1701230 (Refugee)

[2018] AATA 708

1701230 (Refugee) [2018] AATA 708 (26 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1701230

COUNTRY OF REFERENCE:                  India

MEMBER:Michael Hawkins

DATE:26 February 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 26 February 2018 at 5:18pm

CATCHWORDS
Refugee – Protection visa – India – Federal Circuit Court Remit – Religion – Sikh – Ethnicity – Indian – Social group – Person wrongfully accused of a criminal offence – Mentally ill –– Fear of discrimination

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K-LA, 36, 65, 91WB, 425, 499
Migration Regulations 1994, r 1.12, Schedule 2

CASES
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo (1997) 191 CLR 559
MIMAC vSZRHU [2013] FCAFC 91
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants who claim to be citizens of India applied for the visas [in] March 2013 and the delegate refused to grant the visas [in] November 2013.

3. The applicants sought a review of the delegate’s decision before the Tribunal. They appeared before the Refugee Review Tribunal (RRT) on 28 April 2014 to give evidence and present arguments. The RRT ultimately affirmed the decision of the delegate not to grant visas.

4. The applicants appealed the RRT’s decision to the Federal Circuit Court of Australia. They appeared before His Honour Judge [name] on [in] November 2016. He delivered his judgement [in] December 2016 quashing the decision of the RRT and remitting the matter for reconsideration to this Tribunal.

5. The applicants appeared before the Tribunal on 13 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

   RELEVANT LAW

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

14. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

16. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

17. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

19. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Relocation

20. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    State protection

21. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

    Mandatory considerations

22. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Member of the same family unit

23. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a wife and child of the applicant.

    CLAIMS AND EVIDENCE

24. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background:

25. The applicant is [an age] year old man from the town of Amritsar, province of Punjab, India.

26. The applicant is of the Sikh faith, is of Indian ethnicity and speaks Hindi, and Punjabi.

27. The applicant is married.

28. The second-named applicant is [age] year old woman from the town of Amritsar, province of Punjab, India.

29. The second-named applicant is of the Sikh faith, is of Indian ethnicity and speaks English.

30. The second-named applicant is married to the applicant.

31. The applicant and second-named applicant were married [in] January 2008.

32. The third-named applicant is [an age] year old child, born in [Australia], of the first and second-named applicants.

33. The applicant’s current employment status is unemployed. He has previously worked in various [workplaces] since being in Australia.

34. The second-named applicant was granted a [temporary] visa [in] May 2009 which was valid until [August] 2011.

35. The applicant and second-named applicant arrived in Australia [in] June 2009 under passports respectively numbered [number], issued [in] 2006 and expiring [in] 2016 and [passport number] issued [in] 2005 and expiring [in] 2015.

36. The second-named applicant applied for a further [temporary] visa (onshore) which was granted [in] November 2011 which was valid until [March] 2013.

37. The applicant was arrested and detained [in] February 2012 accused of [Criminal offence 1].

38. The applicant was released from custody [in] November 2012 as the [Criminal offence 1] charge was struck.

39. The applicant applied for a protection visa [in] March 2013.

40. The applicant attended an interview with the delegate. The delegate refused to grant the visas [in] November 2013.

41. The applicants appeared before the Tribunal on 28 April 2014 to give evidence and present arguments. That Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicants were represented in relation to the review by their registered migration agent. That Tribunal affirmed the delegate’s decision not to grant the applicants protection visas.

42. The applicant appealed to the Federal Circuit Court. [In] December 2016, the Court quashed the decision of the former Refugee Review Tribunal and remitted the matter to this Tribunal.

    Claims:

43. The applicant’s claims were set out in a statutory declaration attached to the protection visa application as follows:

    RELIGIOUS BACKGROUND

    1. I was born [in year] in Punjab, India. I am a citizen of India.

    2. I belong to Sikh religion.

    3. Members of Sikh religion respect the elder and women. We believe in purity of body, mind and soul.

    4. Those who commit or are accused of committing shameful crime, or behave immorally will lose reputation and respect in the community, and they will be condemned and completely isolated by the society.

    IMPACT OF FALSELY ACCUSATION

    5. Because of my bad reputation caused by the wrongful accusation in 2012, my parents felt shameful in regards to my criminal charge. Everyone in my community insulted me in front of my parents.

    6. My father [was] a politician with good reputation. He was head of our [village], a director of [a business] in Amritsar, [an official] of sports club, and [an official] of [a political party] in Punjab. Unfortunately, he died in a [in] 2012 without seeing I scour away the shame.

    7. My brother's fiance refuses to marry him due to my immoral reputation, and, therefore, my brother is against my return to India.

    8. My sister is also suffering from her colleagues' humiliation. It is hard for her to find a husband only because of my criminal history.

    9. A formidable prospect lies ahead of my son as well. In India, he will be unable to go to school, play outdoors or purchase anything.

    10. As a result, it is highly possible that my son will become illiterate and unemployed. By bearing the humiliation and pressure from the society, my son will eventually be estranged from me with disrespect.

    HARDSHIPS IN INDIA

    11. I am suffering from disgrace and shame every day which I do not deserve. Should I return to India the significant adverse impact on me and my close relatives will drive me to commit suicide.

    12. According to the culture and religions in my country, no one keeps in contact with me.

    13. The villagers will not allow me to stay with them. They will also refuse to sell food to me in the market. Sometimes they may even act aggressively in the name of religion.

    14. In other parts of my country, people also insulted me because of my criminal record. They verbally abused me on the phone by calling me `bloody [criminal]' or `son of bloody [criminal]'.

    15. The public in India are inclined to execute people who have been charged with [Criminal offence 1]. The authorities do not provide protection to us. Instead, the Indian Government can arrest me at any time as long as I have criminal history.

    16. Financially, I cannot survive in India in that I have sold all of my personal properties
    and house there to give my surety. But the guarantor absconded with my proceeds.

    17. With the pressure from the society, apparently, there will be no opportunity for me to obtain any job for living.

    18. I have lost everything, including my reputation and money, for being falsely accused of a crime that I did not committed.

    19. Due to the wrongful charge, I can no longer see my future back in India. Hence, I need protection and help from Australian authorities to clear my name and start my new life here.

44. The decision record contains the following summary of the applicant’s claims:

    A summary of the applicant's claims is outlined below;

    ·He belongs to the Sikh religion.

    ·He was wrongfully accused of [Criminal Offence 1] in February 2012 in [Australia].

    ·He was charged and imprisoned between [date]/02/2012 and [date]/11/2012 when the charges were struck. He was not released on bail over this time.

    ·People in India who commit or are accused of committing a shameful crime or behaving immorally will lose reputation and respect in the Indian community. They will be condemned and completely isolated by the society.

    ·Because of his bad reputation caused by the wrongful accusation in 2012, his parents felt ashamed. Everyone in his community insulted him in front of his parents.

    ·His father was a politician with good reputation. He was head of their [village], a director of [a business] in Amritsar, [an official] of sports club, and [an official] of [a political party] in Punjab. Unfortunately, he died [in] 2012 before the charges were dropped against him.

    ·His brother and sister have suffered because of his bad reputation and are now against his returning to India.

    ·If he returned to India his son would not be unable to go to school, play outdoors or purchase anything. As a result, it is highly possible that the applicant's son will become illiterate and unemployed. By bearing the humiliation and pressure from the society, his son will eventually be estranged from him with disrespect.

    ·He was telephoned by people in India who have insulted him because of his criminal record, calling him a 'bloody [criminal]' or 'son of bloody [criminal]'.

    ·The public in India are inclined to execute people who have been charged with [Criminal offence 1]. The authorities do not provide protection. Instead, the Indian Government can arrest him at any time as long as he has a criminal history.

    ·He cannot survive financially in India because he has sold all of his personal properties and house. Some of this money ($[amount]) has since been stolen when the guarantor absconded with his proceeds.

    ·He will not be able to earn a living.

    ·The applicant claimed in his PV interview that he is suffering from the poor treatment he received when in prison and due to three key issues that is placing him under pressure at the moment. These three issues are:

    oThis process of seeking asylum is causing a lot of stress in his life.

    oThe applicant has engaged a solicitor [and] is in the process of applying for an ex-gratia payment for wrongful imprisonment for a sum of $[amount]. This case is still pending and in the meantime he and his wife have had to survive on very little money,

    oHe is being harassed by the people to whom he owes money. People are asking him for money. He owes $[amount] to three men in Australia; one of them has threatened to kill him if he does not pay them.

    ·The applicant claimed in the PV interview that he has attempted and continues to think about killing himself. He was strongly encouraged at that time to speak with a doctor about these thoughts, and if he is not already, seek professional assistance.

    ·The applicant stated in his PV interview that the authorities in India will be after him, They will think he has done something wrong because he was kept in jail for so long and should he return to India he will be deported.

    ·The applicant claimed in a submission received after his PV interview that because his father was a popular politician in India he had political enemies who were against his father's popularity. The applicant claims to fear that these political enemies of his father will use their power to have him arrested and implicate him in other cases. He claims that anything could happen in India, they could bribe a policeman. There are so many false [cases] with the shame and humiliation causing so many people to kill themselves.

1. Immediately prior to the hearing, the applicant requested that his mental health be included as a claim.

2. Immediately prior to the hearing, the applicant requested that his son’s mental condition and speech condition be included as a claim.

   Evidence:

3. The Tribunal has before it a range of material, including, relevantly:

   ·The applicants protection visa application form completed and signed [in] March 2013, lodged [in] March 2013 (“visa application”);

   ·The applicants identity documents being certified copies of a passports;

   ·The protection visa decision record (‘delegate’s decision record’) of [November] 2013;

   ·The RRT decision of 26 November 2014;

   ·The decision of the Federal Circuit Court of [December] 2016;

   ·Files of the department and RRT and this Tribunal relating to the application;

   • Documents on the departmental file include a letter from lawyers for the applicant in relation to an application for an ex gratia payment for wrongful imprisonment, a report from [an individual], who describes herself as a Psychoanalytic Psychotherapist and Psychologist that was apparently prepared for the purposes of the same application, letters from [the applicant’s] uncle and two brothers, and a letter from his former employer;

   ·The applicant was interviewed by an officer of the Department in relation to his claim [in] October 2013. A recording of the interview is on the departmental file;

   ·Documents in the RRT file included a statement from the applicant’s uncle, also named [the same name as the applicant], a letter from the Attorney General of [state], denying a claim for compensation, together with the following documents submitted to the RRT after the hearing by the RRT:

   •          Copies of newspaper reports claimed to be from Punjabi newspapers dated 4 May 2014, 5 May 2014 and 7 May 2014, with accredited translations;

   •          Copies of articles from online media reports from the [website], dated [on various dates in February 2012] about bail applications made by the applicant and his co-accused;

   •          Letters of support for the applicant from [multiple associations];

   •          A letter of support from the applicant’s treating Psychiatrist;

   •          A copy of a letter dated [in] May 2014 purportedly from a former [official] in New Delhi and [a senior official] of [another] Association [to] the Indian Consulate in [an Australian city];

   •          A copy of a letter purportedly from [an individual], who describes himself as ‘head over 60 village in punjab’ [sic]; and

   •          Copies of letters of support purportedly from three village leaders from other villages, two of which are identical and the third of which commences with the same opening paragraph.

   ·Submissions received for the applicant prior to this hearing included:

   oReport from Refworld, purporting to be Country Information on India;

   oGuidance Report on the third-named applicant, dated [in] June 2016 but in relation to an assessment dated [in] June 2017;

   o[A] Report, undated but relating to assessments made between [February] and [Aril] 2016;

   oMedical certificates certifying to the applicant’s back pains, depression, anxiety and tiredness in support of a deferral of the hearing (which was granted);

   ·Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on India, published on 15 July 2015, DFAT Thematic Report Indian State of Punjab, published on 7 December 2016 and Country Information Report, Nepal, dated 21 April 2016.

   Country of reference / receiving country

4. The applicant claims to be an Indian national. Based on the copy of his passport provided to the Department of Immigration and Border Security (The Department) by the applicant, the Tribunal finds that India is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

5. Hearing:

6. The applicant attended the hearing on 13 November 2017. He was accompanied by the second-named applicant, his wife. The hearing was assisted by an interpreter in the Punjabi language.

7. The Tribunal opened the hearing by noting the various certificates it had received from the applicant’s doctors. All certificates had been received in conjunction with requests to delay the Tribunal hearings. The Tribunal acknowledged to the applicant that it was aware of the health issues raised in the medical certificates, including the applicant’s back pains, and his anxiety and depression. The Tribunal stressed to the applicant that he should request breaks from the Tribunal whenever he felt the need. The Tribunal invited the second-named applicant to do the same and to also speak up if she felt that the applicant was under duress or if she felt he was having problems with the interpreter. The Tribunal also noted that it had set four hours aside for the hearing, but given all the circumstances, it was likely that the  Tribunal might adjourn after a couple of hours and resume in a couple of weeks. It was agreed that all parties would monitor the hearing and monitor the effects of it upon the applicant.

   Assessment of Claims and evidence, and findings:

8. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

9. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

10. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

11. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

12. The Tribunal noted that the applicant attended his scheduled Protection Visa Interview with the delegate. As with his interview with the delegate, at the hearing the applicant expressed his claims in a genuine manner, his oral testimony was generally consistent with his written claims and he spoke fluent English for the duration of the hearing. The applicant appeared quite nervous at first and was very softly spoken. While the applicant spoke honestly, he experienced difficulty in expressing himself clearly and as a result he was prompted on several occasions throughout the course of the hearing, and in many cases, he referred to his wife for assistance with questions.

13. The Tribunal noted the claims that were set out in the applicant’s statutory declaration and summarised in paragraph 43 above. The Tribunal read out to the applicant the claims that had been summarized by the delegate in the delegate’s decision and asked whether they were accurate. The Tribunal also mentioned the two additional claims that had been raised prior to the hearing.

14. At about three-quarters of the way through the reading of the claims, the applicant became quite agitated and asked why he had to go over all of this again. He said he was trying to forget about it all and gave an impassioned account of the effect this whole issue was having on him, his wife and their child. It was the first of many such submissions during the hearing. The Tribunal reminded the applicant that it was part of a process of the applicant making his case for a protection visa. He had made a written application, the delegate had made a decision unfavourable to him, he had sought a review to the RRT, which again was unfavourable, and then appealed to the Federal Circuit Court. The FCC had directed that the matter be heard again by this Tribunal. The applicant was also agitated by how long the process was taking, and the Tribunal noted that the applicant had sought, and had been granted, a couple of extensions for the hearing, which also had delayed the process. The applicant stated that he had come here to make a good life, but that it hadn’t worked out that way. After the applicant settled, the Tribunal continued reading the claims. The applicant, and the second-named applicant, agreed that the claims as read (from paragraph 44 above), were accurate.

15. The Tribunal then sought to engage the applicant and second-named applicant in a discussion about their families.

16. The applicant reported that his wife was working. He was not working due to his depression, but he hoped to one day work.

17. The applicant’s mother still lives in India in the family home. She prays for her son.

18. The applicant spoke of a brother. He doesn’t speak to his brother. The brother is now married and lives in a property the applicant described as his (the applicant’s). The applicant stated that his brother has said bad things about the applicant’s wife. He says his brother believes that the applicant is lying about having lost $[amount]. The back story on this is that the family sold some property in India at a cheap price in order to assist the applicant with his legal fees. An intermediary was to bring the proceeds of the sale to the applicant, but instead he vanished with the money. He also says his brother has always resented the property having been sold at a cheap price to assist the applicant.

19. The applicant has a sister he doesn’t talk to either. He says she has gone on with her life not caring about the applicant.

20. The applicant states that he talks to his mother “once in a blue moon”. She rings but to speak to her grandson. The applicant says that his siblings won’t let their mother come to Australia.

21. The Tribunal discussed the second-named applicant’s family. Her father passed away [in] July 2017. Her mother is a [patient]. Her brother is [an occupation] in the same village.

22. During the trauma of her husband being in jail, the people in the village were telling her family to bring her and her son back. Her father said no, as it would be harder for them in India than in Australia. The villagers told her father that he had allowed his daughter to marry the wrong person.

23. The second-named applicant remains in contact with her family. She says her father wanted to see his daughter before he passed, but couldn’t.

    Delay in making application

24. The Tribunal discussed with the applicants the reasons for the delay in making the protection visa application. The Tribunal noted that the applicant was released from prison [in] November 2012 but the protection visa was not applied for until [March] 2013. It also noted that the protection visa was applied for just two days before the expiry of the second-named applicant’s second [temporary] visa. The Tribunal noted that it may have concerns about the credibility of the claims given the time delay.

25. The second-named applicant stated that they wanted to [comply with the visa] and do everything else, but both were very down and depressed as a result of the problems the applicant had had, and with the small child, it was difficult for them to focus on anything.

26. The applicant said they were focussed on their compensation claim. They had a criminal lawyer making the compensation claim for them. The Tribunal queried why that lawyer wouldn’t have advised them about the need to do something about a visa. He said he was a criminal lawyer. The applicant said they wasted two months on the compensation claim as it wasn’t successful. The applicant said they also had psychiatric appointments.

27. The Tribunal asked the applicant what he would have done had his application for compensation been successful. He said he would have stayed in Australia. The Tribunal asked the applicant about the damage to his reputation in Australia. Didn’t he fear discrimination as the charges related to an event in Australia. The applicant replied that he did not have any concerns, as Australian people are understanding. He said his doctor told him to think only about the future.

    Consideration of the application of subsections 36(3), (4), (5) and (5A) of the Act.

28. The Tribunal then referred to its need to consider whether the applicants, as nationals of India, may also have a right to enter and reside in another country.

29. The Tribunal discussed with the applicants the provisions of the Act relating to circumstances where an applicant may avail himself of a right to enter and live in another country and the situation generally regarding Nepal, a country in which it may be that he has a right to reside in.

30. Subsection 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:

    Protection obligations

    (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

    (4) However, subsection (3) does not apply in relation to a country in respect of which:

    (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

    (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that

    (a) the country will return the non-citizen to another country; and

    (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

    (5A) Also, subsection (3) does not apply in relation to a country if:

    (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

31. This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.

32. The Full Federal Court in MIMAC vSZRHU [2013] FCAFC 91, has 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.

33. In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).

    Does the applicant have the right to enter and reside in Nepal: s.36(4)

34. Under s.36(3) of the Act, as set out above, Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country, unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied.

35. In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).

36. The Tribunal raised the issue at hearing that it may appear the applicant had a presently existing right to enter and reside in a third country, Nepal, where there may not be a well-founded fear of persecution or real risk of significant harm, or a well-founded fear that Nepal may return him to India.    

37. There exists a bilateral treaty between India and Nepal, known as the Indo-Nepal Treaty of Peace and Friendship of 1950, that allows Indian and Nepali nationals to enter each country without the need for a visa or other permission.  This treaty was considered in the case of SZRHU in which the Full Federal Court directed that the Tribunal should pay regard to the actual terms of the Treaty, and evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test of a ‘liberty, permission or privilege lawfully given’, to enter and reside in the country. 

38. Article 7 of that Treaty provides that Indian nationals such as the applicant can reside in Nepal:

    The Governments of India and Nepal agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature.[1]

    [1] Accessed at the Government of India Ministry of External Affairs website; >

    Available information indicates that the administrative arrangements relating to the entry of Indian nationals into Nepal allow them to enter Nepal without seeking a visa or other permission and that these arrangements pertain under the provision of the treaty.[2]  According to a 2013 article by Professor of Economics and Executive Director of the Centre for Economic and Technical Studies in Nepal Hari Bansh Jha, ‘there is no need of passport or visa formalities among the border inhabitants or other nationals of Nepal and India.  The nationals of one country can enter into the other country through the border not merely through the checkpoints but through any point’.[3]  This article states that while there are 22 official checkpoints along the Nepal-India border, citizens of Nepal and India ‘can cross over the border without any restriction from any point’.  Nationals of other countries ‘require both an entry and exit visa and they must cross over the border through six immigration points’.  The article also comments on the ability of Nepalese and Indian citizens to escape from one country to the other, stating that when ‘there is any political upheaval in one country, people easily escape by crossing over the border’.  There is no evidence before the Tribunal that indicated the existence of practical barriers for Indian citizens being able to travel to and enter Nepal.[4]  

    [2]   See ‘Information for Indian Citizens’, Nepal Immigration, available at   Jah, H 2013, ‘Nepal’s Border Relations with India and China’, Eurasia Border Review, Spring, p. 63, available at

    [4]   Searches conducted on CISNET, open source search engines, human rights organisations, non‑government organisations, international news outlets and academic journals. 

1. The Tribunal has taken into account relevant immigration laws in Nepal with regard to the entry rights of non-citizens, including the Immigration Act 1992, the Immigration Regulations 1994 and including the Immigration Procedures 2008, as those laws are published on the website of the Department of Immigration, Nepal, as the ‘Immigration Manual’.[5]  Relevantly, the Immigration Procedures 2008 prescribe in Paragraph 8.4 the following requirements for the entry into Nepal of Indian citizens:

   [5]   See Nepal Government, Immigration Manual, available at

   8.4:     To allow Indian citizens to make travel on the basis of the following document:

   ·Passport, or

   ·Driving license with photograph, or

   ·Identity card with photograph issued by a governmental body, or

   ·Ration card with photograph, or

   ·Voter identity card with photograph, or

   ·Registration certificate issued by the Indian embassy to the Indian citizen staying in Nepal, or

   ·Ad hoc/temporary identity card issued by the Indian embassy to the Indian citizen in the event of exigency, or

   ·Document with photograph and setting out identity, issued by the sub-divisional magistrate or authority there above. 

2. This information is replicated on Nepal’s Department of Immigration website.[6]

   [6]   See ‘Information for Indian Citizens’, Nepal Immigration, available at >

   The website of the Embassy of Nepal in New Delhi provides information about the various visa types issued by the Embassy for entry to Nepal of non-Nepalese nationals, and, provides the following information for ‘Indian nationals’ entering Nepal by air at Tribhuvan International Airport, Kathmandu:[7]

   Visa for Indian Nationals:

   Effective from 1st October 2000 an Indian citizen over the age of 10 years travelling between India and Nepal by air would have to keep in his possession any of the following documents to establish his/her identity as an Indian citizen:

   ·Valid Indian passport; or

   ·Photo identity card issued by the Government of India, or any State Government or Union Territory Administration in India, or the Election Commission of India; or

   ·Emergency certificate issued by the Embassy of India in Nepal. 

   [7]  See Embassy of Nepal, New Delhi, ‘Visa Information’ available at   

3. The Tribunal asked the applicant whether he had any comment to make about this information, and particularly about the conclusion that it appears that he may have a right to reside in Nepal, given that as previously stated to the Tribunal, he and his wife still have Indian identity cards and driver’s licences.

4. The applicant then proceeded to provide many reasons why he couldn’t go to Nepal. He said there were language and religion problems. The Tribunal noted that the applicants speak both Hindi and Punjabi and that Hindi is spoken in Nepal. It also noted that English is spoken in Kathmandu. The applicant stated he couldn’t start a new life in Nepal. The Tribunal reminded the applicant he had started a new life in Australia. The applicant concluded by stating that Indians find out about everyone and do bad things. He did not elaborate on this.

5. The Tribunal asked the second-named defendant whether she had a view. She stated that many Sikhs have been killed in Nepal. She said that she had heard it on the news. She remembered an event in 1984. She said Nepal is like communism, a totally different ideology to her. She asked why would they want to go there when the Nepalese are leaving Nepal for economic reasons. She said employment will be difficult. And they won’t get medical assistance or education for their child. The Tribunal said it would look at this matter in the context of country information.

6. The Tribunal considered and shared county information accessed from DFAT reports about Nepal.

7. Article 35 of Nepal’s 2015 Constitution guarantees access to basic health services as a fundamental right. The country has a variety of public and private health-care facilities. Public health facilities include sub- health posts, health posts, primary health-care centres and district hospitals. Private health facilities range from formal hospitals, nursing homes, private practitioners (especially at clinics or private pharmacies), private medical colleges and non-governmental organisations or community-run hospitals to informal practitioners such as faith healers (jhankri or shamans) and Ayurvedic practitioners.

8. In 2007 the government of Nepal introduced free essential health care services for poor and vulnerable citizens attending primary health-care centres and district hospitals. In 2008 the policy was extended to all citizens. In 2009, free essential health services became available via primary health care centres and district hospitals. Under this system, no charges are levied for registration, outpatient, emergency and inpatient services, or for essential drugs. Use of public health facilities by lower-caste, illiterate and marginalised people has increased since the introduction of the free essential services policy.

9. Nepal’s health sector is challenged by the country’s widespread poverty, limited government funding and its remote and mountainous geography which hinders the development of appropriate health infrastructure and access to health services outside of the densely populated southern plains region. Health care services are generally considered inadequate by international standards, and some facilities, particularly in Kathmandu, were damaged or destroyed by the 25 April 2015 earthquake. Hospitals in Nepal tend to be located in urban areas and provide a much wider range of medical services than rural health centres, although the quality of health care provided in large urban centres such as Kathmandu is still variable. The average Nepali spends just 5 per cent of their annual income on health-related needs.

10. Article 21 of the 2015 Constitution guarantees every citizen the right to free education up to secondary level. Nepalis aged 25 years or older have attended an average of 3.3 years of school, and approximately 60 per cent of Nepali children leave school by grade five. The adult literacy rate for people aged 15 years or older is 57.4 per cent.

11. Education outcomes are highly variable in rural areas, with poverty, remoteness and poorly-funded facilities creating on-going barriers to education access, most notably for children from Dalit communities. These factors are exacerbated by practices such as child labour, early marriage and caste discrimination.

12. While primary education has been free and compulsory since the early 1990s, implementation has been variable due to geographic isolation and challenges associated with conflict. Parents are often required to pay examination fees, annual fees or other costs associated with textbooks, uniforms, meals and other educational materials. These fees can be difficult to pay for parents from disadvantaged backgrounds, particularly those with multiple children. A number of schools, particularly in Kathmandu, were damaged or destroyed by the 25 April 2015 earthquake.

13. The Tribunal noted that the applicants themselves are educated and understand the value of education, perhaps unlike the Nepalese. This will assist them to keep their son at school. The Tribunal also noted that when asked about their child would be educated in India, they said he would go to a private school. The Tribunal does not accept that the applicant’s son will be denied an education or medical assistance. The Tribunal notes the reports supplied by the applicant in relation to the son’s speech condition but is not persuaded that he would be denied education or medical assistance as a consequence.

14. The Tribunal discussed the prospects of living in Kathmandu. At first the applicants said they had not heard of Kathmandu. Then when pointed out to them where it was, the second-named applicant stated that she had heard it is very busy and very poor. The applicant stated that he was concerned about castes in Nepal and that the economy was very weak.

    Does the applicant face a real chance of persecution or real risk of significant harm in Nepal:  s.36(4)

15. The Tribunal must, if finding that s.36(3) applies, determine that s.36(4) does not apply. That is, the applicant will still be owed protection in Australia if he has a well-founded fear of persecution or faces a real risk of significant harm in Nepal.

100.   The Tribunal noted that there has been no media in Nepal about the applicant’s circumstances. The applicant agreed that people in Nepal wouldn’t know who they are, or what he had done, but assured the Tribunal that people would ask around, and if they couldn’t find anything, they would assume the worst, and will assume that he is a criminal.

101.   The Tribunal considered all of the applicant’s claims in the context of their application in Nepal. They would not know he had been wrongfully accused of [Criminal offence 1] or about when he was imprisoned and released. He would not have lost any reputation or respect in the Nepal community therefore would not be condemned or isolated by society. His brother and sister now have nothing to do with him and so would not object to him going to or being in Nepal. Without the humiliation and pressure from society, the applicant’s son will be able to go to school, play outdoors and purchase what he wants. He will not become illiterate and could freely seek employment. His son would have no reason to be estranged from him by reason of disrespect. The Indian Government could not arrest him or charge him with anything. His prospects of financial survival will be the same as anywhere he elected to resettle. He and his wife could seek employment, as both are educated. He could continue to seek medical support in Nepal. And his father’s political enemies would have no interest in him in Nepal.

102.   The Tribunal has noted that the applicant has claimed that he suffers from depression and PTSD. The Tribunal has considered the medical reports submitted and accepts that the applicant suffers from a depressive disorder for which he is receiving treatment. However the applicant has not claimed, and when asked, has not responded that he fears he will be persecuted or that he will be subjected to significant harm because of that depression in Nepal. The Tribunal asked the applicant whether he felt he would be denied medical assistance in India or Nepal because of his mental health.  The applicant replied that he is of a different culture and spoke a different language, and wouldn’t be able to speak to them. The Tribunal noted he and the Nepalese spoke Hindi.

103.   The Tribunal asked the applicant about his son’s claim as to his mental and speech condition. It asked the applicant to elaborate upon it. The Tribunal needed to understand how his son would be persecuted because of it. Would his son be denied assistance for health or education issues? The applicant responded that his son would grow up wanting to know what it was that his father did to have the family in this position.

104.   The Tribunal discussed the fact that the applicant is Sikh. It noted country information that Nepal is a secular state and that religious tolerance is broadly practiced and there are no restrictions on the sale or distribution of religious material. It notes that generally speaking, religious diversity and places of worship are respected. The Tribunal is satisfied that the applicant will not be persecuted by reason of his religion in Nepal.[8]

[8] DFAT Country Information Report, Nepal, 21 April 2016, p12.

105.   Asked to respond to that, the applicant said he couldn’t make a better life for himself in Nepal. And he stated that his political enemies would find him in Nepal.

Will Nepal return the applicant to India: s.36(5) and (5A)

106. The Tribunal has considered whether s.36(5) or (5A) apply, such that s.36(3) does not apply. That is whether the applicant has a well-founded fear that Nepal will return him to India.

107.   There is no evidence before the Tribunal that Indian citizens residing in Nepal, under the terms and administrative arrangements relevant to the Indo-Nepal Treaty of Peace and Friendship of 1950, have been returned without reason.

108. The Tribunal is satisfied that given all of the applicant’s circumstances, and as particularly outlined in paragraph 96 above, there is no real chance that the applicant would be returned to India by Nepal. There is not a well-founded fear Nepal would return the applicant to India or any other country. The Tribunal finds the qualifications in s.36(5) and (5A) are not enlivened.

Adjournment

109.   It was apparent to the Tribunal that the applicants were not in a position to discuss the application of subsections 36(3), (4), (5) and (5A) of the Act during the hearing. Accordingly, the Tribunal invited the applicant’s to offer further evidence before or during the next hearing.

110.   Noting that the applicant was becoming more emotional and distracted, the Tribunal elected to adjourn the hearing to a date to be advised.

111.   The hearing resumed on 16 February 2018.

112.   Shortly before the resumed hearing, the Tribunal received a written submission from the applicant by email. In it, he stated that he cannot relocate outside of Punjab and there is a threat of harm from some of his friends, the community and his family. He states that he has no academic skills that are of any use in India and in Nepal. He says he has no financial means to support himself. He stated that he cannot access protection from the authorities because [Criminal Offence 1] is a crime and he spent some months behind bars. He stated that because of his fear of discrimination, his personality is such that it will be difficult for him to adjust to living in a city or region beyond his own town. He stated that he suffers from PTSD and anxiety and that he is not social with anyone because of that and the false [criminal] case. He stated that he is living [in an Australian city] and that is not challenging because of the pleasant attitude, the acceptance of PTSD people, greater employment prospects, cultural expectations regarding mentally sick people. And mentally sick people cannot relocate in any part of his country. The Tribunal noted this submission, but noted that the applicant and his wife left India and moved to Australia and that he managed to adjust to life here where there were more marked language and cultural barriers. It was in Australia that he was accused of [Criminal offence 1], not Nepal, and that he has managed to live within Australia without adversity because of the accusation of [Criminal offence 1]. He has managed to seek and find employment in Australia. The applicant is skilled, as is his wife, and the Tribunal does not accept that seeking and finding employment in a city such as Kathmandu will be impossible. It is accepted that he may not “walk into employment” and that it may take some time, but such difficulties can not be construed as serious or significant harm.

113.   The Tribunal acknowledged the submission in the hearing, noting that the applicant is not a criminal and that he has not addressed the issue of why the people whom he claims to fear would be interested in finding him in Nepal. The Tribunal does not accept that the applicant will endure any threat of harm from some of his friends, the community and his family or his father’s political enemies, as he is not a criminal and he was not found guilty of any offence. There was no independent evidence or country information from India or Nepal supporting the proposition that people accused of [Criminal offence 1] will be targeted. The applicant had submitted copies of media stories from India about his case, but the Tribunal noted they were all sympathetic to the applicant. The Tribunal finds that the applicant will not face a real chance of serious harm or a real risk of significant harm in Nepal at the hands of his friends, the community, his family or his father’s political enemies.

114.   At the hearing, the applicant presented a number of reports containing information about Nepal.

·The Changing Paradigm of India – Nepal Relations: Problems and Prospects by Kavitha, K.K.

·Refworld report[9];

[9] Guru Nanak Satsang[10];

[10] Sikhs of Nepal, 11 March 2010[11]

[11] Nations – Economic and Social Council, 25 September 2000[12];

[12] 25 September 2000 E/1990/5/Add.45

115.   The Tribunal again discussed the applicant’s and his son’s health issues. It reiterated that it accepted that the applicant suffered from a major depressive disorder and that his son evidently had learning difficulties, but could not accept that either of them would have a well-founded fear of persecution in Nepal for reason of membership of a particular social group of people suffering from depression or with learning difficulties. The Tribunal does not accept that their respective access to treatment or services to address those health issues in Nepal would be prejudiced for a Convention reason.

116.   The Tribunal discussed with the applicant’s wife the contents of the documents provided. The United Nations report was dated September 2000 and was now 18 years out of date. It gave an economic and demographic review of Nepal. The Tribunal considered the DFAT Report to be more contemporary and relevant and therefore gave this report little weight.

117.   The Kavitha article looked at the India – Nepal relationship, noting the treatment of the Nepalese in India and suggesting that was the cause of the ill-treatment meted out to Indians by the Nepal Government. It did not define what that ill-treatment was. The rest of the article was more inclined to advance the notion of a unique relationship between India and Nepal of friendship and cooperation characterised by open borders and deep rooted people to people contacts of kinship and culture.

118.   The Refworld article considered the position of mental health treatment in Nepal. The applicant stated that he was no longer under medical care. The article noted that whilst there were mental health services in Nepal, there were not any dedicated mental health units. Nepalese are relying more on NGO’s for mental health care which have limited funding.

119.   Finally, the “Sikhs of Nepal” article notes there are over 3000 Sikhs living in Nepal, including Kathmandu. Ninety percent of Sikhs are involved in the transport industry. It is the belief they will be successful through the transport business that has made it possible for Sikhs all over to adapt easily to new environs and to spread all over. The article cited the example of one family in the transport business which owns over 700-800 vehicles. It said Nepal had been good to them, but acknowledged citizenship issues made it difficult to own property.

120.   Post hearing, the applicant submitted two further documents.

121.   The first was an extract from Quora.com which is an open forum for public comment. The Tribunal placed little weight on this document as the authenticity of the authors could not be verified.

122.   The second document was an article by Vidya Bir Singh Kansakar, PhD, that had been highlighted in parts by the applicant. It looked at the evolution and history of Nepal’s boundaries. The sections highlighted dealt with the prospects, problems and challenges arising from the Nepal India open border. The problems related to smuggling and trafficking and illegal trading, and the impact of the deployment of the Nepalese army to the border region. Nothing submitted addressed the issue of how the applicant and/or his family might be persecuted in Nepal.

123.   The country information submitted has not persuaded the Tribunal to the view that the applicant, whether as a Sikh, an Indian, or as one suffering mental health issues, will be persecuted in Nepal. 

Cumulative claims

124.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, country information for Nepal as discussed with the applicant, and as submitted by the applicant, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of his being a Sikh, an Indian, as one suffering mental health issues, his son suffering speech and developmental issues, him having been accused of [Criminal offence 1], his claims as to financial and employment issues, or any other reason if he enters Nepal now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future, if he enters and resides in Nepal.

Overall Conclusion:

125.   The Tribunal finds that the applicant has a right to enter and reside in Nepal and has not taken all possible steps to avail himself of that right.

126. Furthermore, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for any Convention reason in Nepal and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm in Nepal.

127. The Tribunal further finds that the applicant does not have a well-founded fear of being returned from that country to a country where he has a well-founded fear of being persecuted. Nor does the applicant have a well-founded fear of being returned by Nepal to a country where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm.

128.   Accordingly, Australia does not have protection obligations in respect of the applicant.

129. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

DECISION

130.   The Tribunal affirms the decision not to grant the applicants Protection visas.

Michael Hawkins
Member