1617356 (Refugee)

1617356 (Refugee) [2020] AATA 2223 (6 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1617356
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Hugh Sanderson
DATE:6 April 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 April 2020 at 7:53am

CATCHWORDS
REFUGEE – Protection visa – Nepal –refused to attend hearing – threatened by ex-wife’s family –no evidence provided – willingness to return to Nepal in 2014 – relationship with a Muslim woman – applicant has a right to enter and reside in India– decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 424, 499

Migration Regulations 1994, Schedule 2

CASES

MIMAC v SZRHU [2013] FCAFC 91

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 and Border Protection on 13 September 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 18 April 2016. The delegate refused to grant the visa on the basis that the applicant has a right to reside in India and would not face any persecution or significant harm in India and would not be returned to Nepal.

Background

The applicant is a citizen of Nepal and is currently [age] years old. His parents remain living in Nepal. He has a brother who resides in Australia. The applicant was a student in New Delhi from August 2008 to November 2011. He stated that he spoke English, Nepalese and Hindi.
The applicant first entered Australia [in] September 2008 holding [a] Student visa as a member of the family unit of his then wife, [A] (hereinafter Ms [A]). He was granted a series of Student visas as after that time. He applied for a [Student] visa on 21 December 2012 as the primary applicant which was refused by the Department. The applicant applied for a review of that decision by the Tribunal. The Tribunal affirmed the Department’s decision refusing the application on 18 November 2013. The applicant applied for Ministerial intervention which was declined on 6 August 2014.
The applicant then applied for a [Partner] visa on the basis of his claimed relationship with [B] who he claimed to have met in February 2014 and married [in] July 2014. That application was refused by the Department on 15 October 2014. The applicant applied for a review of that decision before the Tribunal. At the hearing before the Tribunal, the applicant advised the Tribunal that his relationship with Ms [B] had ended and they had not been in touch for a couple of months. He claimed that Ms [B] had only been interested in money and he had not stayed with her. The Tribunal affirmed the Department’s decision. The applicant applied again for Ministerial intervention which was not considered.
The applicant applied for the Protection visa on 13 September 2016. He provided a statement where he made the following claims:

The applicant’s family told him at the end of 2015 that Ms [A]’s family had publicised negative information about him and his family and they had warned his father that they would kill him if they found him in Nepal;
The applicant’s father had reported this to the police, but they had refused to take any action about the threats;
The family of Ms [A] believe that the applicant has ruined her life and for that reason they want to kill him;
As the applicant married Ms [B], who is a Muslim, his family and relatives have announced they would boycott him and his father told him not to come back to Nepal;
The applicant has a few relatives who lived near the Nepalese/Indian border but due to ongoing trouble from the Nepalese Madhesi Group it is too dangerous there;
The applicant cannot relocate to India because there are big political fights and he has no one to live with; and
He has lived in Australia for so long that he is well settled here and needs to work to be able to earn money.

The applicant provided a statement from his brother supporting the claims that he had made and asking the Department to grant the visa. The applicant was interviewed by an officer from the Department on 12 September 2016.
The delegate who considered the application noted the following:

The applicant has an existing right to enter India under the Treaty of Peace and Friendship (no.1302) (India/Nepal 31 July 1950) (the Treaty);
There is nothing to indicate that the applicant has any criminal history which would lead to the Indian authorities returning the applicant to Nepal;
The applicant has failed to attempt to live in India if he had a fear of returning to Nepal;
There is nothing to indicate that the applicant would not be able to reside in India without any well-founded fear of persecution or a risk of suffering significant harm; and
There is nothing which would indicate that the applicant would be forced return to Nepal if he was residing in India.

On this basis, the delegate was not satisfied that the applicant had taken all possible steps to avail himself of the right to enter and reside in India and therefore did not meet the requirements of s.36(3) of the Act.

Information to the Tribunal

The applicant advised the Tribunal that he had married [Ms C] who was an Australian citizen. The marriage took place [in] May 2018. He said that [Ms C] had a [child], [who] was currently [age] years old, who he had adopted, although no evidence of any formal adoption was provided. He provided evidence that [Ms C] suffered a [medical condition] in June 2019.
The Tribunal wrote to the applicant on 5 February 2020 inviting him to attend a hearing before the Tribunal on 10 March 2020. On 3 March 2020 the applicant wrote to the Tribunal declining the invitation to attend the hearing due to his changes in his circumstances. In that letter he stated ‘All my claims that were applied during my protection visa is no more valid. I have no point to discuss in any of my claims’. (sic)
The Tribunal contacted the applicant and enquired whether he wished to withdraw his application. The applicant responded by stating that he wished a decision to be made on the information provided. The Tribunal wrote to the applicant on 11 March 2020 pursuant to s.424A of the Act referring to information it had access to. This included the following:

The information provided by the applicant in support of his application for Ministerial intervention made on 12 December 2013;
Interviews conducted by the Department with the applicant on 19 February 2014, 18 June 2014 and 30 July 2014;
The information provided by the applicant in support of his application for Ministerial intervention made on 10 March 2016; and
The movement records of Ms [A] and her resident status in Australia.

The applicant responded by way of letter dated 24 March 2020. In that letter he made the following claims:

He claimed that his relationship with Ms [A] ended in early 2012 and he had not talked with her since then but her family are still publicising negative comments about him and his family in Nepal;
He was not aware of any allegations that his relationship with Ms [A] was not genuine and the information is baseless;
He was in a genuine relationship with Ms [B] but as she was from a Muslim background his family was against his decision to marry her as was his community; and
His community are Hindu extremists and supporters of the monarchy.

The applicant stated as follows:
All my claims made during Protection visa followed by review (RRT) was valid until last year where I have emailed RRT about my change in circumstances with my marriage certificate with [Ms C] .Now, I am happily married to [Ms C]. Even her ex-husband has granted permission to change our [child] surname to mine.
As the applicant declined to attend a hearing before the Tribunal, the Tribunal has considered all the information before it including the information provided by the applicant to the Department and to the Tribunal. For the following reasons, the Tribunal does not accept the claims made by the applicant and affirms the decision of the Department to refuse him the Protection visa.

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 themselves 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

On the basis of the applicant’s identity documents, including his passport, the Tribunal accepts that the applicant is a national of Nepal. Therefore, for the purposes of s.36(2)(a) of the Act and the meaning of refugee in s.5H of the Act, the Tribunal accepts that Nepal is the country of nationality. For the purposes of s.36(2)(aa) of the Act, the Tribunal accepts that Nepal is the receiving country.
The Tribunal has considered all the claims of the applicant. The Tribunal does not accept that the applicant or any member of his family have been threatened by Ms [A] or any member of her family due to the applicant’s relationship with Ms [A] ending or for any reason. The Tribunal does not accept the applicant has been threatened by his family or any members of his community due to his marriage to Ms [B] as she was a Muslim or that he has been threatened by his family or any members of the community for any reason at all.
The applicant claimed that his relationship with Ms [A] ended in early 2012. They were divorced on the application of Ms [A] filed [in] April 2013. It was claimed that in late 2015 the applicant’s family called him and said that Ms [A] had socially publicised negative information against him and his family. It was claimed they threatened to kill the applicant if they found him and, despite his father reporting this to the police, the police said they could not take any action. It was claimed that Ms [A]’s family have made these threats because they believed the applicant had ruined Ms [A]’s life.
The applicant claims the first threats were made by Ms [A] in late 2015. This is more than three years after the applicant claimed he last had any contact with Ms [A] and more than two years after they were divorced. There is no explanation as to why, if Ms [A] blamed the applicant for the end of the relationship or ruining her life, the threats only commenced more than three years after the relationship ended.
Although the applicant claimed that Ms [A] was publicising negative information against the applicant, there is no evidence to indicate what that information was or how they were publicising it. Apart from claims made that his family had heard these negative comments, there is nothing to indicate that any direct threat or comments were made about the applicant by Ms [A] or her family. The applicant has provided no credible documentation about any threats being made against him by Ms [A] or her family. The applicant has provided no written documentation that any complaint has been made by his family to the police about any threats made against the applicant or them from Ms [A] or her family.
It is inherently unlikely that if Ms [A] or any member of her family were resentful towards the applicant for the end of his relationship with her that they would not have raised issues at the time of the separation, or not later than when Ms [A] applied for the divorce, before they decided to ‘publicise negative information against (the applicant) and his family’. The applicant had multiple contacts with the Department between the end of his relationship with Ms [A] in early 2012 until 2015. During these contacts, the applicant did not make any claim that he or his family had been threatened by Ms [A] or her family for any reason.
When he applied for Ministerial intervention on 12 December 2013 after his Student visa was refused, the applicant indicated that his relationship with Ms [A] went bad and they separated. He did not make any claim that any threat had been made against him or any of his family by Ms [A] or any member of her family. The only reason he said that he did not want to return to Nepal was that he was concerned if he returned to Nepal without any education his family and society ‘will make fun’ of him and he hoped to be able to make his family proud. He does not indicate that any threat had been made against him or his family for any reason. Particularly as this was the same year that Ms [A] divorced the applicant, it would be expected that if Ms [A] or her family had any resentment against the applicant for the end of their relationship or for any reason that it would be at this time that any threats would be made. That no claim was made at that time that Ms [A] or any member of her family had threatened the applicant indicates that Ms [A] and her family have no interest in the applicant or his family due to the end of his relationship with her or for any reason.
The applicant was interviewed on at least three occasions by the Department in respect of his Bridging visa. These interviews took place on 19 February 2014, 18 June 2014 and 30 July 2014. No claim was made at that time that the applicant had been threatened by Ms [A] or her family for any reason. Instead, the applicant indicated that he planned to return to Nepal because it would be cheaper for him to have an operation he required there instead of in Australia.
The Tribunal does not accept that if the applicant was subject to any threat from Ms [A] or her family that he would be indicating to the Department in 2014 that he intended to return there as it would be cheaper to have an operation he required in Nepal rather than in Australia. The fact that he was indicating that he was planning to return to Nepal indicates the claims he has made that he faces a real risk of significant harm or persecution in Nepal are inherently unlikely.
The circumstances of Ms [A] are that she is currently residing in Australia. This would appear to have been her aim when she first arrived in Australia on a Student visa. Rather than the end of the relationship between her and the applicant ruining her life, it would appear that Ms [A] has been able to continue her life and achieve the aims that she had when she first arrived in Australia. This would indicate that Ms [A] and her family would have no reason to be resentful against the applicant and his family for the end of the relationship.
The Tribunal has considered all the circumstances of the claim that if the applicant returns to Nepal he faces a real risk that he will suffer significant harm or persecution from Ms [A] or her family in Nepal. There is no documentation which would indicate that any threat or negative information has been publicised by Ms [A]’s family in Nepal. There is no credible documentation which would indicate that the applicant’s family have been threatened by Ms [A]’s family in Nepal or that they have made any complaint to the police or any other authorities about any claimed threat. It is inherently unlikely that if Ms [A] or her family thought the end of the relationship and divorce was the applicant’s fault or that he had ruined her life, that threats would only be made at the end of 2015, more than three years after the parties had separated and more than two years after Ms [A] had applied for and been granted a divorce from the applicant. The applicant had indicated a willingness to return to Nepal in 2014 so that he could have an operation there. He expressed no concerns about returning to Nepal.
When considering all these facts, the Tribunal finds that the applicant and his family have not been subject to any threats by Ms [A] or her family for any reason. The Tribunal finds that there has been no negative information publicised by Ms [A] or her family or any other person about the applicant in Nepal. The Tribunal is not satisfied that there is a real risk the applicant will suffer significant harm from Ms [A] or any member of her family or any member of the community arising as a result of the end of his relationship with Ms [A].
The applicant has also claimed that he faces threats from his family in Nepal due to his marrying Ms [B] [in] July 2014. The applicant claims that these threats are due to the fact that Ms [B] is a Muslim and his family and the community where he lives said they would boycott him and his father told him not to return to Nepal. The Tribunal does not accept these claims. The Tribunal does not accept that the applicant’s family or any member of his community in Nepal have criticised him for his marriage to Ms [B] or that the applicant faces a real risk that he would suffer significant harm as a result of his marriage to Ms [B] or that he has a well-founded fear of persecution as a person who married a Muslim if he returned to Nepal.

The applicant claimed that his family in Nepal were against his marriage to Ms [B]. In a letter from his brother the applicant provided to the Department, the applicant’s brother claimed that he had told the applicant not to marry Ms [B] because his family would not accept the marriage because of religious matters, however, the applicant did not listen to him and his family and still married Ms [B]. He claimed that as a result of his marriage to Ms [B] he is now threatened by his family and members of the community.
This information is inconsistent to the claims made by the applicant in his Partner visa application. He claimed that he first met Ms [B] in February 2014 and they had ‘been visiting their common relatives and everybody is showing respect to (their) love’. This does not indicate that any member of the applicant’s family had any concerns about the applicant’s claimed relationship with Ms [B] or that there was any issue about his marrying a Muslim.
When interviewed by the Department in respect of the granting of Bridging visas to the applicant after the applicant claimed he first met Ms [B] he did not indicate that his family had any issues about him marrying a Muslim or that they had threatened him in any way as a result of his relationship with Ms [B]. Contrary to this, the applicant stated that it was his intention to return to Nepal in order to have an operation [as] it was cheaper to have the operation in Nepal than in Australia. The Tribunal does not accept that if there was a real risk the applicant would suffer significant harm or persecution from his family or any members of the community in Nepal that he would be indicating to the Department in July 2014 that he intended to return to Nepal to have an operation. That he stated this to the Department makes his claim that his family or any member of the community poses a real risk of causing him significant harm or that he has a well-founded fear of persecution because of his claimed relationship with Ms [B] is inherently unlikely.
The applicant made the claim that he intended to return to Nepal on other occasions when interviewed by the Department. This included when interviewed on 18 June 2014, the month before his marriage to Ms [B] where he claimed that he would return to Nepal for the operation and that his family would assist him in purchasing his departure ticket from Australia.
During those interviews, the applicant set out the support that he was receiving from his family from overseas. He claimed that he had liabilities in Australia but was reported to say that his ‘brother and family overseas are supporting (him, with) either brother or father sends him $[amount] monthly’.
The Tribunal does not accept that the applicant’s family in Nepal would be providing financial support leading up to and after his marriage to Ms [B] if they had any concerns about the applicant marrying a Muslim. That he was claiming that he was being financially supported by his family immediately before and after his marriage to Ms [B] indicates that the claims he has been making are inherently unlikely.
In his claim that he was being threatened by Ms [A] and her family, he claimed that it was in late 2015 that his family in Nepal contacted him to warn him of her threats. It was claimed that they had gone to the police to report this threat. If the applicant was claiming that his family were going to boycott him and were a threat to him for his marriage to Ms [B], it is inherently unlikely that they would be contacting the applicant in late 2015 to warn him about threats made by Ms [A] and her family.
Even accepting the applicant’s claims at their best, the claims made by the applicant are that his family would ‘boycott’ him and that they were not happy with him. In the statement that he provided from his brother, his brother said that his family had informed him that the applicant ‘is no more the member of the family’. There is no indication that there is any threat to the applicant’s life or liberty, there is no threat of significant physical harassment or ill treatment, there is no significant economic hardship by being boycotted by his family or any members of the community, there is no denial of access to basic services or capacity to earn a livelihood. The Tribunal is not satisfied that any of the claimed behaviour from his family or his community if he returned to Nepal amounts to persecution or significant harm.
The applicant provided a newspaper [clipping]. This referred to a couple who were from different castes who had been required to leave their community. The article refers to police providing support for the couple and that they had been able to relocate to another area in Nepal. This indicates the applicant could relocate in Nepal and he would receive appropriate protection from the authorities there if his claims were true.
The applicant claimed that his relationship with Ms [B] ended in 2015. He claimed that he was now married to another woman who was a Nepalese Hindu. As the applicant has ended any relationship he had with Ms [B] who was a Muslim and is now in a relationship with a Hindu woman, there would appear to be no reason why the applicant’s family or any member of his community would have any reason to cause the applicant significant harm or to persecute him for any reason.
In the information that the applicant provided to the Tribunal on 3 March 2020, the applicant said that his claims that were made when he applied for the Protection visa are ‘no more valid’. It was for this reason he claimed that he did not wish to attend the hearing before the Tribunal. The applicant repeated this statement in his letter dated 24 March 2020 when he claimed that his claims were valid until last year when he married [Ms C]. This would indicate that even if the Tribunal did accept the claims of the applicant, which it does not, there is not, at the time of this decision or in the foreseeable future, a real risk that the applicant will suffer significant harm or that he has a well-founded fear of persecution if he returned to Nepal.

The right to enter and reside in India

The basis of the Department’s decision was that the applicant had a right to reside in India and as he had a statutory effective protection in a third country he did not meet the criteria for the grant of the visa. The basis of this decision was the special relationship Nepal has with India under the Treaty. The details of that treaty and the right of a Nepali citizen to live and reside in India are set out in the Department’s decision, a copy of which the applicant provided to the Tribunal.
The matters which must be considered by the Tribunal in determining whether third country protection is available to the applicant are:

whether the applicant, a citizen of Nepal, has a right to enter and reside in India;
whether he is at risk of Convention-related persecution or ‘significant harm’ in India;
whether the Indian authorities might return him to Nepal or another country where he is at risk of Convention-related persecution or ‘significant harm’; and
if he has a right to enter and reside in India, whether he has taken all possible steps to avail himself of that right.

Whether the applicant has a right to enter and reside in India

The Full Federal Court in considering the appeal from the Federal Magistrates Court in relation to the applicant (MIMAC v SZRHU [2013] FCAFC 91) held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
The starting point for consideration of whether the applicant has a right to enter and reside in India is the Treaty. Articles 6 and 7 of the Treaty are the most relevant for present purposes. These two Articles concern the treatment to be given to the nationals of one country in the territory of the other. Importantly, Article 7 grants to Nepalese nationals in India and Indian nationals in Nepal ‘the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature’.
The Treaty itself does not deal with the rights of Nepalese nationals to enter India (and vice versa) but rather concerns their treatment once in India. It is therefore necessary to turn to other sources to further examine the right of entry question.
Information provided by the Australian Department of Foreign Affairs and Trade (DFAT)[1] and contained on the website of India’s Bureau of Immigration is to the following relevant effect:
A citizen of Nepal entering India by land or air does not require a passport or visa for entry in India.
A citizen of Nepal while travelling by air between Nepal and India is required to show any of the following valid identity documents to establish his/her identity as a Nepalese citizen:
·Nepalese Passport.
·Nepalese Citizenship Certificate.
·Voter’s Identification Card issued by the Election Commission of Nepal.
·Limited Validity photo-identity certificate issued by Nepalese Missions in India when deemed necessary.
A citizen of Nepal must be in possession of a Passport when entering India from a place other than Nepal. A citizen of Nepal in possession of a valid Nepalese passport flying direct from Australia could gain entry to India.
[1] DFAT Country Information Report – Nepal dated 1 March 2019.
The Nepalese passport issued in 2015 in the name of the applicant provided as part of the current application process is valid until 2025. The Tribunal finds that the applicant has a currently valid Nepalese passport in his name.
The Tribunal notes that DFAT advises that unlimited stay is granted to Nepalese nationals in India and there are no restrictions on their ability to remain, reside or work in India. Other reports confirm that Nepalese citizens may reside, work, attend school and access health services in India. A BBC report from 2008 states: ‘Over five million Nepalese people work and own property in India’. A policy paper in 2011 estimated that some 10–12 million ‘Nepalis’ live in India. This latter figure includes both migrants from Nepal living in India and Nepali-speaking Indian citizens.
Country information indicates that there is a shifting population between the two countries and ‘free border movement between Nepal and India has led to transnational social networks, by which people sustain contacts between families in Nepal and migrants in India’. Various sources state that there are sizeable Nepalese communities particularly in India’s north-eastern states. Urban centres such as Delhi, Mumbai and Bangalore are also popular destinations for Nepalese migrants.
Taking into account the terms of the Treaty itself, the information from Indian and Australian authorities as to the administrative arrangements concerning entry to India by Nepalese nationals and the country information and other commentary on the ability of Nepalese citizens to enter and reside in India, the Tribunal is satisfied that the applicant has a right to enter and reside in India.
The applicant has provided no evidence of any attempt to enter and reside in India, successful or otherwise, either to avoid the problems he faces in Nepal, or for any other reason. The Tribunal is not satisfied that the applicant has taken all possible steps to avail himself of the right to enter and reside in India.

Risk of Refugees Convention-related persecution or of ‘significant harm’ in India

Subsection 36(3) of the Act will not apply if the applicant has a well-founded fear of Convention-related persecution in India or there are substantial grounds for believing that, as a necessary or foreseeable consequence of him availing himself of a right to enter and reside in India, there would be a real risk that he will suffer significant harm (s.36(4)).
In submissions made to the Department, the applicant stated as follows:
I know few of my relatives live in India near border of Nepal and India but as you know there have been dangerous strike ongoing from our Nepalese Madhesi Group and many people had died a few months back including high rank police officer too. Hence, it is completely risk for me to live in that areas as well.
The DFAT report on Nepal dated 1 March 2019 reports that the Madhesi are a group of people of Indian origin that live in the Terai (the lowland region in Nepal’s south) who have continuing strong socio-cultural and ethnic links across the border with India. Allegations of economic exploitation of the resource-rich Madhesi region have exacerbated feelings of discrimination by the Madhesi resulting in political activism and tension between the Madhesi and members of other ethnic minorities living in the Terai region. There have been few reports of any significant unrest outside this region and, in particular, in India outside border region with Nepal. There is nothing to indicate that if the applicant was living in India outside the immediate border region with Nepal that he would face any potential harm or threat from any Madhesi group for any reason. He does not have a profile which would attract the attention of any Madhesi group. The Tribunal does not accept that he would face any difficulties from any Madhesi group in India.
The applicant has stated that he speaks Nepalese, Hindi and English. The applicant has shown himself a resourceful individual in being able to live in Australia for an extended period of time. There is nothing to indicate that the applicant would not have the capacity to live and work in India.
The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm in India based on the fact of being an ordinary Nepalese citizen living in India. The Tribunal is not satisfied that there is a real chance the applicant would be discriminated against in India such as to lead to a real chance of him facing serious or significant harm. The Tribunal is not satisfied that any hurdles the applicant might face in finding food, shelter or work would be of a level such as to constitute serious or significant harm. The Tribunal is not satisfied that the applicant would be harassed by police to any extent that would constitute serious or significant harm.
The Tribunal is not satisfied that the political or security environment in India is so problematic that the applicant, as an ordinary Hindu resident in India, would face a real chance of serious or significant harm.
The Tribunal is not satisfied that the applicant faces a real chance of serious harm in India for a Convention reason or that he is at a real risk of significant harm in India. The Tribunal is not satisfied that the qualification in s.36(4) applies.

Whether the Indian authorities might return the applicant to Nepal or a third country

The Tribunal must also consider whether the applicant has a well-founded fear that India will return him to Nepal or another country where he will be persecuted for a Convention reason or there is a real risk he will suffer significant harm.
Advice obtained from DFAT states that Nepalese nationals already in India can be forcibly removed if convicted of a crime in either Nepal or India. The advice also states that, if a Nepalese national commits a crime in Nepal and travels to India, the Nepalese police can request the assistance of the local Indian police to arrest the person. The Nepalese police will then travel to India to escort the Nepalese national back to Nepal. There are also provisions which allow for the deportation of Nepalese nationals from India to Nepal after the completion of their sentence for a crime committed in India.
The advice from DFAT identifies criminal activity as the sole reason that the authorities in India would return a Nepalese national resident there to Nepal. There is no other independent information before the Tribunal to suggest that the Indian authorities could or would return a national to Nepal for any other reason.
Instances of Nepalese individuals being deported from India and the low risk of deportation is set out in the following analysis by DFAT dated 1 March 2019 at 5.33 and 5.34 in the Treaty and the rights of Nepalese in India:
DFAT is aware of only one confirmed instance of a Nepali in India being deported. In 2002 during the time of the Nepal civil war, Bam Dev Chhetri, a Nepali resident in India who was active in Abnes (an organisation advocating for the rights of Nepalis in India and who was alleged to have links with the Maoists), was deported (along with five others active in Abnes). The deportation occurred just prior to a visit to India by the then King of Nepal and followed shortly after a visit to India by the then Nepali Prime Minister during which India was requested to curb the activities of Abnes. A subsequent High Court of Delhi case found the deportation of Chhetri to be lawful. This decision has been criticised by Indian civil society on the grounds that it disregarded India’s obligations under the Treaty and for a failure to follow previous Indian court decisions which said that the Government did not have an unfettered right to deport people from India.
Deportations of Nepali citizens from India to Nepal are not impossible, but very uncommon. One incident occurred in 2010, when police in Pune issued a deportation order against the estranged wife of a Nepali politician. The Maharashtra Government suspended the deportation order. On the basis of these two cases, and given the significant numbers of Nepalis living in India who otherwise have not experienced deportation or the threat of deportation, DFAT assesses that there is an extremely low risk that any Nepali would be deported from India and that in the event that such an order was issued, the Nepali would have access to the Indian legal system on the same terms as Indian citizens do for judicial review of the decision.
Given the evidence, the Tribunal is not satisfied that there is a well-founded fear that the applicant will be returned to Nepal from India. Therefore the qualifications in s.36(5) and s.36(5A) do not apply.
In summary, the Tribunal considers that the applicant has a right to enter and reside in India. The Tribunal is not satisfied that the applicant is at risk of Convention-related persecution or significant harm in India. The Tribunal is not satisfied that the applicant would be returned to Nepal from India. The Tribunal is not satisfied that the applicant has taken all possible steps to avail himself of his right to enter and reside in India. That being the case, in the event the applicant were owed protection in respect of harm in Nepal, Australia does not owe the applicant protection obligations as a result of s.36(3) and the fact that none of the qualifications to that provision are met.

Overall assessment

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.

Hugh Sanderson
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.
…

5H Meaning of refugee

For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.

…

5J Meaning of well-founded fear of persecution

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.
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.
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 the 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.
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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(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.
…

[2020] AATA 2223

6 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction