room.  Asked again she said he kept her hidden in a hostel, away from the family home.  Asked why she would continue to attend school if she was in danger of being killed by members of [Ms A’s] family she said her parents were keen for her to continue with her education and did not want her to miss her final exams. 

    ·It was put to her that it seemed difficult to accept [Ms A’s] family would wish to harm her, seven years after [Ms A’s] death.  She said they wished to do so because she had damaged [Ms A’s] father’s status.

    ·It was put to her that her family had protected her from [Ms A’s] family, ensured that she completed her education and tolerated her wearing masculine clothing and that she had returned from Australia to visit them in October 2011.  She agreed her family had accepted her.

    ·Asked if she had ever sought protection from the police against harm directed at her over her sexual orientation she said she had not done so as she never expected protection from them.  She said the police would not protect somebody like her, and that there were no police in her village.  She agreed police protection would be available in Kathmandu.

    ·It was put to her that the available country information indicates that attitudes toward homosexuality are more tolerant in Kathmandu and other cities in Nepal.  She said that if she went back to Nepal to live it was inevitable that she would be discovered and killed one day.  Media reporting does not reveal the true situation.  The Maoists are still killing people and it is not possible to return.

12. The Applicant provided the Tribunal with a copy of the delegate’s decision record together with a number of media articles concerning the treatment of homosexuals in Nepal and a 2013 report entitled ‘The Violations of the Rights of Lesbian, Gay, Bisexual, Transgender, and Intersex Persons in Nepal’ prepared by the Blue Diamond Society and the Heartland Alliance for Human Needs and Human Rights.  She also provided a further statement summarising her claims and dealing with the mistreatment of homosexuals by Nepalese society.

    First Tribunal hearing

13. The Applicant discussed her claims at a hearing before the Tribunal, previously constituted, on 28 November 2013, assisted by an interpreter in the Nepali and English languages. 

14. In remitting the matter to the Tribunal for reconsideration, the Federal Circuit Court found that the standard of the interpretation provided at the hearing was, unknown to the Tribunal Member, so deficient as to deny the Applicant a genuine opportunity to give evidence and present arguments relating to the issues under review, as required by s.425 of the Act. This being so, I am unable to place any reliance on the interpreted oral evidence given by the Applicant at the hearing and I have disregarded it in its entirety.

    Second Tribunal hearing

15. The Applicant appeared before me at a Tribunal hearing on 22 December 2016 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Nepali and English languages, accredited at NAATI 2 level.  This was not the interpreter who assisted in the first hearing.

16. The Applicant’s evidence was, in summary:

    ·She left Nepal because she is a lesbian.  Everyone, including her parents and members of society, was against her and she came to Australia because of their bad attitude to her.  Asked what she had feared would happen to her she said the father and [brothers] of her partner [Ms A] had said they intended to murder her.  They had killed their own daughter and they were threatening to kill her as well.  The people in the village are farmers and they have very old-fashioned views.

    ·Asked when it was that these people killed their own daughter she said it was a long time ago.  Asked again she said she was not aware of the date but thought it happened in 2006.  As to why these people would wish to kill her as well as their daughter she said she had been in a lesbian relationship with [Ms A] and these kinds of relationship are not permitted.

    ·Asked how she knew these people wished to kill her she said they had begun threatening her father after [Ms A] was murdered, saying to him that they would not leave her alone.  She was not sure when this began.  Noting that [Ms A’s] death was in 2006 I asked how she knew they still wished to kill her.  She repeated they had told her father this after [Ms A’s] death.  Asked again she said that when she returned to Nepal in 2011 her mother told her it was a very dangerous situation as they were still searching for her.  I asked if she meant that when these people were searching for her in 2011 they knew she was in the village.  She said she was not sure of this – her mother told her not to stay in the village but to go to Kathmandu and then return to Australia as soon as possible.

    ·Asked if she feared harm from anyone other than [Ms A’s] father and brothers she said she was intimidated by society, which is very superstitious: anything could happen if she returned.  Asked whom she meant by this she said she was referring to people surrounding her village.  These are people who like to back-bite and say nasty things about her.  Because of this there was a strong possibility that she could be diagnosed with depression and she might die.  Asked if she had been diagnosed with depression in Australia she said she had not - she was very happy here. 

    ·Asked if she feared any physical harm from other members of society she said they are very old-fashioned and bad; if they knew about her sexual orientation they might think of forcing her out of the village and murdering her.  They would believe that because of her their children would go in ‘different directions.’  Asked if she meant they did not know about her being a lesbian she said they did.  Because of this they were scared that their children would follow in the same path.  Asked if such people had ever harmed her when she was in Nepal she said she had not.  However, people were back-biting about her.  It was not possible for her to stay and she was never happy there. 

    ·Regarding her background in Nepal she said she lived in her parents’ home in [Village 1] from birth.  Her parents are now living there by themselves.  Her father is a farmer and owns a small piece of farmland where he cultivates [crops].  Asked if she lived anywhere else in Nepal she said she did not but then agreed she had lived in Kathmandu for a year.  When I drew her attention to the inconsistency in these responses she said her parents made her live there for a year, for security.

    ·Asked about her residence in Kathmandu she said it was after ‘that incident’ occurred.  To the suggestion that this would have been in 2006 she said she thought it was but she could not be sure.  Asked where this was in Kathmandu she said she did not know as she was locked inside a room.  She confirmed she meant she was locked inside a room for a year, eating all her meals there.  Nobody was allowed to enter the room.  Asked if she meant she had never left the room she then said she came out and moved around the house but had never gone to the city.  Asked who was living in the house with her she said it was a male friend of her father, whom she did not know.  Her parents did not stay there but visited frequently.  She had not seen anyone else in the house. 

    ·I put to her it seemed most unlikely that a family from a traditional village in Nepal would leave their daughter with a male person in a house for a year, even if they did visit from time to time.  She said they visited frequently and the man was like a brother and father to her.  I put to her that even if they visited frequently and the man was friend of her father it did not seem likely that she would be left alone with him on many nights in this way.  She said they stayed in separate rooms, adding that in Nepal it is customary to respect others by calling them ‘brother’ or ‘sister.’

    ·Asked if she had been studying when she was in Kathmandu she said she did nothing.  Her parents took her there some time after [Ms A] was killed as there was chaos in the village.  She had returned to school after [Ms A’s] death but felt very isolated.  She finished her [qualification] and her parents tried to force her to marry a person who was coming to [Australia]. 

    ·Regarding her education she said she began studying in [School 1] in 2005 but was not aware when it was that she completed her [qualification].  Asked which school she attended before 2005 she said it was the same school, and she had studied there from Year 1 to Year [number].  She never attended any other school.  Noting that the letter she had submitted from the Principal stated that she had been attending the school since [year], when she would have been eleven years old, I asked if she meant she first attended school at that age.  She said she had a very poor memory and could not remember incidents that happened then.  Asked whether [School 1] has other sections in addition to Senior Secretary School she said it caters for Years [specified years].

    ·Regarding her claim to have been forced into a marriage she said this occurred after she completed her [qualification] and after her return from Kathmandu.  Noting that her marriage certificate showed she was married in September 2008 I asked if she had been living with her husband from then until her departure for Australia some six or seven months later.  She confirmed this was the case and said they lived in Kathmandu after the wedding, which was held in her village.  The wedding was a traditional Hindu one but was attended only by her parents and three or four people from her husband’s side.  Noting that this seemed very unusual I asked why there would be so few attending.  She said her husband was the son of her father’s friend.  Her parents forced her into the marriage so that she could come to Australia and be safe but she was not ready to be married.  Asked if she meant she had not wanted to come to Australia she said she wanted to leave Nepal and her parents wanted her to come to Australia.

    ·She confirmed that she lived with her husband in Kathmandu for six or seven months as man and wife.  He had tried to please her but she was never happy.  She tried to explain to him about herself.  Her husband travelled to Australia first, in April 2009, and she arrived the next month.  They never lived together in Australia and after he came to know about her they were divorced.  I put to her these circumstances could give a strong impression that she had paid this man to marry her – or possibly that there had not even been a genuine marriage – so that she could come to Australia.  She denied this was the case.  Asked why her marriage certificate was entirely in English she said this is usual.

    ·She said her husband is now in [a different city] and she has not spoken to him for a long time.  She sometimes speaks to her mother, the last occasion being four to five months ago.  Asked why her contacts should be so infrequent, [she] said society does not like her, her father does not like her and it is only her mother who supports her.

    ·She confirmed her claim that when she was growing up in Nepal she would dress and behave like a boy.  She confirmed her claim that because of this her father would beat her almost every day.  I suggested that, as a child, she would not have had any choice in the clothes she wore but would have done as her parents told her.  She said this was the way she was born and she, rather than her father, chose what she would wear.  I suggested again that as a child in a village in Nepal the choice of clothing would not have been hers.  She said her village was not like this.  Asked if she meant that in her village children could wear what they liked, without their parents having any control over them, she said she did not mean this but it was her right, as a Lesbian, to wear what she wanted.  I explained I was not contesting this right but that I had some difficulty in believing she was beaten almost every day when she was a child because of her choice of clothing.  She maintained these things happened.

    ·Asked about [Ms A] she gave her full name as [Ms A’s full name].  She said [Ms A] had lived in the village, in a house near hers.  They were the same age but she was not sure when her birthday was.  They met for the first time in 2005 when the Applicant [reached a specified year of education].  Recalling her claim that she had attended the school for a number of years before this I asked where [Ms A] had been.  She said she did not know this – she met her in school.  Asked which class she was in when they met she said she was in Year [number].  Regarding their relationship she said they would talk to each other about their difficult situation.  The relationship flourished and later they began to love each other. 

    ·Asked how long the relationship lasted she said it was approximately ‘five months to a year.’  Asked if they had gone out together in public she said they sometimes did so.  Asked what things they did she said they would hang out in public places.  I asked if she could give me some idea of the things they had done in public.  She said they would talk and share their feelings.  If they did not meet for even a day they would feel anxious – this was why they would meet and chat.  I asked if there was anything else – such as going out together for a meal.  She said they did.  I put to her that these responses were giving me no idea of what she might have done in public with this person.  She said they would go to open spaces and restaurants to talk to each other.  They liked to stay in peaceful places.  Asked if she and [Ms A] had gone out with groups of other people she said they had not.

    ·She confirmed that she had had a physical relationship with [Ms A] and that this was discovered when one of her friends noticed it.  Then the villagers began to back-bite.  Asked what this friend had noticed she said she found out that she and [Ms A] would hang out together and had a different sort of relationship – a physical relationship.  Asked how this friend had discovered the physical relationship she said it was because she and [Ms A] would stay together in the classroom and chat.  I suggested close friendships between young girls are very common in most cultures, that this behaviour would not have appeared at all unusual if it had been observed in a school in Nepal and that it would not have led to a suspicion of a sexual relationship.  She said everything is acceptable in Australia but the situation is very different in Nepal.  I put to her, again, that having been seen chatting with another girl in a classroom would not have led anyone to believe she was a lesbian.  She then said they used to hold hands and kiss – girls would not kiss unless they were lesbians.  Asked if she meant she was kissing [Ms A] in school in front of other people she said she did.  I put to her I found it somewhat hard to believe that, if kissing was a sign of lesbian relationship, she would kiss someone openly in front of others.  She said she loved [Ms A] and to kiss her in public was nothing new to her, adding that people saw them hugging and kissing as well as holding hands.

    ·She confirmed she meant that [Ms A’s] father and brothers killed her because she had been seen hugging, kissing and holding hands.  Her relationship with [Ms A] was flourishing and people did not like it.  There was back-biting in the village and, because of this, [Ms A] was murdered. 

    ·Asked what happened when [Ms A] was murdered she said she (the Applicant returned to school to complete her [qualification].  She felt very lonely and isolated and after completing school her father forced her to marry.  Asked about the circumstances of [Ms A’s] death she said her father knew of the relationship and kept her indoors for weeks.  Later he allowed her to return to school and she heard [Ms A] was killed by her fathers and brothers.  She was shocked at the news.  Asked if she had found out anything more about [Ms A’s] death she said she did not know anything about it – her family killed her.  I put to her that such an incident would have caused a huge outcry in the village.  She agreed this was the case.  I suggested many people would have been talking about it and she agreed this was so.  Asked if she talked to anyone about it she said she did not and that she had not asked anyone.  Recalling her claim that [Ms A] was a person she loved I asked if she had not wished to find out any more details.  She said her father warned that it would not be good for her to pursue enquiries.  I suggested that if [Ms A] had been murdered all the other students in the school would have been full of the story and would have spoken of nothing else for weeks.  She said they did speak about it but it was in an incomplete way.  She had not wanted to discuss it with them. 

    ·(Later in the hearing I noted that the letter she had submitted from the Principal of [School 1] mentioned that her behaviour had been like a boy and that this had caused problems for the school but made no mention of the death of one of his students because of a relationship she had with her.  She said the letter was only in regard to her.  I noted that [Ms A’s] death was connected with her, because of their relationship and that it seemed hard to understand why the Principal would omit any reference to such a dramatic incident as the death of a student.  She said it was true that the incident happened but the Principal’s letter was about her.  To the observation that the letter had been written at her request, to support her claims she said everything the Principal had written was true.  She did not know why he would not have mentioned the whole truth.)

    ·Asked if there was any media reporting of [Ms A’s] murder she said there was not.  I suggested that honour killings are not usual in Nepal and that such an incident would have been a very serious one.  She said the police station was far away and they did not come to investigate or file a report about it.  I noted that there appeared to be no reference on the internet to [Ms A’s] death and that it did not seem to have been reported by the Blue Diamond Society, a Nepalese organization dedicated to advancing the rights of gays, lesbians, bisexuals and transgender people which monitors incidents in which such people are targeted put to her that it seemed difficult to believe the police would have done nothing when a person was murdered in this dramatic fashion.  She said it was a family matter and the family did not want the police to become involved. 

    ·Asked about her claim that she was banned her from going to school after her relationship with [Ms A] was discovered I asked who had banned her.  She said her father did so, for a few days.  During this time he scolded and beat her.  She agreed that she was allowed to return to school to complete her [qualification].

    ·I noted that she had been in Nepal for a period of at least three years following the death of [Ms A], during which she had not suffered any harm.  She said she had been in hiding.  I noted that she was not in hiding but had been going to school.  She said this was not for a long period.  I put to her that if she had been afraid of being killed it seemed hard to understand why she would continue to go to school.  She said she had to complete her [qualification].  I put to her that if she had been in hiding in Kathmandu for a year there were still another two or three years in which she was not harmed.  She said they were searching for her but it was only by luck that they did not find her.  I noted she was living in her house in the village for this time.  She said she was kept in hiding in the village until she was married and went to Australia.  I suggested it seemed hard to believe she would be able to hide in a village.  She said it was up to me to believe or not.

    ·She confirmed her claim that she leads a lesbian lifestyle in Australia and said she has had a couple of relationships.  She was not in a relationship at present.  Asked if she was sharing with anyone in her current residence in [suburb], which appeared to be a two-bedroom apartment, she said she was not, and that she was paying $[amount] a week in rent.  To the observation that this did not seem adequate she then said she was not sharing her room but was sharing the apartment with a couple.  Asked if she had attended any public activities sponsored by the LGBT community in Sydney she said she had not, although she went to lesbian clubs.  After some prompting about an annual gay pride festival in Sydney she identified it as the Mardi Gras, which she had attended on one occasion.

    ·She agreed she had returned to Nepal in 2011 for about five weeks and had stayed in her family home.  Her mother had been ill but told her the situation in the village was unchanged: it was dangerous for her and she should spend some time in Kathmandu then return to Australia.  I put to her that her actions in returning to Nepal to her own village and her own family home could cast doubt on the truth of her claim to fear harm.  She said I should either believe her or inspect her village in a site visit.

    ·Noting that she first arrived in Australia in May 2009 but delayed applying for protection until January 2012, two and a half years later, I put to her that such a delay could cast doubt on the truth of her claim that she came to Australia to obtain protection and that she feared harm in Nepal.  She said it was up to me to decide.

    ·I noted that the Tribunal has country information regarding the situation for lesbians and gays in Nepal, including reporting by DFAT, Human Rights Watch and the Blue Diamond Society, which indicates that although a degree of discrimination remains within the community, there have been rapid improvements in the situation in recent years.  In particular, in 2007-8 the Supreme Court ordered the government to abolish all laws discriminating against lesbian, gay, bisexual, transgender and inter-sex people and to recognise same-sex marriage.  Although the Nepalese government has not complied with all these directions and it is, technically, still possible to prosecute people for homosexual acts these provisions are not being implemented.  Citizens can obtain identity documents showing them as having a third gender.  There have been gay pride parades and transgender beauty contests in Kathmandu and the Blue Diamond Society and other support groups operate in various parts of the country.  In 2014 the Ministry of Women, Children and Social Welfare nominated a person as the focus point for gender and sexual minorities.  While there are still some reports of harassment of LGBI people, including by the authorities, and there is still some level of societal discrimination there are no reports of people suffering severe harm because of their sexual identity.  I put to her this information could suggest that, if she were lesbian in her sexual orientation, she might experience gossip, back-biting and possibly nasty comments if she were to return to Nepal.  While this would no doubt be annoying and unwelcome I had to decide whether it would rise to a level which would require her to be granted protection by Australia.  Invited to comment she said that in her particular circumstances she could not return because [Ms A’s] father and brothers are searching for her.  While she had been able to hide for two or three years this was different from living there the whole time.  She would die if she returned to Nepal and she preferred to do so here.  She added that the backbiting and criticism she would experience might make her depressed, leading her to go mad and die.

    ·I recalled that in her protection visa interview she had claimed that she could not return to Nepal as the Maoists were killing people.  She said the Maoists are still active and the President is selling the country to India.  Asked if there was any reason why the Maoists might harm her she said there was not.

    ·Asked if there was anything she wished to add she said she wanted to request justice.  If she returned to Nepal she would die.  She asked the Tribunal to consider her case very carefully and reach a positive decision.

    FINDINGS AND REASONS

1. On the basis of her passport, which she submitted at the hearing before me, I accept that the Applicant is a citizen of Nepal and that her identity is as she claims it to be.

2. The Applicant claims to fear harm in Nepal at the hands of family members of her murdered partner and from social attitudes opposed to her lesbian sexual orientation.  She has not specifically articulated a Convention ground for this fear but I accept that it can be seen as arising for reason of her membership of the particular social group consisting of ‘lesbians in Nepal.’  I accept that such an entity can be said to exist as a particular social group, in the sense that it is sufficiently identifiable by characteristics or attributes common to all its members, other than a shared fear of persecution, which distinguish it from society at large.  Given all the information before the Tribunal I am also prepared to accept that the Applicant is, in fact, lesbian in her sexual orientation and that if she were to return to Nepal she would be a member of this particular social group.

3. In the present case the Applicant has provided some support for her account in the form of photographs and a number of documents including her marriage and divorce certificates and a letter from the Principal of her school.  At the hearing before me, however, she was able to offer little additional information or clarification of her claims and I found her responses notably vague and uninformative at a number of points on matters which she might reasonably be expected to have been able to describe or explain in some circumstantial detail.  Other elements of her claims at the hearing appeared implausible or internally inconsistent.  Among my concerns with her oral evidence:

   ·It proved difficult to obtain from her a clear idea of the timing or sequence of various significant developments in her life in Nepal, including when she started at [School 1], when exactly she first met her classmate [Ms A], when [Ms A] was killed or when she went to stay in Kathmandu.  I accept that there is a natural difficulty in calculating dates according to the western calendar from the Nepalese calendar but the Applicant gave no sign that she knew even rough dates for some of these developments according to the Nepalese calendar.

   ·Her account of her school career was confused and inconsistent, suggesting at one point that she had attended [School 1] only for her [qualification] (in Years [grades] and – possibly – [grade]) while at another point she claimed that she always attended this school and had gone to no other.  When it was put to her that the evidence in the Principal’s letter indicated she had begun at the school in [year], when she was eleven, she claimed (in my view implausibly) that she had no recollection as to her schooling before then.

   ·Her account of her relationship with [Ms A] was vague and implausible.  It is difficult to understand why she would have been unaware of the birthday of a person with whom she claims to have had a strong emotional and sexual relationship lasting for some time.  It is also difficult to understand why she would claim to have met this person for the first time when they were in Year [number] at High School (her other evidence about her education suggested this might have been in either 2005 or 2006) but would apparently have no idea what she had been doing or where she had gone to school before this.  Her description of the things they did in public together was unilluminating and she seemed unable to provide any circumstantial detail.  Her account of the circumstances in which a friend is said to have discovered the nature of their relationship – by observing them together in a classroom – was implausible and I consider that she changed her evidence with the new claim that they had been seen hugging and kissing when it was put to her that her original claim that they were simply chatting together in the classroom would not have aroused suspicion.

   ·Her responses to questions about the circumstances of [Ms A’s] death were limited to saying that she was killed by her father and brothers because she was in a lesbian relationship.  While I accept that she might have been afraid to ask others openly at the time I consider that if such a death had occurred it would have been very widely discussed in the village and in her school, providing her with many opportunities to learn the details.  Her apparent lack of curiosity about this matter appears inconsistent with the picture she paints of the brutal killing of a person who was very close to her.

   ·I find quite implausible her claim that her parents – farmers from a rural village in Nepal who are said to share the traditional values of their community – would send their young daughter to live for a year in a house in Kathmandu which was owned by a man and in which he was the only other occupant.  When this was put to her she suggested her parents often visited and the person was a friend of her father who was like a father or a brother to her, but I am not satisfied this would overcome the obvious impropriety of such an arrangement.  I also find implausible her original claim that she stayed locked inside her room for twelve months, a claim which she then amended by saying that she was allowed to move around the house.

4. As put to the Applicant at the hearing I have further concerns about the plausibility of her claims, for the following reasons:

   ·If the father and brothers of [Ms A] had intended to kill her it is unclear why they did not try to do so, or make any attempt whatsoever to harm her, in the three or four years between [Ms A’s] death and her departure for Australia in 2009.  Even allowing for her claim to have spent a year locked inside a room in Kathmandu and to have lived there for some months with her husband, this timing indicates that she would have been living in her village for up to two years.  She suggested at the hearing that her parents had kept her in hiding in a safe place in the village but, as put to her, I find it inherently implausible that it would be possible to keep her location a secret in a village over any extended period.  I note as well that if she had been threatened in this way it is difficult to understand why she would have been sent back to school to complete her education.

   ·If she genuinely feared that [Ms A’s] father and brothers would kill her and fled to Australia to find safety in 2009 it is difficult to understand why she would have made a return visit to Nepal in 2011, even if her mother had been ill.  I note that she did not just return to Nepal but went back to her own village and stayed in her parents’ home.  She claims her mother advised her to leave as the situation in the village was too dangerous for her, but I do not accept that she could have been unaware of the views of her mother before she left Australia and, this being the case, it is difficult to understand why she would have taken the decision to return.

   ·Finally, her delay in seeking protection until she had been in Australia for two and a half years casts doubt on the truth of her claim to have a genuine fear of harm in Nepal.  When this was raised with her at the hearing she indicated she had no substantive comment to make.

5. Taking all this information together, while I accept that the Applicant is a lesbian I am not satisfied as to the truth of her claim to have had a sexual partner when she was in High School whose father and brothers killed her when they discovered the nature of the relationship.  It follows that I am not satisfied that such a person’s father and brothers threatened to kill the Applicant or that she was sent to Kathmandu for a year, to be locked inside a house, for her safety.  Nor am I satisfied that a concern for her safety led her parents to force her into a marriage as a means of allowing her to travel to Australia.  I do not accept there is any reason to believe she would be at risk of harm on return to Nepal because of such a past lesbian relationship.

6. As also put to the Applicant at the hearing the country information before the Tribunal indicates that while there is some residual level of discrimination against lesbians in Nepal the situation has improved significantly in recent years, even if all the reforms urged on the government by the Supreme Court have yet to be put in place.  Considering this information together with the country information submitted by the Applicant I accept that people in her village and elsewhere in Nepal might well disapprove of her sexual orientation, and that she might be subjected to what she described at a number of points as back-biting or gossip.  It is possible that these attitudes might be expressed in the form of negative comments or insults.  Such reactions would naturally be unwelcome and upsetting for her but I am not satisfied they could reasonably be seen as rising to the level of serious harm.  Nor am I satisfied there is any evidence to support her claim that they would cause her to fall into depression of a kind which would lead her to take her life.

7. In the light of all the information before the Tribunal I am not satisfied there is a real chance that she would suffer serious harm in Nepal because of her membership of the particular social group consisting of ‘lesbians in Nepal.’  I note that in the hearing before me she explicitly denied that she was at risk of being harmed by Maoists.  She does not claim to fear harm in Nepal for any other reason and no other reason is apparent on the face of the information before the Tribunal. 

8. I am not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason should she return to Nepal, now or in the reasonably foreseeable future, and I am not satisfied that she is a refugee. It follows I am not satisfied she is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   Complementary protection

9. As I have concluded that the Applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

10. As noted, on the basis of the country information before the Tribunal I accept that in Nepal the Applicant might encounter discriminatory attitudes toward her lesbian sexual orientation from other members of society, both within her village and elsewhere in the country.  I also accept that this might be expressed in the form of gossip or negative comment.  However, even taking these reactions at their highest I am not satisfied they could reasonably be seen as amounting to significant harm of a kind which would engage Australia’s complementary protection obligations to her. 

11. Having considered all the Applicant’s claims, individually and cumulatively, I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of her being removed from Australia to Nepal, there would be a real risk that she would suffer harm which would amount to significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk she would be arbitrarily deprived of her life, the death penalty would be imposed on her, she would be subjected to torture, or she would be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment.

12. There is no suggestion that the Applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the Applicant does not satisfy the criterion in s.36(2).

    Material under a public interest non-disclosure certificate

13. The Department file contains a public interest non-disclosure certificate in respect of s.438(1)(a) related documents. I consider that the certificate is not a valid certificate as the material relates solely to ‘internal working documents and business affairs’ No reason has been provided about why the disclosure of the documents would be contrary to the public interest. Nor am I satisfied that any of the documents mentioned are relevant to my decision.

    DECISION

14. The Tribunal affirms the decision not to grant the Applicant a Protection (Class XA) visa.

    Andrew Mullin

    
    Member