1621284 (Refugee)

[2021] AATA 515

1621284 (Refugee) [2021] AATA 515 (25 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621284

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Hugh Sanderson

DATE:25 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 January 2021 at 7:48am

CATCHWORDS

REFUGEE – Protection visa – Nepal – political opinions –member of Nepal Communist Party UML – no evidence to support this claim – alleged persecution from Maoists – provided false or misleading information to the Department – applicant has a right to enter and reside in India –claims not consistent with the country information – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 424AAA,438, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Nepal, applied for the visa on 19 May 2016. The delegate refused to grant the visa on the basis that the applicant had the right to enter and reside in India where the applicant did not have a well-founded fear of persecution or there was a real risk that he would suffer significant harm.

   Background

3. The applicant was born in Nepal and is currently [age] years old. His parents and a brother continue to live in Nepal. He is married with three [children]. He was granted a [Visitor] visa and entered Australia [in] March 2016.

4. In his application, the applicant made the following statement:

   I am a [Occupation 1] by profession and I am a member of the Nepal Communist Party UML. I actively involved in criticizing the Maoists for their unlawful activities. I was accused of spying on the Maoists. Police arrested three cadres of the Maoists after I had informed the police. They were released from the police detention after few days. The Maoists threatened they would kill me so I reported it to the district police again but they did nothing and ignored me for my safety regardless of my request. I received threats of being killed by the Maoist elements. Having been realized my inability to either protect myself, or obtained protection from the police and the authorities, I was forced to make a decision to flee Nepal to avoid being killed by the Maoists. I got threats from the Maoists who persisted in their threats which forced me to leave my country. In conclusion, I came to Australia for my safety reasons. I will provide a detailed statement soon.

5. The applicant claimed that he would be tortured and killed if returned to Nepal because of his political opinions. He claimed that the police would not provide him assistance and there was no safe place for him in Nepal as the Maoists have a nationwide network. Despite claiming that he would provide further documents in support of the application, no further documentation was provided by the applicant.

6. The applicant was invited by the Department to attend an interview scheduled for 2 December 2016. The applicant failed to attend the interview.

7. The delegate who considered the application noted the following:

   ·The applicant is a citizen of Nepal and has a right to enter and reside in India pursuant to the Treaty of Peace and Friendship;

   ·The only evidence the applicant would need to enter India would be his Nepalese passport, a copy of which he provided to the Department; and

   ·There is nothing to indicate that the applicant has a well-founded fear of persecution in India or that there would be a real risk he would suffer significant harm in India.

8. Without assessing the applicant’s claims of why he could not return to Nepal, the delegate found that, as he had the right to enter and reside in India, the applicant had not taken all possible steps to avail himself to that right. Accordingly, the delegate found that as he had effective protection in a third country he did not meet the criteria for the grant of the visa pursuant to s.36(3) of the Act.

   Information to the Tribunal

9. The applicant was granted a variation of his Bridging visa to allow him to travel overseas. The Department’s records show that the basis of the grant of the visa was because the applicant stated he wished to visit his wife in a third country, [Country 1]. On the basis of that claim, the delegated officer was satisfied the applicant had a genuine need, or a substantial reason to travel.

10. The applicant provided a statement to the Tribunal where he repeated the claims he made in his original application.

11. The applicant appeared before the Tribunal on 18 January 2021 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

12. The applicant was initially invited to the hearing on 18 February 2020. In that hearing invitation, the Tribunal noted the Department had issued a certificate pursuant to s.438 of the Act. The applicant was invited to comment on the validity of this certificate. The hearing set down in that hearing invitation was vacated due to the COVID-19 shutdown. The applicant was invited to a further hearing to be conducted by MS Teams video, however, he indicated that he was not willing to participate in a video hearing. He was subsequently invited to attend a hearing in person which was, after one postponement at the request of the applicant, held on 18 February 2020.

13. In respect of the information subject to the s.438 certificate, the Tribunal found that the certificate was invalid. The information covered by the certificate was the certificate itself and information relating to the granting of the applicant’s Visitor visa application to enter Australia which was irrelevant to the current application.

14. The applicant said that his wife and children were living with his parents in his hometown of [District 1]. He said that his wife was working as an assistant in a [workplace] and his father was working as a [Occupation 1], but was retiring soon. When asked if any of his family members had any problems in Nepal, he said not really, but due to past incidents they live in fear. He said that the Maoists are still asking his family about him and his wife tells them that he is in Australia because she cannot lie.

15. The applicant said that he was an ordinary member of the Communist Party of Nepal (CPN) (Unified Marxist-Leninist) (UML). He said that he did not have a membership card as it is in Nepal. He said that he had been a member since 2007. When asked to provide details of what he did as a member of the CPN (UML) the applicant provided a vague response. He said that because he was a [Occupation 1] he advised the party and participated in programs. He said that he would participate in strikes which would occur on two or three occasions each year. He said that he would participate in big programs, but could not provide details of what that meant. He said that he went to monthly meetings at the party office in [District 1]. He said that he was just an ordinary member and not a leader. He said that there were about [number] ordinary members in the [District 1] region. He said that most of them suffered persecution like him, but they just tolerated it.

16. The applicant said that the Maoists employed cadres where they organised big attacks. He said there were about 200 or 300 cadres in the local region.

17. The applicant said the threats started being made against him in 2007. He said that as a result, he paid 25% of his income to the Maoists. He said that because he was just an ordinary member he could not get security and it is only the people at the high level of the CPN (UML) who got security. He said that the Maoists took 25% of everybody’s income because they intimidated the people. The Tribunal attempted to find out where the Maoists who were intimidating the people were working. The applicant said that he did not know where they worked and they were just in the underground and following the direction of the party. He did not know if any Maoists worked in the police.

18. The applicant said that he first complained to the police in 2016. The Tribunal noted that the applicant had stated that he had been paying 25% of his income since 2007 and it would seem inherently unlikely that he would wait until 2016 to complain to the police. The applicant said that he started paying in 2007 but after two or four years he stopped and then the Maoists intimidated him. He said that when he complained to the police the police said that as he had no evidence they could do nothing for him. He said that he first complained to the police in 2012. The Tribunal noted this was inconsistent with what he had just said. The applicant said that when he made the complaint to the police they told him he did not have any evidence and so it was worthless to complain to the police.

19. The Tribunal asked how the Maoists intimidated him. The applicant claimed that in 2010 he was [working] in a [workplace] and he was kidnapped and taken to a quiet place. He said the Maoists told him his life was at risk and unless he quit his membership of the CPN (UML) and provided money to them they would shoot him and they would do things to his family. He said that while he was paying the money he had no problems and he knew the police would not trust him. He said that he had to make things highly confidential because if he complained the Maoists would do something.

20. The Tribunal asked if there was any other intimidation. The applicant said that he would encounter Maoists and they would be rude to him and would not talk to him politely. He said that they told him if he mentioned it to anyone they would hurt him so he never complained about it.

21. The Tribunal noted the country information indicated that the security situation throughout Nepal had dramatically improved since the end of the conflict in 2006. Further that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations. The applicant said that everything he had said was true. He said that when the CPN (UML) and Maoists combined in 2018 there were still groups of Maoists who were threatening people. The applicant acknowledged that the CPN (UML) and Maoists had combined in 2018 to form one party, but claimed that there were still Maoist groups that were a threat to him.

22. The Tribunal asked the applicant why he would not be able to relocate to Kathmandu. He said that it was very expensive to live in Kathmandu and hard to get a job. He said that the Maoists who had left the main group would still be able to find him and he did not believe he would be able to get protection.

23. The Tribunal asked the applicant why he would not be able to relocate to India. The applicant said there was an agreement between Nepal and India and he could travel to India but it would not help because the Maoists could find him. The Tribunal noted that the applicant did not have a profile which would be of any interest to any political organisation and in particular any splinter Maoist party. The applicant said that because he is not high up in the party he cannot afford security which was why he would be targeted.

24. The applicant said that he travelled to [Country 1] with an [Country 1] friend for a holiday in 2019. He said that he did not see his wife at the time and she remained living in Nepal. The Tribunal referred to the process in s.424AA of the Act. It stated that it would be putting information to the applicant which would be the reason, or a part of the reason, for affirming the decision under review. It would explain what this information was, why it was relevant and then invite the applicant to comment on or respond to the information. If he required more time, he could request an adjournment.

25. The Tribunal referred to the Departmental records which showed the applicant had applied for a variation of his Bridging visa on the basis that he wished to visit his wife. This was relevant as it was inconsistent to the information the applicant was now providing to the Tribunal as to his travel to [Country 1] and indicated his willingness to provide false information to the Department to obtain an immigration outcome. This undermined the credibility of the applicant and all the information he had been providing to the Department and to the Tribunal in respect of his Protection visa application. The applicant responded by saying that he did not know how he made the mistake. He claimed everything he had said was true.

    CRITERIA FOR A PROTECTION VISA

26. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. 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.

27. 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.

28. 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).

29. 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.

30. 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

31. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

32. On the basis of the applicant’s identity documents, including his passport and evidence provided at the hearing before the Tribunal, 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.

    Country information

33. Country information in respect of Nepal indicates that the overall security situation throughout Nepal has dramatically improved since the end of the conflict in 2006 and the establishment of a republic in 2008.[1] Although there are numerous governance challenges, the overall political situation in Nepal is relatively stable without any likely return to the situation the country was in before 2006.

    [1] DFAT – Country Information Report Nepal, 1 March 2019 at 2.41.

34. DFAT reports that “A diverse and competitive array of political parties operate in Nepal, though the system has faced considerable instability in recent years”.[2] The current report from DFAT and the earlier 2016 report at the time the applicant departed Nepal noted that “Nepal has enjoyed several years of political stability. A lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active is generally respected”.[3]

    [2] DFAT – Country Information Report Nepal, 1 March 2019 at 3.40, see also DFAT – Country Information Report Nepal, 24 April 2016 at 3.28.

    [3] DFAT – Country Information Report Nepal, 1 March 2019 at 3.41 and DFAT – Country Information Report Nepal, 24 April 2016 at 3.29.

35. The applicant claimed to be a member of the CPN (UML). This party and the Communist Party Nepal (Maoist Centre) were the two main left-wing political parties in Nepal. With specific reference to Maoists, DFAT assessed “that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants”.[4]

    [4] DFAT – Country Information Report Nepal, 1 March 2019 at 3.45.

36. The most significant recent governance change in Nepal was the merging of the CPN (UML) and the Communist Party Nepal (Maoist Centre) into the Nepal Communist Party which dominated the national elections in 2018. The former head of the CPN (UML) Khadga Prasad Sharma Oli was elected as the party’s parliamentary leader in the House of Representatives and appointed prime minister.

37. The consolidation of the two left-wing parties was seen as a positive step that may contribute to consensus building in the future. There has been infighting within the amalgamated party as to the power-sharing arrangements, but these have not led to any significant fall out between the members of the former parties.[5]

    [5] Department of Home Affairs – Country of Origin Information Services Section – Common Claims Nepal 29 September 2020 at page 9.

38. The current overall security in Nepal is fairly stable. Certainly, there is some disharmony between former Maoists and members of the CPN (UML) in adapting the newly merged party with tensions as to leadership. The actions by Prime Minister Oli to dissolve parliament were opposed by the Nepalese Congress Party. The South Asia Terrorism Portal described 2020 as a story of instability, however, “the political volatility did not have an adverse impact on the overall security situation in the country”.[6] Most notably, this report found that the violence was primarily linked to the Biblab-led Communist Party of Nepal – Maoist (CP – Maoist – Chand) which had previously split from the main Maoist party. The government has taken steps against this organisation and have succeeded in substantially countering the threat from this group, arresting a number of its leaders in 2020 and restricting their activities.[7]

    Assessment of the applicant’s claims

    [6] Nepal: Assessment 2021 - Analysis - Eurasia Review dated 11 January 2021 and accessed 18 January 2021.

    [7] Nepal: Assessment 2021 - Analysis - Eurasia Review dated 11 January 2021 and accessed 18 January 2021.

1. The claims made by the applicant that he was threatened by Maoists and forced to pay 25% of his income to them from 2007 until he left Nepal in 2016 are not consistent with the country information. The claim that he continues to face threats from Maoists is also not consistent with the country information set out above.

2. Although claiming to have been a member of the CPN (UML), the applicant has provided no evidence to support this claim. He has not provided a membership card, details of any meetings he attended, pamphlets from the party that he accumulated while in Nepal, correspondence addressed to him from the party or any other information which would indicate that he was ever a member or associated with the CPN (UML).

3. When the applicant applied for the protection visa in May 2016 the only document he provided in support of the application was his Nepalese passport. He claimed that he would provide relevant documents and information to the Department, however never did. At the time the Department had made their decision, the applicant had provided no documentation or information to substantiate any of his claims. When the Tribunal invited the applicant to the original hearing before it in February 2020, the applicant was again requested to provide any further information in support of his application. At the time of this decision, the applicant provided no information or documentation to substantiate his claims apart from a further statement repeating his claims. The fact that the applicant has provided no documentation or independent information substantiating his claims undermines the claims that he has ever been a member of the CPN (UML) or that he was ever threatened by Maoists or any other group for any reason or that he was made to pay any of his income to the Maoists or any other group.

4. When questioned about his activities with the CPN (UML), the applicant provided vague responses. He stated that he would apply their programs, but gave no details of what these programs were or in what way he was involved. He said that he would strike at work as a [Occupation 1], but did not give any details as to why these strikes were called. He claimed to have attended meetings in his home village, but did not provide any details of these meetings or what was discussed in them. The applicant described himself as an “ordinary member” of the party. He did not claim to have any leadership role or involved in the organisation in any administrative capacity. He said that as a [Occupation 1], he was involved with the party as a [Occupation 1] and nothing more.

5. Even as just an “ordinary member” the Tribunal does not accept that if the applicant was a member of the CPN (UML) from 2007 until 2016 when he travelled to Australia and he would not have a greater depth of knowledge of the policies of the CPN (UML) and would not be able to better describe the activities he was involved with in the party.

6. The claims made by the applicant as to the alleged persecution from Maoists in his application and in the statement he provided to the Tribunal are again vague and unspecified. He describes being “intimidated and exploited in a clandestine manner”. He claims that he was actively involved in criticising the Maoists, but does not provide details of how he did this. The evidence he provided does not indicate that he was involved in any public speeches or any other activities where he was criticising the Maoists or any other political organisation.

7. The applicant claimed that he made a complaint to the police, and as a result three cadres of the Maoists were arrested. He provided no other details, simply saying they were released after a few days. He did not provide details as to why they were released or any other information as to why they were arrested in the first place. He does not provide details as to when this happened.

8. Before the Tribunal, he claimed that it was in 2007, when he first joined the CPN (UML), that the Maoists started demanding 25% of his income. He claims that other people in the CPN (UML) were also required to pay that money to the Maoists, but provides no evidence to support this. That claim is inconsistent with the country information. If it were the case that the Maoists were demanding 25% of the income of every member of the CPN (UML) it is inherently unlikely that some unified action would not be taken by the party through the authorities against the Maoists. There is nothing to indicate that this occurred.

9. The applicant gave inconsistent information to the Tribunal. The applicant claimed that it was only in 2016 that he made his first complaint to the police. He then claimed he made his first complaint in 2012. He claimed at that time that the police told him they could do nothing as he had no evidence. The Tribunal does not accept that if the applicant had made a complaint in 2012 about the actions of Maoists or any other group demanding money from him that he would not have been able to obtain evidence at that time to support his claims. The Tribunal does not accept that if the Maoists or any other group were demanding money from him in 2007 and continued to do so that he would not have taken action with the authorities earlier than 2012 or 2016 when he claims that he made complaints to the police.

10. When asked to provide details of how the Maoists intimidated him, the applicant claimed that in 2010 he was kidnapped and threatened. The applicant had not previously made that claim in the statement he provided to the Department or to the Tribunal. If the applicant had been kidnapped in 2010 this would obviously be a significant factor in his claim that he faced persecution or a real risk of harm from Maoists if he returned to Nepal. That the applicant did not make this claim until the hearing before the Tribunal undermines the credibility of the applicant’s claims.

11. The applicant claimed when he was kidnapped the Maoists demanded that he resign from the CPN (UML) and pay them 25% of his income. They said unless he did this they would kill him and do things to his family. The applicant clams he continued to be a member of the CPN (UML) despite the alleged threats. Despite this, there is no information that the Maoists or any other political organisation or group did anything to the applicant or his family in Nepal apart from the applicant claiming the Maoists he met were rude to him. The applicant did not complain to the police at that time or take any other action to report the alleged kidnapping and threats made against him and his family. Again, if this event did occur, it is inherently unlikely that an active member of the CPN (UML) would not complain either to the party’s organisers or to the authorities of this alleged kidnapping and threats against the applicant and his family.

12. Apart from this one alleged kidnapping in 2010, the applicant did not indicate that there was any other event in which the Maoists or any other group’s behaviour could be considered threatening to such an extent that he would continue to be paying 25% of his income to them. He described the Maoists as being “rude to him” and not talking to him politely. He claimed that they told him they would report him if he said anything about it and so he did not report it to anyone. Again, it is inherently unlikely that if the applicant is an active member of the CPN (UML) would not report the activities of Maoists to other party members if this did actually take place. That the applicant states that he did not report to anyone the alleged threats made against him is inherently unlikely, it indicates that no such threats were made.

13. The applicant’s wife and children remain living in Nepal. His parents remain living in Nepal. He indicated that they did not have any problems with the Maoists or any other group or organisation, although claimed that the Maoists are still asking his wife where the applicant is so that they can get money from him. He claims the threats are continuing to be made to the current day. The applicant provided no evidence to support this claim.

14. As indicated above, the CPN (UML) and the Communist Party Nepal (Maoist Centre) united into a single party in 2018. The applicant acknowledged this fact. It is inherently unlikely that if the applicant had been previously threatened by Maoists that they would be continuing to threaten him for any reason or demand money from him after the two parties amalgamated. That the applicant is claiming his wife is continuing to receive threats from Maoists in the same terms that he was being threatened from 2007 to 2016 is inherently unlikely.

15. The applicant claimed that the Maoists who are now threatening his wife and who would threaten him if he returned to Nepal are not the same Maoists who were threatening him previously. He claims that these are splinter groups of Maoists who are not aligned to the Communist Party Nepal (Maoist Centre) which has since amalgamated with the CPN (UML). The Tribunal does not accept the applicant or any member of his family is being threatened by any group or individual. As indicated above in country information, there are various Maoists organisations in Nepal, however, the main Maoist group amalgamated with the CPN (UML) and the “splinter groups” are small and have little or no influence in Nepalese politics or authority in the country.

16. The applicant described himself as an “ordinary member” of the CPN (UML). He said that he was not a leader. Although the Tribunal does not accept the applicant was ever a member of the CPN (UML), accepting the claims of the applicant, the applicant does not have a profile as a political activist that suggests he would be of any interest to any Maoist group or any other pollical group. The applicant claimed that he would be targeted by the Maoists as the leaders of his party would be provided security, while he, as an ordinary member, would be an easier target and therefore faced a real threat. The Tribunal does not accept this. The Tribunal finds the applicant is not and was not involved in any political activity that the Maoists or any other political organisation would have any concerns about. He would not appear to be a threat to any organisation and, as the country information above states, political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants. The Tribunal finds the threat would be the same from any other political party or organisation. The applicant, even accepting his claims, does not have the profile that would make him of interest to any political party or group in Nepal.

17. The Tribunal has considered all the claims made by the applicant. The Tribunal does not accept that the applicant was ever a member of the CPN (UML) or that he was threatened by Maoists or any other group or organisation in Nepal as a result of his membership to that party. The Tribunal does not accept that the applicant was required to pay 25% of his salary or any money unlawfully demanded from him to the Maoists or any other group or organisation from 2007 to 2016 or at any time. The Tribunal does not accept that the applicant was kidnapped by Maoists or any other group at any time or that the applicant made any complaints to the police about Maoists or any other group for any reason.

18. The Tribunal does not accept that the applicant is of any interest to the Maoists or to any other group or organisation in Nepal at this time. The Tribunal does not accept that the applicant’s wife or any other person associated with the applicant has received any continuing threats from Maoists or any other group or organisation wanting to know the whereabouts of the applicant or making any demands from him.

19. It is noted that the applicant was granted a variation of his Bridging visa to enable him to travel overseas. In that application, he claimed he wanted to travel to [Country 1] to be able to spend time with his wife. On that basis, the delegate who considered that application in 2019 believed that the applicant had a genuine need, or a substantial reason to travel. In actual fact, the applicant travelled to [Country 1] with a friend for a holiday. He did not meet his wife. When this was put to him, the applicant simply said that he did not know how he made the mistake. The Tribunal does not accept this. The fact that the applicant applied for a Bridging visa to have a holiday with a friend in [Country 1] while claiming that he was to meet his wife indicates that he is willing to provide false or misleading information to the Department to support an immigration outcome he desires. This undermines the applicant’s credibility and all the claims that he has made to the Department in respect of any visa. This includes the application for the Protection visa.

20. Considering all the claims made by the applicant and the above findings, the Tribunal is not satisfied the applicant has a well-founded fear of persecution in Nepal. The Tribunal is not satisfied that the applicant would face persecution for his political opinion or for any other reason. Further, the Tribunal is not satisfied that is a necessary and foreseeable consequence of the applicant being removed from Australia and returning to Nepal there is a real risk that he would suffer significant harm.

21. 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).

22. 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).

    Relocation

23. As set out above, the Tribunal does not accept the claims made by the applicant and does not accept that the applicant would face any persecution for any reason in Nepal or that there is a real risk he will suffer significant harm in Nepal. The Department’s decision was based on a finding that the applicant could relocate to India.

24. The criteria for a protection visa in ss.36(2)(a) and (aa) of the Act require that the non-citizen is a person ‘in respect of whom Australia has protection obligations’, either because they are a refugee or on complementary protection grounds. Sections 36(2)(a) and (aa) are qualified by subsections (3) to (5A) which set out circumstances in which Australia is taken not to have protection obligations. These provisions call for consideration of whether an applicant has access to protection in any country apart from Australia. The qualification in s.36(3) provides that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification which operate, broadly, where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.

25. Even if the claims of the applicant were accepted and he faced persecution or a real risk of significant harm in Nepal, Australia does not owe protection obligations to the applicant if he has not taken all possible steps to avail himself of a right to enter and reside in India within the meaning of s.36(3) of the Act. There is no suggestion that the applicant has a right to enter and reside in a third country other than India.

26. 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 (s.36(3));

    ·whether he is at risk of Convention-related persecution or ‘significant harm’ in India (s.36(4));

    ·whether the Indian authorities might return him to Nepal or another country where he is at risk of Convention-related persecution or ‘significant harm’ (s.36(5) and s.36(5A)); 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.

27. 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.

28. The starting point for consideration of whether the applicant has a right to enter and reside in India is the Treaty of Peace and Friendship between India and Nepal 1950 (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’.

29. 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.

30. Information provided by DFAT 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.

31. The Nepalese passport issued in 2011 in the name of the applicant provided as part of the current application process is valid until [2021]. The Tribunal finds that the applicant has a currently valid Nepalese passport in his name.

32. 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.[8] 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.

    [8] DFAT – Country Information Report Nepal, 1 March 2019 at 5.20 to 5.35.

33. There is country information 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.

1. The applicant has acknowledged that the Treaty of Peace and Friendship between India and Nepal would allow the applicant to enter, live, work and reside in India if he should choose to do so. In his written statement, he claimed that he would face mistreatment by way of economic exploitation and police harassment on the basis of his nationality. This is not consistent with reports from DFAT which indicate that a large number of the parties live and work in India, with a substantial population of Nepalese living in New Delhi.[9] The applicant has provided his Nepalese passport which allows him to enter and live in India and obtain any necessary identity documents in India.

   [9] DFAT – Country Information Report Nepal, 1 March 2019 at 5.25.

2. 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.

3. The applicant has provided no evidence of any attempt to enter and reside in India, successful or otherwise, either to avoid the alleged 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.

4. 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)).

5. At the hearing, the applicant claimed that even though the Communist Party Nepal (Maoist Centre) amalgamated with the CPN (UML) in 2018, he would still face a continuing threat from the splinter Maoists that operate in Nepal. He claimed that they would still search for him and find him in India and would likely kill him. The Tribunal does not accept this.

6. As indicated above, there are a limited number of people who have continued a separate Maoist party after the unification of the two major left-wing parties in 2018. These “remaining Maoists” have little or no authority or power in Nepal and action has been taken against any violent activity that they have participated in. The Tribunal is not satisfied that the continuing Maoists in Nepal would have capacity to identify or locate the applicant if he returned to Nepal and have absolutely no capacity to do so if he relocated to India.

7. The applicant claimed that the continuing Maoists would target him even though he was an ordinary member of the CPN (UML) and did not have a profile where he would be of any interest to any other political organisation. The applicant claimed that people who did have a profile could not be targeted by violent organisations because they had security to protect them. As an ordinary member he was not provided with any security and therefore would be targeted by those violent organisations. The Tribunal does not accept this. It is inherently unlikely that any violent organisation would simply target ordinary members, particularly members of a party that is no longer in existence and where that person has not been active in any activities for many years, if ever.

8. 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 targeted by Maoists or any splinter Maoist group either from India or Nepal or would be harassed by any group or individual to any extent that would constitute serious or significant harm.

9. The Tribunal is not satisfied that the political or security environment in India is so problematic that the applicant, as an ordinary resident in India, would face a real chance of serious or significant harm. The Tribunal does not accept that individuals in Nepal involved in any Maoist or other political group or organisation would seek to track the applicant down in order to harm him. The Tribunal considers that this is an inherently unlikely proposition bordering on fanciful.

10. 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.

11. 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.

12. 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.

13. 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.

14. Instances of Nepalese individuals being deported from India and the low risk of deportation is set out in the following analysis by DFAT dated 22 December 2016 on the Treaty of Peace and Friendship and the rights of Nepalese in India:

    DEPORTATION OF NEPALIS BY 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.

    The only other instance of possible deportation of which DFAT is aware of 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.[10]

    [10] DFAT Thematic Report – India Nepal Treaty of Peace and Friendship: Rights of Nepalis in India, 22 December 2016, see also DFAT – Country Information Report Nepal, 1 March 2019 at 5.33 and 5.34.

15. There is no information that would indicate the applicant has been involved in any criminal activity in Nepal, Australia or in any other country. There is no information that would indicate the Nepalese authorities would seek to have the applicant extradited from India for any reason. 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.

16. The Tribunal finds 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.

17. The Tribunal finds that the applicant could relocate to India, living in such areas as New Delhi or other major metropolitan areas in the north of India. The Tribunal finds that the applicant would not face any persecution in India and there would be no real risk that he would suffer significant harm in India.

18. In respect of whether the applicant could relocate to India, the Tribunal finds 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.

19. 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).

20. 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).

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

    DECISION

22. 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

    (1)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

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:   For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:   For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in 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.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:   Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L     Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)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.

    …