1701800 (Refugee)

1701800 (Refugee) [2019] AATA 5751 (16 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701800
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Hugh Sanderson
DATE:16 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 December 2019 at 3:11pm
CATCHWORDS
REFUGEE – protection visa – Nepal – particular social group – perceived family relationship to former royal family because of surname – harassment by people from different political parties, especially Maoists – house burned, husband assaulted, parents in hiding – no personal harm – credibility – inconsistent evidence – genuineness of supporting documents – father’s continued employment, parents’ travel, applicant’s and sibling’s travel to Nepal and applicant’s plans to travel in future – delay in applying for protection – claims of persecution raised only after temporary visa application process expired – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 January 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Nepal, applied for the visa on 15 August 2016. The delegate refused to grant the visa on the basis that the delegate did not accept the claims made by the applicant that she faced any fear of persecution for real risk of any significant harm.
Background
The applicant is a citizen of Nepal and is currently [age] years old. She has provided to the Department a copy of her Nepalese passport. She first entered Australia in February 2008 holding a [Student] visa. Her husband, [Mr A], accompanied her as a member of her family unit. The applicant returned to Nepal, departing Australia [in] October 2010 and returning [in] November 2010.
The applicant applied for a Student visa as a dependant of her husband in May 2012. This application was refused by the Department on 5 April 2013 on the basis that bogus documents had been provided in support of the application. That decision was affirmed by the Tribunal (differently constituted) on review on 21 February 2014. An appeal of that decision to the Federal Circuit Court was dismissed [in] January 2015. An application for Ministerial Intervention was declined on 1 June 2015.
The applicant’s husband returned to Nepal departing Australia [in] May 2016.
In her application, the applicant made the following claims:
·     She left Nepal because it was hard for her and her family after the fall of the monarchy as her family is related to the royal family as they have the name ‘[Family Name 1]’;
·     After the fall of the monarchy, people from different political parties made her family’s lives difficult and insecure;
·     In 2003 when she was at school in [City] in [Country 1], her family’s house in Kailali was burned down by Maoists forcing them to move to Kathmandu for safety;
·     Even living in Kathmandu, the Maoist and other parties have made her family’s lives difficult; and
·     They had contacted the police and Home Ministry, but due to the scale of activities from the political parties the authorities are unable to help them.
The applicant provided various documents in support of the application including the following:
·     A [Police] Office report dated [March] 2010 stating the applicant’s father’s home had been completely destroyed [in] February 2010 by a bomb explosion from unidentified persons;
·     A Police Headquarters report from Kathmandu dated [June] 2016 stating the house of the applicant and her family was destroyed [in] February 2010 by a bomb explosion from unidentified persons and the applicant’s life is unsecured (sic);
·     Letters from the applicant’s father and [relative] saying that they are both retired [Occupation 1 workers] and due to the instability of the government in Nepal there is a threat to the applicant as they have a bad history with the Maoists and Madhesi groups and many people and [Occupation 1 workers] have lost their lives since the new constitution; and
·     A letter from [Mr B], chairman of [an] NGO, claiming that from his information about her family the applicant cannot stay in Nepal due to threats from the Maoist and Madhesi groups.
The applicant was interviewed by an officer from the Department. During the interview, she made the following claims:
·     Her parents are living in Kathmandu in a property they own;
·     Her father retired from [a government organisation] about eight years ago, after the new constitution was adopted, and is in receipt of a pension;
·     The applicant keeps in touch with her parents almost every day using Skype, Viber and telephone calls;
·     The applicant’s [sibling] is currently studying in Australia;
·     The applicant’s parents do not want her to return to Nepal because it is too dangerous and they also don’t want her [sibling] to return to Nepal because Maoists are killing everybody and everyone is in hiding;
·     The Maoists have come to her family and threatened them because they are related to the royal family, although not closely, but just because they have the name of [Family Name 1];
·     The applicant did not apply for a protection visa previously because she wanted to get her education first and was also depressed “or something like that”; and
·     The applicant could not relocate to [Country 1] because she has no property there and her father has not moved there as he retired about eight years ago and so never thought about moving to [Country 1].
The delegate who considered the application noted the following:
·     When interviewed the applicant provided inconsistent information as to her claims;
·     As the applicant’s father is a retired [Occupation 1] and receiving a government pension, there does not appear to be any threat to him or any members of his family;
·     The applicant’s father continued working as [an Occupation 1] after the fall of the monarchy in 2008 in Nepal;
·     The claims that she would be targeted because of her name are not plausible as there are multiple examples of people with the name of [Family Name 1] living normal lives in Nepal, including members of the former royal family living and working in Kathmandu;
·     The letters provided by the applicant are self-serving and lacking in detail;
·     The reports of the applicant’s families home being destroyed in the police report state this occurred [in] February 2010 and not in around 2005 or 2006 as reported by the applicant; and
·     The application was only filed after the applicant had exhausted all attempts to remain in Australia.
The delegate did not accept the claims that the applicant had made that she would face any harm or risk if she returned to Nepal. The delegate found the applicant did not meet the definition of a refugee or that she faced a real risk of suffering significant harm if she returned to Nepal. Accordingly, the delegate refused the Protection visa application.
Information to the Tribunal
The applicant appeared before the Tribunal on 10 December 2019 to give evidence and present arguments. The Tribunal also received evidence from the boyfriend of the applicant, Mr Dawla. The applicant was represented by her registered migration agent, who did not attend the hearing.
The Tribunal commenced the hearing by explaining to the applicant the process under s.424AA of the Act. The Tribunal explained to the applicant it would be putting to her information 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 invite the applicant to comment on or respond to the information. If she required more time, she could request an adjournment.
The applicant said that she was currently working [in] a [workplace]. She said that her boyfriend owned the [workplace] and she had been working there since 2008. She said that she had been living with her boyfriend for the last two years.
The applicant said that she divorced her former husband, [Mr A], in 2018. She said that she asked her father to apply for the divorce in Nepal and he arranged everything. She said she believed that her former husband had remarried.
The applicant said that her former husband was beaten up at the end of 2016 because of his association with her. The Tribunal noted that the applicant had not referred to this when she was interviewed by an officer from the Department. She said that she did not think about it at the time. She then said that she was confused about dates and he was beaten up after she had been interviewed by the officer from the Department. The Tribunal noted that she had been interviewed by an officer from the Department on 19 January 2017 and she had not indicated that her former husband had any problems living in Nepal or had been assaulted for any reason. The applicant then said that she was confused about the dates and that he had been working in Nepal for a while and was then beaten up. She claimed that she had been speaking to him at the time. She said that she was really confused about dates.
The applicant said that she had never been assaulted or suffered any direct harm when she had been living in Nepal. She said that her fear of returning to Nepal was just the general situation there.
The applicant said the last time she had been in [Country 1] was in 2011 when she returned to Kathmandu. She said that she returned to Kathmandu because she felt like going there and seeing her father, but her father told her she should go away as it was too dangerous.
The Tribunal asked the applicant the circumstances of how and why the Maoists would be targeting her. She said that she was not into history and could not remember when things happen. She said the monarchy ended in 2002 and the Maoists came into power. The Tribunal indicated that the monarchy ended in 2008. The applicant said that she was not into history and was not involved in any political party. She said there was nothing that had happened to her personally, just that it was dangerous.
The applicant said that she was a student in [City] in [Country 1] in 2004 for about a year-and- -a-half. She said that at that time her father was [an Occupation 1] and so he did not suffer any problems. She said that her father had a property in Kathmandu which had been sold and her mother owns a property in Kathmandu. She said they now lived in rented accommodation. She said her parents had been living in Kathmandu for a long time, but they had moved around Nepal a lot due to her father’s work. She said that when she returned to Nepal from [City] she was living with her parents in Kathmandu.
The Tribunal referred to the allegation the applicant made that her family’s home had been destroyed. She said that she thought she was in [City] when this happened. She said that it happened some time in 2004 or 2006. She said nothing happened to her personally.
The applicant said that her parents are currently in hiding and they have told her that it is too dangerous for her to return to Nepal. She said that her parents did not like her future in Nepal. She said the Maoist people will kill her and they are targeting all her family. She confirmed that her family’s home had been burnt down prior to her first entering Australia.
The Tribunal referred to the two letters purportedly from the police dated [March] 2010 and [June] 2016 stating that her parents’ home had been destroyed [in] February 2010. As this was inconsistent with the information being provided by the applicant, it called into question the claims made in those documents and whether those documents were genuine. It also called into question the credibility of the claims being made. The applicant said that the police may have made a mistake. The Tribunal noted that the dates of the letters are different and it is hard to understand how a letter dated [March] 2010 would make an error in reporting the destruction of a home that purportedly occurred [in] February 2010 the month prior to the letter. The applicant said that when she wanted the papers she did not know how they were obtained. She said that maybe another house got destroyed that she does not know about.
The applicant said that her [sibling] was currently living in Australia. She could not say when her [sibling] had last returned to Nepal. The Tribunal referred to the process under s.424AA of the Act referred to above. The Tribunal referred to the movement records of the sponsor’s [sibling] which show that [s/he] had travelled out of Australia [in] December 2017 returning [in] May 2017. This was relevant as it indicated that [s/he] had returned to Nepal at that time which would indicate that her family does not have any difficulty in returning to or living in Nepal and undermines the claims made by the applicant.
The applicant said that maybe [s/he] did return to Nepal. She said that her family could land in Nepal but they could not live there.
The applicant said that she was planning to go back to Nepal to introduce her boyfriend to them. She was hoping to return to Nepal next year. She said that she had not told her parents that she was in a relationship with her boyfriend and she had not told her boyfriend anything about her current claims.
The applicant claimed that her father knows about the claims that she has made and he has told that it is not safe to return to Nepal. The Tribunal referred to the process under s.424AA of the Act. The Tribunal showed the applicant the letter purportedly signed by her father which the applicant provided to the Department. The Tribunal compared this to a letter the applicant’s father provided in support of her [sibling]’s Student visa application. The Tribunal noted the signatures on those documents did not appear to be the same. The Tribunal indicated that the fact that the signatures were not the same may lead the Tribunal to conclude that the letter purportedly signed by the applicant’s father in support of her application was not genuine and that her father did not have any fear of the applicant returning to Nepal. The applicant said that although the signatures did not look the same, they were both from her father.
The Tribunal referred to the letter from the applicant’s [sibling] supplied in support of [her/his] Student visa application where [s/he] stated that Nepal had a growing economy and there are endless opportunities available. As this did not indicate that the applicant’s [sibling] or her family faced any difficulties and there were opportunities available in Nepal, this did not support a finding that the applicant and her family faced any persecution or fear of harm in Nepal. The applicant said that she had no comment about this.
The Tribunal referred to the letters from the applicant’s father and mother in support of her [sibling]’s Student visa application. Both these letters stated that her [sibling] would return to Nepal and did not indicate that there was any problem facing their family in Nepal. This did not support a finding that the applicant and her family faced any persecution or fear of harm in Nepal. The applicant said she had no comment about this.
The Tribunal referred to the employment certificate from [Employer 1] dated [May] 2014 stating that the applicant’s father had been working as [Job title] for [Employer 1]. The applicant interrupted the Tribunal at this time saying that he did and she had forgotten about it. The Tribunal stated that this information was relevant as it indicated the applicant’s father was able to obtain employment in Kathmandu and was not in hiding and indicated that the applicant’s family did not face any fear of persecution or harm living in Kathmandu. The applicant said she had no comment about this.
The Tribunal referred to the interview of the applicant conducted by the Department. The Tribunal noted the applicant did not make any comment about her former husband being assaulted. The applicant also had stated that she had not had contact with her former husband for some time prior to the interview which was inconsistent with the information the applicant was now providing to the Tribunal. This undermined the credibility of the applicant’s claims and that she faces any fear of persecution or harm if she returns to Nepal.
The applicant said that maybe her former husband had lied to her. She said that she had been talking to him for a while, and did not remember the date when their relationship ended. She said the relationship ended when he got beaten up because he was married to her. She said that she did not mention this during the interview as it just did not come to her head.
The Tribunal referred to the country information supplied by the Department of Foreign Affairs and Trade (DFAT) which stated that the overall security situation throughout Nepal had dramatically improved since the end of the conflict in 2006. This was relevant as it indicated that if the applicant returned to Nepal she would not face any persecution or harm. The applicant agreed that there was no harm now, but then said that her family do face problems.
The Tribunal referred to the information from DFAT 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. The Tribunal noted that the applicant does not claim to have any association with any political party and this would indicate that she would not face any threat of harm from any Maoist organisation or any other group. The applicant said that her family does face such threats.
The Tribunal noted that she had not applied for the Protection visa until after she had been in Australia for more than eight years. The application was only filed after she had been refused a last opportunity to be able to remain in Australia. This delay indicated that her claims were not genuine. The applicant said that this kind of thing did not come to her head until she filed the application. She said that she thought things would settle down.
The applicant said that her parents continue to live in Kathmandu although travel all over the country as well as staying in rented places. She said that they had also travelled to [Country 1] and [Country 2]. She said that they always returned to Nepal because they are old and want to live there. The Tribunal indicated that it was not plausible that her parents would be living in Kathmandu travelling throughout Nepal if they were in hiding. The applicant said that when her family are in Nepal they are always in hiding, even when travelling around the country.
The applicant said that she had not told her boyfriend about the Protection visa application. She said that she had not told him about the claims that she was making as to why she could not return to Nepal. She said that she didn’t feel like talking to him about this.
The applicant’s boyfriend said that he had been living with the applicant for two years and had known her since 2008. He described her as his “everything”. He said that he did not know if the applicant’s parents have any problems living in Nepal. He said that he did not know the nature of the application before the Tribunal. When he was told that it was in relation to a Protection visa application, he said that he did not know what problems the applicant has in Nepal. He said that she had an ex-husband, but did not want to know about her past life.
CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
On the basis of the applicant’s identity documents, including her 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.
In her application, the applicant claimed that she was not able to return to Nepal as her family are related to the royal family and they were deliberately targeted by civilians after the monarchy collapsed. She claimed all her family had been targeted by Maoists and other political parties. When questioned, the applicant acknowledged that her family were not directly related to the royal family but as they had the family name of ‘[Family Name 1]’ they were associated with the royal family and therefore targeted. She claimed that her parents’ home was destroyed as a result of them being associated with the royal family.
The Tribunal does not accept that the applicant or her family have faced or currently face any persecution in Nepal or that the applicant, or any member of her family, faces a real risk of suffering significant harm while living in Nepal.
The applicant has not claimed that she has personally suffered any harm or injury at any time in Nepal. Although she claims that her parents who continue to live in Kathmandu are constantly in hiding, the only claim she has made of any harm that has been suffered by her family has been the claim that her parents’ home in Kailali was burnt down.
The applicant has provided inconsistent information as to the circumstances of this event. In her application, she claimed the home was burnt down by Maoists in 2003 while she was attending school in [City] in [Country 1]. At the hearing before the Tribunal, the applicant was not able to provide any clear information as to this event. She claimed that she was in [City] at the time and she thought the house was burnt down some time between 2004 and 2006. She claimed that she had attempted to obtain documentation to prove this event, but had not been able to do so.
The Tribunal does not accept that if the applicant’s parents’ home had been destroyed that the applicant would not be able to provide more information about the event. She was not able to provide any contemporaneous information to corroborate the claim or provide any information to establish the ownership of the claimed property. As her parents continue to live in Nepal it would be expected that they would be able to have access to documentation to substantiate the claims made by the applicant. No such documentation has been provided.
The applicant provided two police statements, the first dated [March] 2010 issued by the police sub-inspector and the second dated [June] 2016 issued by the superintendent of police. Both documents state that the applicant’s father’s home was “destroyed on February [date], 2010 by making bomb explosion from unidentified persons”.
The fact that the applicant claimed that her parents’ home was destroyed when she was in [City] and before she travelled to Australia means that the information provided in the purported statements from the police do not support her claims. The fact that both statements claim that the house was destroyed [in] February 2010 calls into question the genuineness of these documents and the information being provided by the applicant.
The applicant explained this inconsistency by claiming that the police might have made a mistake. The Tribunal does not accept that if the documents are genuine, the police have simply made a mistake. The documents have purportedly been made six years apart. The first document, dated [March] 2010, has purportedly been written only a month after the incident. The Tribunal does not accept that if this document is genuine and was written [in] March 2010 that it would have referred to the destruction of the home occurring only one month prior to that date if, as has been claimed by the applicant, the house was destroyed when she was in [City] and before she came to Australia.
The Tribunal finds that both documents are bogus. The Tribunal finds that no official claim or complaint has been made to the authorities in Nepal about the applicant’s parents’ home being destroyed or damaged for any reason. The Tribunal does not accept the claim made by the applicant that her parents’ home was burnt down or destroyed by Maoists or any other group or organisation.
The applicant has claimed that her parents are in hiding. She claims that all her family members are in danger in Nepal. The applicant has provided letters from her father and other people supporting this claim.
The letters provided do not provide any particulars of any threat or harm that the applicant or any members of her family have received. The letter, purportedly from her father, claims that “several times we have been extorted by these groups and some of our properties are still under their control”. No details of any extortion attempt or threats made against the applicant’s family have been provided. Similarly, the letters from [a named person] and [Mr B] provide no details or information which would indicate that the applicant or any member of her family have been targeted or have suffered any persecution or harm from anyone or any organisation in Nepal.
The Tribunal compared the signature of the applicant’s father in the letter provided in support of her application to the signature of her father on a letter provided by her father in support of her [sibling]’s Student visa application. When shown the two documents, the applicant initially denied that the signatures were different. She then acknowledged that the signatures were not the same, but claimed that both documents were signed by her father. No explanation was provided as to why her father would have two different signatures when signing letters in support of his daughter’s applications.
No other information has been provided by the applicant from her family or anyone else which would indicate that they face any persecution or fear any harm while living in Nepal. That the letter provided by the applicant to the Department appears to have a different signature to that of other documents signed by the applicant’s father raises a question as to whether this document and the other letters provided in support of the application are genuine.
The applicant gave evidence as to her father’s activities in Nepal. She claimed that her parents live in hiding due to the threats made against them. Despite this, she claimed that her parents have also travelled extensively throughout Nepal living in rented accommodation. She claimed they had also travelled to [Country 1] and [Country 2]. There is no information to indicate that her parents have sought to remain living in [Country 1] or they have sought protection in [Country 2] when they travelled there due to any concern they have about their safety in Nepal.
The applicant claimed that her parents do not want to live anywhere else apart from Nepal, despite the claim of threats against their lives, as they are old and wish to remain living there. The Tribunal does not accept that if the claims being made by the applicant that all members of her family face persecution because of their perceived connection to the former royal family of Nepal that her parents would not seek sanctuary, either in [Country 1] or in some other country, if the opportunity arose. The Tribunal finds the applicant’s parents have remained living in Kathmandu and have been able to travel extensively throughout Nepal without any difficulty. This undermines the claims made by the applicant that she and her family face any persecution or threat of harm in Nepal due to any perceived connection to the royal family or for any reason.
The applicant’s father was [an Occupation 1]. He retired in December 2009. This was more than three years after the monarchy ceased direct rule and more than a year after Nepal became a republic and the Maoists formed the first government. That the applicant’s father continued to work as [an Occupation 1] after the Maoists formed a government in Nepal further undermines the claims made by the applicant that she or any member of her family faces any persecution or threat of harm due to their family name or any association with the former royal family.
The applicant’s father has, since retiring from the [government organisation], been employed as the [Job title] for the [Employer 1]. That the applicant’s father was able to take such a job indicates that he is not in hiding in Kathmandu but has been able to find further employment in a responsible position. This does not support the claim that the applicant’s family face any persecution or harm as a result of their name or any association with the former royal family.
The applicant’s father arranged for the applicant’s divorce from her former husband in Nepal. The applicant said that her father arranged this through a lawyer in Nepal. The Tribunal does not accept that if the applicant’s father was in hiding that he would have been able to make arrangements for the applicant to divorce her former husband. That he was able to engage a lawyer and in the legal process to arrange for the divorce to take place indicates that the applicant and her family do not face any fear of persecution or harm in Nepal.
The applicant’s [sibling] currently resides in Australia. [Her/His] movement records indicate that [s/he] departed Australia in May 2017 and did not return again for 15 days. The applicant believed that [s/he] had travelled to Nepal over this time. That the applicant’s [sibling] returned to Nepal indicates that the applicant and her family do not face any persecution or fear of harm in Nepal. The applicant claimed that her family can land in Nepal, but they cannot live there. The Tribunal does not accept that if the applicant or any member of her family faced persecution for any reason in Nepal because of their presumed association with the former royal family that the applicant’s [sibling] would have returned for any period of time to Nepal. That [s/he] appears to have done so further undermines the claims made by the applicant.
The applicant herself stated that she plans to return to Nepal and introduce her boyfriend to her parents. That the applicant would state that she is considering returning to Nepal for a visit further undermines the claims that she faces any persecution or fears any harm in Nepal. The Tribunal does not accept that if the applicant’s claims were genuine that she would consider returning to Nepal but would, at most, consider meeting her family in some third country rather than her returning to Nepal itself where she claims to fear harm.
When interviewed by the Department the applicant stated her husband had returned to Nepal in May 2016 and she claimed that she had not had any contact with her former husband for between four and six months prior to the interview. She did not make any claim that her former husband had suffered any harm or difficulties upon his return to Nepal. At the hearing before the Tribunal, the applicant claimed that her former husband had been beaten up in Nepal at the end of 2016 and it was for this reason that he ended his relationship with her. The applicant said that she had not mentioned this when being interviewed by the Department because she didn’t think about it. The Tribunal does not accept that if her former husband had been assaulted as a result of his relationship with the applicant because her name was associated with the former royal family in Nepal that she would not have included this when claiming that she faced persecution or feared harm in Nepal. That she did not make this claim in January 2017 undermines the claims that she faces any persecution or harm in Nepal.
When questioned further about this by the Tribunal, the applicant provided further confused and inconsistent information. She claimed that she had been confused about the dates and that the assault had occurred after her interview with the Department. This is despite the fact that when interviewed by the Department she said that she had not had any contact with her former husband for four or six months prior to that interview. When this was put to the applicant, she claimed that she was just confused.
The Tribunal has taken into account the information provided by DFAT as to the current situation in Nepal. Nepal was ruled by a monarchy and in 1996 Maoists began a nationwide violent insurgency against the government. In February 2005 the then King assumed absolute power in a coup supported by the Army. A people’s movement in April 2006 forced the King to relinquish direct rule. Parliament subsequently abolished monarchic rule and Nepal became a republic in 2008. Maoists formed the first government and coalition governments have dominated Nepal since then.[1]
[1] DFAT Country Information Report Nepal, 1 March 2019 at paragraph 2.4.
DFAT reports that ‘the overall security situation throughout Nepal has dramatically improved since the end of the conflict’.[2] When this information was put to the applicant, she agreed that it was “okay in Nepal” before then claiming that people and [Occupation 1 workers] are being killed all the time. The Tribunal put to the applicant that it had been unable to find any information to support this claim. The applicant was not able to refer to any other information which would indicate her claims were credible.
[2] DFAT Country Information Report Nepal, 1 March 2019 at paragraph 2.41.
The Tribunal referred to the DFAT report which stated that ‘in general, DFAT assesses that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they faced no greater threat of violence than other participants’.[3] The applicant was not able to provide any response to this information.
[3] DFAT Country Information Report Nepal, 1 March 2019 at paragraph 3.45.
The Tribunal finds the country information available about the situation the applicant would face if she returned to Nepal does not support a finding that she would face any persecution or any real risk that she would suffer significant harm in Nepal. The applicant has not provided any information which would indicate that she has been personally targeted for any reason or that she is of any particular social group which would face persecution or any real risk of significant harm. She has indicated that she is not a member of any political party or association and her lack of knowledge of Nepalese history would indicate that she has no perceived political opinion.
The applicant has claimed that her family has suffered persecution since the end of the monarchy in Nepal. The application for a Protection visa was not filed until August 2016, more than eight years after the applicant first arrived in Australia. After arriving in 2008, she returned to Nepal in 2010. She claimed that she only spent a week in Nepal and was told by her father that she should leave Nepal due to the threats against her safety. Despite this, on her return to Australia she did not apply for a Protection visa at that time. The applicant applied for a Student visa on the basis of being a member of the family unit of her then husband who was claiming to be a student. This application was refused by the Department in April 2013. The applicant and her husband appealed this decision to the Tribunal and to the Federal Circuit Court and Federal Court. An application for Ministerial Intervention was also unsuccessfully made. At no time over this period did the applicant apply for a Protection visa. The only time the applicant raised any claims that she faced any persecution or risk of harm in Nepal was once all other attempts to remain in Australia had expired.
The Tribunal does not accept that if the applicant had any legitimate fear of persecution or that there was a real risk that she would suffer significant harm in Nepal after the end of the monarchy there that she would not have applied for a Protection visa sooner. The fact that the application was only brought eight years after she arrived in Australia and after she had exhausted all other attempts to remain in Australia and her former husband had returned to Nepal undermines the credibility of the claims that she has made.
The Tribunal has considered all the claims made by the applicant and the circumstances of the applicant and her family both individually and cumulatively. The only claim the applicant has made is that she and her family face persecution and a risk of harm because they may be perceived to be associated with the former royal family of Nepal. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Nepal or that there is a real risk that she will suffer significant harm is a necessary and foreseeable consequence of her being removed to Nepal. The Tribunal does not accept that the applicant would face any persecution or real risk of harm as a result of her family’s name or that she may be considered to be associated with the former royal family of Nepal. The Tribunal does not accept that the applicant or any member of her family has faced any persecution or real risk of harm in Nepal. The Tribunal does not accept that if the applicant returns to Nepal she will face persecution or there is a real risk of significant harm by any Maoist, Madhesi, or any other group or organisation or any individual for any reason.

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hugh Sanderson
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)    that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)    for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)    for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H   Meaning of refugee
(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.
…

[2019] AATA 5751

16 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice