1702857 (Refugee)

[2017] AATA 2939

1702857 (Refugee) [2017] AATA 2939 (5 December 2017)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1702857

COUNTRY OF REFERENCE:                  Nepal

MEMBER:  Shahyar Roushandsn

DATE:  5 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 05 December 2017 at 8:44am

CATCHWORDS
Refugee – Protection visa – Federal Circuit Court remittal –  Political opinion – Threatened by Maoists – Supporter of a political party– Pro-monarchy – Physically harmed – Inconsistent evidence – Delays in filing a protection visa application – Concerns as a foreign returned person – Credibility concerns

LEGISLATION
Migration Act 1958 ss 5, 65, 36, 36(2) (a) - (c), 36(2B)(b), 499
Migration Regulations 1994 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

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

   BACKGROUND, CLAIMS AND EVIDNECE

2. The applicant, a citizen of Nepal, arrived in Australia [in] May 2010 on a false passport. He applied to the Department of Immigration (the Department) for a protection visa [in] July 2011.

   Protection visa application

   The application

3. In his application for a protection visa, the applicant stated that he left his country because he fears Maoists, including the Young Communist League (YCL). He was ‘terrorised and threatened’ by Maoists ‘several times’. He fears being attacked again and killed. He is a ‘follower and supporter’ of monarchy. He ‘belonged’ to [Political organisation 1]. The authorities in Nepal would be unable to protect.

4. In support of his application, the applicant submitted a copy and translation of a statement containing his claims. These claims were as follows:

5. He was born in Ward [number], [a] Village Development Committee (VDC), [District 1]. He has [a number of] siblings.

6. The applicant’s father was ‘[an occupation]’. He worked ‘actively’ for the development of the VDC.

7. When the Maoists came to power in 1995, they went to villages and forcefully recruited young people. They also came to his house and asked his father to join them. As a strong supporter of the monarchy, his father refused and, in 1998, he was taken by the Maoists to the centre of the village. They put [an item] on his face and ‘[another item] on his neck’. He was told that if he continued to support the monarchy he will be forced out of the village.

8. In 2003, the Maoists went to the applicant’s house and asked his father to leave the village. They also threatened to kill the applicant and [a sibling]. As a result, the applicant’s family abandoned their village and moved to [another village].

9. One month after the move, the applicant was on his way to his uncle’s house when he was stopped by Maoist activists and taken ‘near the jungle. He was severely beaten and [injured] in the jungle. He was later found by some villagers and taken to a ‘health post’ for treatment. After this incident, the family moved to the nearby district of [District 2]. However, this did not stop the Maoists threatening the family. They said ‘they will not stop looking for the person’. Consequently, the applicant moved to Kathmandu.

10. In Kathmandu, he started working [and] met some members of [Political party 1]. When he told them his story, they took him to their office and he realised that [Political party 1] was engaged in ‘[a certain work]’. He joined [Political party 1] and started to work ‘actively’ for the organisation. When he found out that Maoists were looking for him, he continued his work for [Political party 1] and neglected their ‘threats’.

11. Due to his ‘active involvement’ in [Political party 1], he was given the opportunity to work as a ‘[certain role] for Dhaulagiri Zone’. During this time, he was abducted by [members] of YCL at gun point and accused of working against the Maoist principles. He was taken to their ‘camp’ at [Town 1], where he was asked to ‘donate’ [a large sum of] Nepali rupees. He was threatened with death if he failed to make the payment. The applicant asked to be given one week in order to arrange the payment. They agreed and released the applicant. The applicant approached a friend to assist him. His friend introduced him to a ‘broker’, who arranged for his departure from Nepal within three days.

12. In support of his application, the applicant submitted a document headed Transfer and Character Certificate in relation to his transfer from a school in [District 1]; a copy of school examination records; a copy and translation of a membership Identification card for [Political party 1]; a letter of Appreciation from [Political party 1]  and photographs of animals and damaged buildings.

13. In a submission in support of the application, the applicant’s representative submitted that the applicant’s claims are based on the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Convention) grounds of political opinion and membership of a particular social group. It was submitted that the applicant fears persecution by the Communist Party of Nepal (Maoists) and their cadres as he is a supporter of the monarchy and [Political party 1]. The applicant also fears that he will be asked for more donations from the Maoists. ‘Foreign returned people’ are more vulnerable and at risk of being targeted by the Maoists.

    The interview

14. The applicant attended an interview (the interview) with the Department [in] December 2011. Where relevant, the applicant’s oral evidence at that interview is referred to below.

    The delegate’s decision

15. The delegate refused to grant the visa [in] January 2012. He was not satisfied that the applicant faces a real chance of persecution for a Convention reason in Nepal.

    The review application

    The first RRT

16. The applicant sought review of the delegate’s decision. A copy of the decision was provided by the applicant to the Tribunal for the purposes of the review and the applicant is taken to be on notice of the delegate’s findings and reasons.

17. The applicant appeared before the then Refugee Review Tribunal (the first RRT) to give evidence and present arguments at a hearing held on 15 May 2012 (the first hearing).

18. The first RRT affirmed the delegate’s decision on 17 May 2012 and the applicant sought review of the first Tribunal’s decision by the then Federal Magistrates Court. On 21 November 2012 the Federal Magistrates Court set aside the decision and remitted the matter to the RRT by consent. The jurisdictional error found by the Court related to the first Tribunal’s failure to consider the issue of state protection under s.36(2B)(b) of the Act.

    The second RRT

19. The applicant appeared before a differently constituted RRT (the second RRT) to give evidence and present arguments at hearing held on 29 August 2013 (the second RRT hearing). The second RRT affirmed the decision under review on 14 February 2014. The applicant sought review of the second RRT’s decision.

20. The Federal Circuit Court dismissed the application for judicial review and the applicant appealed that decision to the Federal Court of Australia. On 2 February 2017, the Court set aside the decision of the Federal Circuit Court and remitted the matter to the Tribunal to be determined according to law. The Court found that the second RRT had failed to consider the applicant’s claim to fear harm because of his membership of a particular social group.

    The AAT

21. The applicant appeared before the present Administrative Appeals Tribunal (the Tribunal) to give oral evidence and present arguments at a hearing held on 15 August 2017 (the AAT hearing). The applicant was assisted by an interpreter in the Nepali and English languages.

22. The applicant was represented in relation to the review by his registered migration agent. The applicant’s representative did not attend the hearing.

23. In a submission, dated 8 August 2017, the applicant’s representative submitted that the applicant was previously targeted by the Maoists and the YCL. The applicant continues to fear being targeted again. Maoists have now split into various factions, including the Communist Party of Nepal Unity Centre led by Prachanda; the Communist Party of Nepal (Maoist) Baidhya group; the Communist Party of Nepal (Maoist) Chand group; and Naya Shakti Party led by Dr Baburam Bhattarai. The ‘cadres’ of these various factions were previously members of the YCL and they are dangerous.

24. The applicant is a member of [Political party 1], a pro-monarchy organisation. Currently, there is no strong party representing those who support the monarchy. The only registered pro- monarchy political organisation is the Rastriya Prajatantra Party (RPP) which has recently split into two factions. As a supporter of the monarchy, the applicant fears for his life and that he would be unable to live ‘peacefully’. He also fears being targeted again for extortion by ‘the party cadres under the name of political donations’.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, 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.

26. 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 Convention.

27. Australia is a party to the 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.

28. 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’).

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

    Analysis, findings and reasons

30. The Tribunal had significant concerns in relation to some key aspects of the applicant’s claims. These concerns arose as a result of various inconsistencies in and the unpersuasive nature of his evidence regarding these claims throughout the process, as detailed below. In the following paragraphs, any reference to Maoists is intended to include YCL.

31. Firstly, the applicant provided inconsistent and unpersuasive evidence in relation to his family members, including their circumstances and past experiences.

32. At the AAT hearing, the applicant was asked whether his father was working. He stated that his father owns and runs a [business] in [District 2]. His mother works in the same [business], assisting his father. When asked how long his father has owned and operated the [business], he said he did not know because, until recently, he had not been in contact with his parents since early 2016. When asked if his family were involved in running any business other than [this business], he said he did not have any information about this matter.

33. In relation to contact with his family, the applicant told the Tribunal at the AAT hearing that, following his departure from Nepal in 2010, he did not have contact with his parents and siblings as he did not want to jeopardise their safety, as well as his own. He said he had resumed contact with his parents only 18 months ago. When pressed for further clarification, he said between 2010 and early 2016 he never called his parents. His parents, however, tried to call him during ‘festivals’, but he did not answer the telephone. He added that, since resuming contact with his parents, they don’t want to speak much and their conversations are confined to enquiries about each other’s wellbeing. He said this was due to Maoists being divided and watching his parents. The applicant further stated that he has no contact with his [siblings]. They are worried that if they were to establish contact with him, their safety would be at risk. He stated that he has no information in relation to his siblings’ whereabouts and his parents tell him to worry about himself.

34. The applicant’s evidence at the AAT hearing, however, contrasted sharply with the evidence he had provided at the second RRT hearing. At that hearing, he gave evidence to the effect that his father was not working because he [has a medical condition]. His father had not worked since 1998. He stated that his mother and [a sibling], however, continue to run a [business] in [District 2] to support the family financially and that they have operated this business from 2005. When his evidence at the second RRT hearing was put to him at the AAT hearing, he stated that he provided all the information he had heard from ‘outsiders’, including uncles and cousins, at that time and that, at the AAT hearing, he had presented what he had heard from his parents. The Tribunal finds the applicant’s explanations disingenuous and unpersuasive. The applicant had provided the second RRT with a certain level of detail in relation to his parents’ circumstances, suggesting actual or personal knowledge. His evidence did not indicate that he was unaware of his parents’ circumstances due to lack of contact or that his information had been sourced through others. If the applicant was not in contact with his parents at the time he provided oral evidence at the second RRT hearing, the Tribunal considers it reasonable to expect him to have disclosed this information, at least tentatively, in his evidence to the second RRT. The Tribunal also considers it reasonable to expect him to have disclosed to the second RRT, at least tentatively, that his information in relation to the [business] run by his mother and sister had been provided to him by ‘outsiders’. The inconsistencies in the applicant’s evidence cast serious doubt on his credibility and the credibility of his evidence.

35. The Tribunal’s concerns are exacerbated by the unpersuasive nature of the applicant’s reasons for not making any contact with his family between 2010 and 2016. At the AAT hearing, the applicant stated that he did not contact his family because he was fearful for his parents’ safety. He was concerned that Maoists might target his family because of him. When pressed as to why this would happen if he contacted his parents from Australia, he           said he was scared that if he contacted his parents, Maoists would find out. When it was put to the applicant that, according to his own evidence, his uncle had been in contact with his parents from [Country 1], he said he was worried that something might happen to him (the applicant). When the Tribunal asked him why anything would happen to him given the fact that he is in Australia, he said he was sacred that Maoists would find out about him and target his parents. The applicant’s evidence, however, made little persuasive sense to the Tribunal. Earlier in the course of the hearing, the applicant stated that he had heard that Maoists were watching his parents to determine his whereabouts. If this was the case and if Maoists had any interest in the applicant, it is reasonable to expect the Maoists to have approached his parents to enquire about the applicant. After all, according to the applicant, his parents had resided in [District 2] since 2004. More importantly, the applicant’s evidence provided no clarity as to how any form of communication with his parents across a multitude of communication tools available, would have put him or his parents at risk. In fact, it would be reasonable to assume that, if the applicant was worried about the safety of his parents and his own safety, he would have made some effort to establish some form of direct contact with his parents between 2010 and 2016. The Tribunal does not accept the applicant’s evidence in this regard, which it finds far-fetched, unpersuasive and unreliable.

36. Furthermore, at the AAT hearing, the applicant was asked if any member of his family had been subjected to harm in Nepal. He said nothing happened to his parents because they are old and Maoists don’t do anything to old people. The applicant, however, stated that he had ‘heard’ that ‘they’ did ‘something’ with his [sibling]. When asked about the approximate date, he said he did not know. He said he had only heard about this from his uncle, who resides in [Country 1]and that his uncle did not want to talk to him. When asked what had happened to his [sibling], he said he did not know. He stated that they had subjected his [sibling] to the same type of treatment he was subjected to in Nepal. He added that perhaps they did not want his [sibling] to stay at home or the Maoists had attacked him as well. When asked if his [sibling] was involved in politics, he said he was not ‘officially’ aware, but when they were kids his [sibling] supported Nepali Congress.

37. The applicant’s evidence to the Tribunal was not consistent with his evidence to the second RRT. At his second RRT hearing, the applicant had asserted with certainty that his parents and siblings all lived together in Nepal, but his [sibling], who supported the Nepali Congress party, had been taken away by the YCL two months prior to the hearing and has not been heard from since that time. The applicant did not claim that he had not been in contact with his immediate family members or that the news about his [sibling] had been conveyed to him by his uncle in [Country 1]. This information was put to the applicant at the AAT hearing. He responded that, during that time, whatever he had heard from his uncle he had disclosed to the RRT. The Tribunal finds the applicant’s evidence improvised, unpersuasive and lacking in credibility. At the AAT hearing the applicant did not refer to the claimed abduction of his [sibling] in 2013 until he was prompted. The Tribunal is unable to reconcile the applicant’s evidence to the second RRT with the evidence he provided at the most recent hearing. The Tribunal is of the view that the applicant’s claims that his [sibling] was abducted were inventions at the time of his second RRT hearing, designed to strengthen his case for a protection visa. The Tribunal does not accept that the applicant’s [sibling] was abducted, disappeared, or harmed in any way by Maoists or anyone else as claimed by the applicant. The Tribunal does not accept any of the applicant’s evidence regarding his contact with his family and his family’s circumstances in Nepal.

1. Secondly, the applicant provided inconsistent and unpersuasive evidence in relation to his past experiences in Nepal.

2. According to the delegate’s decision record, the applicant had stated at the interview that, after moving to Kathmandu, he had received threatening phone calls and letters. In his oral evidence to the RRT, the applicant did not refer to these threats. At the AAT hearing, the applicant was provided with a number of opportunities to put forward his claims of harm. However, other than in connection with his claimed abduction in 2010, the applicant made  no references to any threats by Maoists after relocating to Kathmandu. At the AAT hearing, the applicant was asked why nothing had happened between 2004 and 2010. He said he did not know and he could not ask them. However, when he was reminded of his evidence to the Department and asked to explain the inconsistencies in his evidence, he responded that he was not physically harmed between 2004 and 2010 but he received telephone threats.  He added that his uncle had told him that the Maoists are after him. When the Tribunal pointed out that he had stated earlier that his uncle resided in [Country 1], he said his uncle must have contacted his family. When asked how the Maoists had obtained his phone number, he said he did not know. The applicant did not offer a satisfactory explanation for the inconsistencies in his evidence. At the AAT hearing, despite being provided with ample opportunity, he did not refer to any telephone threats by Maoists following his relocation to Kathmandu until he was asked to explain his discrepant evidence. The applicant’s evidence and explanations cast doubt on his credibility and the credibility of his claims.

3. Furthermore, at the AAT hearing, the applicant stated that he was beaten by Maoists when he was abducted in 2010. Similarly, at the second RRT hearing, the applicant stated that he was beaten by Maoists in 2010. According to the delegate’s decision record, however, the applicant had stated at the interview that he was not significantly harmed during the period he was abducted by Maoists in 2010. The applicant also made no mention of being physically harmed in 2010 in the statement submitted in support of his application for a protection visa. The inconsistencies in the applicant’s evidence were discussed with him at the AAT hearing. He responded that during the interview he could not recall many things due to ‘trauma’ and at the RRT hearing he also could not express himself due to ‘tension’. The applicant has provided no persuasive evidence to support his claim that he had been unable to disclose claims of harm at the interview or before the RRT due to ‘trauma’ or ‘tension’. Indeed, the applicant had been able to put forward reasonably detailed accounts of other past experiences. The shifts and changes in the applicant’s evidence raise serious doubts in relation to the veracity of his claims.

4. The Tribunal’s doubts are consolidated by the applicant’s unpersuasive evidence as to why the Maoists had continued to target him for many years and across different locations in Nepal. The applicant did not have a political profile and did not participate in political activities. Whilst he claimed to have been a supporter of the monarchy and a member of [Political party 1], he repeatedly stated that he disliked politics and wanted to carry out ‘[a certain] work’. In his statement he stated that [Political party 1] was not a political party and the work he had carried out for the organisation was [of a certain] nature. At the second RRT hearing, the applicant was asked why the Maoists had shown an interest in him for so many years. He responded that he was under the impression that they were not looking for him, but they were. They knew that his father was politically active in the village and for that reason they looked for him. They wanted the applicant to get involved in their organisation. He refused to join them and they came after him. Similarly, at the AAT hearing, when asked why the Maoists had shown such persistent interest in him, he stated that he was a supporter of the King and he had refused to join the Maoists. The Tribunal, however, found these explanations unconvincing. According to his own evidence, the applicant’s father enjoyed a higher profile as a Monarchist. The applicant did not claim that, following his relocation from their home village, his father was targeted or harmed by the Maoists. At the second RRT hearing he claimed that his father had not been targeted because he [had a medical condition], which had also led to his inability to work. As noted above, the applicant provided inconsistent evidence at the AAT hearing, stating that his father owns and operates a [business] in Nepal. When asked why his parents had not been harmed, he said they are old and Maoists don’t harm old people. The Tribunal has rejected the applicant’s claims in relation to his family’s circumstances. The Tribunal has also rejected the applicant’s claims that his [sibling] had suffered any harm in Nepal. The applicant has provided no persuasive reason as to why, as a supporter of the monarchy, he was the only member of the family to have been singled out for harm by Maoists after the family relocated away from their village in 2003. Whist the applicant  claimed that the Maoists had targeted him because he had refused to join their party, he did not claim that his [sibling] had also been targeted for the same reason at that time. Nor did he provide a persuasive reason as to why the Maoists had monitored, pursued, threatened or targeted the applicant in Kathmandu between in 2004 and 2010 to recruit him or to harm him due to his low level support for monarchy. The Tribunal considers it highly implausible that the Maoists had spent so much time and resources over a period of many years across both [District 1] and Kathmandu to recruit or harm the applicant. The Tribunal, therefore, does not accept that the applicant had received threatening phone calls and letters from Maoists while residing in Kathmandu between 2004 and 2010. The Tribunal does not accept that the applicant was monitored, pursued, wanted or targeted in any way by Maoists in Kathmandu. The Tribunal does not accept that the applicant was abducted, mistreated, threatened and asked to pay a ransom by Maoists in 2010.

5. Thirdly, the applicant arrived in Australia [in] May 2010. However, he did not apply for a protection visa until [July] 2011. In his evidence to the Department, the applicant stated  that he had not applied for a protection visa earlier because he did not know about protection visas, his English was poor and he was fearful approaching Australian authorities because he had arrived on a false passport. At the second RRT hearing, he stated that he came to   know about protection visas nine months after he came to Australia. He talked to his friends and some suggested this as an option. He also stated that he did not know where to go to apply for a protection visa, he did not know how to apply for a visa and he was fearful of being sent back because he had arrived on a false passport. At the AAT hearing, he also stated that he did not know about protection visas when he first arrived here. The Tribunal has considered the applicant’s explanations and appreciates that he might have been worried about approaching the Australian authorities due to having entered Australia on a false passport. However, in view of the seriousness of his claims, the Tribunal does not accept that the reasons provided by the applicant satisfactorily explain a delay of 14 months in applying for a protection visa. The applicant’s significant delay in lodging his protection visa application, casts doubt on the credibility of his claims and the genuineness of his fear of persecution.

6. For all the above reasons, the Tribunal finds the applicant not to be a credible, truthful or reliable witness. The totality of his evidence shows a propensity to fabricate claims and tailor and shift his evidence in a manner which achieves his own purpose.

7. The Tribunal, therefore, does not accept that the applicant was threatened, harassed or harmed by Maoists or anyone else in Nepal. The Tribunal does not accept that the applicant was assaulted and/or mistreated by Maoists or anyone else in 2004. The Tribunal does not accept that the applicant had received threatening phone calls and letters from Maoists while residing in Kathmandu between 2004 and 2010. The Tribunal does not accept that the applicant was monitored, pursued, threatened or targeted in any way by Maoists in Kathmandu. The Tribunal does not accept that the applicant was abducted, mistreated, threatened and asked to pay a ransom by Maoists in 2010. The Tribunal does not accept that the Maoists had approached or coerced the applicant to join their ranks or become involved in their activities. The Tribunal does not accept that the applicant’s father was harassed, threatened, humiliated or harmed by Maoists in Nepal. The Tribunal does not accept that the applicant’s father [developed a medical condition] as a result of any encounter with Maoists or as a consequence of any experiences connected with any political opinion he might have held. The Tribunal does not accept that the applicant’s [sibling] was threatened, abducted or harmed in anyway by Maoists. The Tribunal does not accept that the applicant was wanted by or was of any ongoing interest to the Maoists in Nepal. The Tribunal does not accept that Maoists were looking for the applicant in [District 2], Kathmandu or anywhere else because of his father’s profile or his own profile. The Tribunal does not accept that Maoists were looking for the applicant in [District 2], Kathmandu or anywhere else because they wanted to demand money from him or because he had refused to give them money. The Tribunal does not accept that Maoists have any interest in the applicant or any member of the applicant’s family. The Tribunal does not accept that Maoists have monitored or are monitoring the applicant’s family or any communication they might have with the applicant for the reasons he has provided, including his expressed or imputed political opinion or membership of the particular social group of his family. The Tribunal does not accept that the applicant had approached the authorities in order to seek assistance. The Tribunal does not accept the applicant’s claims before the second RRT that he has been accused of being a spy for the Maoists by the authorities in Nepal.

8. The Tribunal has considered the photographs submitted by the applicant in support of his application for a protection visa. In his evidence he claimed that the photographs depicted his burnt house. The photographs themselves do not establish when they were taken or if they depict a property associated with the applicant. In view of the Tribunal’s findings in relation to the applicant’s credibility, the Tribunal does not attach any weight to these photographs.

9. The Tribunal, however, is prepared to accept that the applicant harboured pro-monarchy views. The Tribunal also accepts that the applicant was a member of [Political party 1] and carried out [a certain] work for that organisation for a period of time prior to his departure from Nepal. The Tribunal accepts that he was not involved in any form of political activity and continues to dislike politics.

10. As discussed with the applicant at the AAT hearing, the country information before the Tribunal does not suggest that pro-monarchy supporters are targeted or are subjected to harm by Maoists. The sources consulted indicate that there have been no reports of violence perpetrated by Maoists or others against conservative pro-monarchy supporters since 2011.

11. According to the South Asia Terrorism Portal’s Nepal Assessment 2015:

    The environment of peace that had been established in Nepal in 2013 survived, despite challenges, through 2014, with not a single insurgency-related fatality on record. … [I]t was in 2013 that the Himalayan Nation did not record a single insurgency-related fatality during the course of a year, for the first time, and remained completely free of insurgency-related violence. At its peak in 2002, the insurgency saw 4,896 persons, including 3,992 Maoists, 666 Security Force (SF) personnel and 238 civilians, killed in a single year.[1]

    [1] South Asia Terrorism Portal, Nepal Assessment 2015, at [1], <CIXEC96CF1246>, <>

    In its 2016 Nepal Country Information Report, DFAT stated:

    3.28    … Prior to the 2013 elections, the political environment suffered instability, including some violence by supporters linked to the main Maoist party on members of other parties, and on people who allegedly informed on the Maoists during the civil war. Supporters linked to the other leading parties were also accused of attacking supporters of the Maoists during 2013.

    3.29 At the time of publication, the situation has significantly changed. Nepal’s lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. DFAT assesses that while violence has occurred in the aftermath of the release of the new Constitution and Maoist/and disillusioned splinter groups continue to threaten a return to bandhs and or violence, the overall risk is low.[2]

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

12. In response, the applicant commented that, based on the information he has gathered, Maoists are divided. He is a strong monarchist and he might still be attacked. The applicant did not submit any other information to support his contentions. The Tribunal has found that the applicant was a low-level supporter of the monarchy. He has not been involved in political activities of any kind in Nepal or Australia. Other than his involvement with [Political party 1], he did not claim to have expressed his pro-monarchist views publicly. There was no information before the Tribunal to suggest members of [Political party 1]  have been subjected to harm or harassment by anyone in Nepal. The Tribunal has considered the applicant’s claims in relation to the divisions amongst Maoists. However, on the basis of the evidence before it, the Tribunal finds that there is no real chance that the applicant will face serious harm in Nepal for the reason of his expressed or imputed political opinion, including his pro- monarchy views or his association with [Political party 1]. The Tribunal finds that there is no real risk that the applicant will face significant harm for any reason arising from his political views or association with [Political party 1].

13. The applicant has claimed that he fears being asked for donations from the Maoists and that ‘foreign returned people’ are more vulnerable to being targeted by the Maoists. The Tribunal discussed with the applicant at the hearing the relevant country information. According to DFAT:

    3.64 There are widespread reports of threats against businesses throughout Nepal. Threats such as coercion, extortion and forced donations, as well as kidnappings or coercion to join political parties, have been identified as the most common forms of mistreatment. However, credible sources told DFAT that the most common occurrence – forced donation – was generally seen as part of ‘doing business’ in Nepal. The practice reflects the intensely political nature of Nepali society and is confronted regularly by business persons. It also reflects the inability of Nepali political parties to formally and directly raise funds to support their activities. On this basis, DFAT assesses that while businesses themselves may be targeted, individual members of the private sector are ordinarily free from harassment and intimidation.[3]

    [3] Ibid.

14. In a research response, the Research Directorate, Immigration and Refugee Board of Canada stated:

    In correspondence with the Research Directorate, a visiting scholar at the University of Wyoming who is also the Nepal representative for the Asia Foundation, stated that instances of kidnapping and extortion by Maoist groups “are increasingly rare occurrences from a political party perspective” and are "not common any longer".

    Similarly, in correspondence with the Research Directorate, a Nepal-based representative of Creative International Forum (CIF), an organization that protects human rights and promotes peace and social justice in Nepal through capacity building and research (Insight on Conflict July 2015), stated that since the peace agreement was signed between the government and the Maoists, “such instances have gradually come down”. The same source indicated that “organized human rights violations/abuses are not taking place in Nepal due to the Maoist party,” although there may be involvement in some criminal activities by “former, frustrated combatants in certain parts of Nepal”.

    …

    The visiting scholar stated that, to his knowledge, targets for extortion are those with money, and targets are not identified as NC or monarchist. According to the Saferworld representative, Biplav and Baidya factions have "mainly target[ed] the business community and some NGOs, mainly outside of Kathmandu in the Terai area

    … and in some districts in the Western region of Nepal" for extortion. In correspondence with the Research Directorate, the Nepal researcher for the Asian Human Rights Commission (AHRC), an independent Hong Kong-based NGO "which seeks to promote greater awareness and realization of human rights in the Asian region", stated that “[t]here is a trend of collecting donations by different political parties including the Maoists and its allies. But they collect it largely from the business tycoons,” who often give donations "voluntarily," in exchange for political benefits.[4] (references omitted)

    [4] Immigration and Refugee Board of Canada, Nepal: Instances of kidnapping and extortion by Maoist groups and affiliated student groups, including targeting of the Nepal Congress (NC) party and pro- monarchists; instances of land capture by Maoist groups; availability and effectiveness of state protection to victims (January 2015-November 2015), November 2015.

15. The applicant commented that he came here on a false passport, making matters complicated. He will be asked to pay donations and if he refuses to pay, he will be killed. He added that what is happening on the ground is not necessarily reported. The Tribunal put to him that it would consider any information he wished to provide in support of his claims. He responded that Nepal is divided and the country is not safe.

16. The Tribunal has taken the applicant’s comments into account. In the present case, the applicant has not claimed that he will be a businessman if he were to return to Nepal. As noted at the hearing, many Nepalis travel abroad and return to Nepal. The Tribunal considers it speculative to suggest that he would face extortion because of his perceived wealth as a ‘foreign returned’ Nepali. The Tribunal has been unable to find any persuasive evidence in the sources consulted to suggest that returnees from Australia to Nepal are targeted for donations or extortion because of their perceived wealth. Indeed, DFAT’s Nepal report indicates that Nepali returnees do not appear to face any specific problems. Without more, the Tribunal does not accept that, in this context or any other, the applicant’s departure from Nepal on a false passport would make the applicant a target for donations, extortion or any other harm. The Tribunal does not accept that there is a real chance or a real risk that he will be subjected to extortion or will be asked for donations for this reason.

17. On the basis of the evidence before it, the Tribunal does not accept that there is a real chance or a real risk that the applicant will be identified as a businessman if he were to return to Nepal. The Tribunal does not accept that there is a real chance or a real risk that he will be subjected to extortion or will be asked for donations for this reason. The Tribunal does not accept that there is a real chance or a real risk that he will be targeted by Maoists for extortion or donations if he returns to Nepal. The Tribunal does not accept there is a real chance that the applicant will be targeted for extortion amounting to serious harm because of his expressed or imputed political opinion; or membership of any particular social group, including his family, businessmen in Nepal, perceived wealthy persons in Nepal, returnee from Australia, wealthy returnee from Australia or any other particular social group apparent on the face of the evidence. The Tribunal does not accept that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk that he would be subjected to significant harm because he would be identified as a businessman, because he would be perceived as a wealthy returnee from Australia and/or because of the length of time he has been in Australia. The Tribunal does not accept that there is a real chance or a real risk that he will be targeted by Maoists or any one in Nepal for the reason of his political opinion, his membership of any particular social group or a combination of these reasons in Nepal.

1. After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Convention. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

2. 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). After considering the applicant’s claims, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty.

3. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

   DECISION

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

Shahyar Roushan
Senior Member