1705111 (Refugee)

[2021] AATA 4143

1705111 (Refugee) [2021] AATA 4143 (5 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1705111

COUNTRY OF REFERENCE:                   Nepal

MEMBER:David McCulloch

DATE:5 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 05 October 2021 at 9:20am

CATCHWORDS

REFUGEE – protection visa – Nepal – complementary protection criterion – political opinion – Nepal Communist Party UML – abduction by the Maoists – ongoing health treatment – financial hardship – credibility issues – state protection – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
SZGIZ v MIAC (2013) 212 FCR 235
Yao-Jing Li v MIMA (1997) 74 FCR 275

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 dependants.

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).

2. The applicant who claims to be a citizen of Nepal applied for the visa on 23 April 2013 and the delegate refused to grant the visa on 24 February 2017. Set out below is the full migration and visa application history of the applicant including the fact that the applicant had previously lodged an application for a protection visa on 11 March 2011.

3. The current application is allowed as a result of the Federal Court decision of SZGIZ v MIAC (2013) 212 FCR 235, dated 3 July 2013. This allows a further protection visa application to be made before 28 May 2014 under the complementary protection criterion in a situation where the person’s prior protection visa application was made and refused prior to the commencement of the complementary protection criterion on 24 March 2012. This means that the Refugee Convention aspect of the applicant’s claims has been determined and the matter before the Tribunal relates only to the complementary protection criterion (s.36(2)(aa) of the Act and see below).

4. The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The Tribunal hearing occurred on 15 September 2021 at 9.30am. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages, who also attended by video.

5. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. Issues raised by the applicant after the hearing about the fact that the hearing was not held face to face are addressed later in this decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

9. 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).

10. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

11. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

12. The applicant’s visa history can be summarised as follows from the delegate’s decision:

Date	Event Details
24/11/2008	[Student] visa granted
[January 2009]	Applicant arrived in Australia
11/03/2011	XA-866 (Permanent Protection) visa lodged
15/03/2011	[Student] visa ceased
07/06/2011	XA-866 (Permanent Protection) visa refused
22/06/2011	RRT review commenced
20/03/2012	RRT review affirmed
[April 2012]	Judicial Review commenced
[November 2012]	Judicial Review outcome
[December 2012]	Ministerial Intervention – application lodged
[March 2013]	Ministerial Intervention – application not considered
23/04/2013	XA-866 (Permanent Protection) visa lodged
[May 2013]	Judicial Review and Merits Review commenced
24/02/2017	XA-866 (Permanent Protection) visa refused by Department
17/03/2017	AAT Application for Review lodged

1. The following information is apparent from the application for protection forms. The applicant was born on [date] and is of Magar ethnicity. The applicant speaks, reads and writes Nepali and English. The applicant has a father, mother and [specified family members] who all reside in Nepal. The applicant has never been married, nor in a de facto relationship. Before arrival in Australia, the applicant resided in [District 1], Kathmandu, Nepal. The applicant attended [School 1] to obtain her [qualification] in Nepal [between specified years]. The applicant has never been employed. The applicant has never travelled to another country, nor left Australia since arrival. The applicant discloses no convictions.

2. The applicant provided a written statement to the Department in 2014 setting out her claims for protection, as follows (not corrected for spelling or grammar):

   My name is [name]. I am a citizen of Nepal. I was born on [date] in [Town 1], [District 1], Nepal. I was born in a Hindu family and I follow Hindu Religion as my faith. I have parents and [specified members] in my family. I am never married single woman. I belong to an ethnic group of Magar. I was unemployed prior to coming to Australia. I am the youngest child in the family and I grew up in the village and I was educated in my village school. My parents are farmers and I helped them in their agricultural after my school. I completed my [qualification] from [School 1], [Town 1], [District 1] in [year].

   I had developed an interest in the politics during my schooling. My aunt had actively involved in the politics. Her name is [Aunt A]. She had encouraged me to do politics. I was abducted by the Maoists from school on [a day in] August 2003. it was daytime and it was sunny day. I wept bitterly as I was threatened that they would kill me. I was forced to attend Maoist education classes. I was encouraged to report back to the Maoists on the teachers' activities and attitudes. I was taught how to behave, how to place mines, do sentry duty in order to join the People's army.

   In our area, the Maoists have used education as a weapon, with model schools where they would teach the virtues of guerilla war and communism and I was kept on the Maoist custody until [a day in] August 2003 as I had been working with the student section after I was elected as [Official A] of all Nepal national freedom student union [in] May 2003 while I had been studying in [School 1], [Town 1], [District 1].

   I was involved with Communist Party of Nepal (Unified Marxist—Leninist) due to the influence of my aunt, [Aunt A] who is currently a [specified official] in Nepal. She became a candidate of Nepal Communist Party UML in [District 1] District when the constitutional assembly elections were held in April 2008. She did not win the election. The Maoists won the election held in 2008 in my district. I helped my aunt in her election campaign. I am a member of Communist party of Nepal (Unified Marxist- Leninist). I was abused by the Maoists due to my political opinion and my denial to join and support the Maoist young communist league.

   I denied supporting and joining the Maoists, consequently on [a day in] December 2008, a group of Maoists came to my house and they threatened that they would kidnap and kill me if I defied them again. I had no option but I pretended that I would agree to disown my membership of CPN-UML and would support and join the Maoists. I declined to disown my membership but I continued supporting the CPN — UML secretly despite the Maoists' threats. I reported it to my party office and district police office but I did not see any indication of their willingness to protect me from the harm of the Maoists.

   I felt very unsecure but I couldn't conceal my political opinion as I am devoted to my party and I did not want my political right be deprived by the Maoists. It became impossible for me to live safely in Nepal so I decided to flee Nepal for my safety. I went to Kathmandu where I stayed in my [Relative A’s] house. I did not travel much outside the house until I fled my country after December 2008. My [Relative A] contacted the agent through his friend and I met the agent with my [Relative A] in a hotel in [a location in] Kathmandu. My [Relative A] requested him to help me depart Nepal for Australia and he paid the agent on my behalf.

   My [Relative A] paid the agent in the amount of NC Rs.8,00000.00 in a hotel room and everything including a false marriage certificate was arranged by the agent. My [Relative A] supported me financially, I did not know the student who I came with. I had never met the student before. The agent introduced the student to me only at the time of medical exams in connection with the visa process in Kathmandu. I came to Australia [in] January 2009. Approximately 5 months after my arrival in Australia, I began to suffer bleeding from the nose. In 2009, I was diagnosed with tuberculosis at [Health Service 1]. After my illness I lost my energy about my future. I took medication for nearly 12 months after was diagnosed with tuberculosis by [Doctor A], consultant physician and haematologist. I finished my treatment in 2010. It took me nearly one year.

   As soon as tuberculosis was cured, I was diagnosed with ITP. It was a great shock to me to discover that I had a chronic ITP. It absolutely shocked me. I cried a lot. Not knowing what was going to happen to me, or how rapidly the disease would progress, I was at a loose end. [Doctor A], haematologist prescribed me the medication for the treatment. As the prescribed medicines are not available at chemists, I always had to visit [Health Service 1] for the injection be given. I was advised that the treatment had to be continued for ever. The prescribed medicine was not working well and [Doctor A], haematologist advised me to have surgery on my stomach to remove spleen.

   I was referred to [Doctor B], at [Hospital 1] for the surgery. As I did not have the money to cover the hospital fees including my treatment fee I borrowed the money from my sister, [named] and friends. Eventually, I had surgery on my stomach [in] November 2012 at [Hospital 1] and I was discharged from the hospital after 4 days. After surgery I have been visiting and making appointments with GPs and specialists in Sydney. After discharge from the hospital, I have been concentrating on my health and gaining a normal life. I hear my disease has no cure but there can be relief if more is done. I am told that there is absolutely no treatment or medicine available for my illness in Nepal. If I was in Nepal, I would have probably died due to lack of treatment. I am a chronic ITP patient. Although I see a cloud hanging over my future, I am hopeful in the present because I am here in Australia. I am impressed by the health service providers and health system of Australia. Now my health condition has also affected me in my circumstances.

   I always worry about my health and financial circumstances. I am very depressed. I am very frustrated about my health and financial problems. I have not paid the money which I had borrowed from friends for my medical expenses. Now I just hope that my health will be improved. I forget many things due to constant worries related to my health and financial circumstances. I wish to stay in Australia to save my life. I will die due to lack of treatment for my disease if I go hack to Nepal. I will be unemployed due to my health and I will suffer severe financial hardship. I am unable to go back to Nepal due to my chronic medical condition and my political opinion. There is no health service, protection and justice for me in Nepal. I have a grave fear of returning to Nepal because Maoists are violent. My political opponents including Maoists will harm me. Maoists are everywhere in Nepal.

   I cannot go to India because there is no safe place at all for women in India. Females are trafficked from Nepal and sold into brothels in India by criminals. I am aware of it by watching television and reading news paper. So I have never thought of travelling to India and I will never think of it in my whole life. I will not find a job, I will be discriminated and hatred in the Nepalese society because I will be viewed as a woman with bad disease. As I have a chronic disease, I will be a social stigma. I hold a real fear of severe financial hardship and no treatment for my health. It is impossible for me to go to Nepal and live with good health. Therefore, I request the Australian Government to be given a protection visa. Thank you.

3. On 10 May 2011 the applicant provided the Department with a translation of a statement made by her in relation to her first protection visa application which also indicates that the applicant was elected as [Official A] of the Nepal National Freedom Student Union (NNFSU) [in] May 2003 and involved with the Communist Party of Nepal (Unified Marxist– Leninist) (NCP-UML). The statement also indicates that the applicant was a member of the Democratic National Youth Union (DNYU), Nepal.

4. The applicant had provided to the Department in relation to her 2011 protection visa application the following supporting documents:

   ·A translated letter from [School 1], which states that during the period of war, school teachers, staff and students including the applicant were abducted by the Maoists [between dates in] August 2003.

   ·A translated letter from [Aunt A] of the NCP-UML, dated [in] May 2011, which states that the applicant was ‘affected with’ the strike of the Maoist People’s war and that she could not stay in Nepal.

   ·A translated letter from the Principal of [School 1], dated 28 February 2011, which states that the applicant was elected [Official A] of the NNFSU [in] May 2003 and was abducted by the People’s Liberation Army due to her membership with the DNYU of NCP-UML.

   ·A translated membership card of the DNYU valid from [July] 2003 to [July] 2004.

   ·A translated letter from the [Official B] of NCP-UML, dated [in] March 2011, which states that the applicant had been working for the NNFSU and Youth Association Nepal of NCP-UML during her study and her youth. The letter states that the applicant was abducted by the People’s Liberation Army of NCP Maoist and was released through the efforts of NCP-UML [District 1] Committee. The letter also states that the applicant had been displaced because she could not live in her village as she is a victim of war.

5. On the Departmental file are documents relating to medical treatment having been received by the applicant in 2012 and 2013. This includes evidence of the applicant undergoing a laparoscopic splenectomy [in] November 2012.

6. Provided to the Department is a report from [Doctor A], Physician and Haematologist dated 17 January 2017 indicating that the applicant has a diagnosis of chronic ITP (Idiopathic Thrombocytopenic Purpura). The condition is stated as being in remission. There is also an indication that the applicant has a history of tuberculosis with therapy commenced in November 2009.

7. The report indicates that the applicant does not require any specific therapy at present as she has been quite well and her platelet count has been normalised over the years after her splenectomy. She does not require any other therapy. It is reported that the applicant has from 2012 been in remission from her condition and has had no further episodes.

8. The Tribunal wrote to the applicant on 21 July 2021 requesting information as follows:

   The Tribunal notes that you have claimed that you are owed protection in Australia as a result of the treatment that you would receive in Nepal as a result of your medical condition, ITP (Idiopathic Thrombocytopenic Purpura). The Tribunal also notes that you have previously been diagnosed with tuberculosis.

   The Tribunal notes that you had provided to the Department a medical report dated 17 January 2017 indicating that your ITP is in in remission and that you do not require any other therapy.

   To the extent that you are maintaining claims that you face harm in Nepal as a result of your medical conditions, please provide a current report from your medical providers as to the current status, prognosis and treatment of your various medical conditions. The Tribunal also requests that you indicate whether you are continuing to rely on claims that you made as part of your 2011 protection visa application that you face harm in Nepal as a result of your previous political involvement in Nepal and harm suffered by Maoists.

   The Tribunal also requests that you outline to the Tribunal your work history in Australia, including current work undertaken.

1. The applicant provided the following statement in response (not corrected for spelling or grammar):

   My name is [name]. I was born on [date] in [Town 1], [District 1] Nepal. I am a citizen Of Nepal, arrived in Australia [in] January 2009 for my safety reasons.

   I refer the Member to all matters on my files previously brought to the attention of Department of Immigration and the Tribunal. So, I do not repeat them here but sincerely ask you to consider them as I continue rely on them for my fear of harm on return to Nepal.

   I worked for [Employer 1] as [an occupation 1] from 2009 to 2011. I was unemployed from 2012 to 2013 due to my illness. I worked for [Employer 2] as a part time [occupation 1] from 2013 to 2014. Again, I was unemployed from 2014 to 2015 due to my health condition. I worked for [Employer 3] as a part time [occupation 1] from 2015 to 2017. I was unemployed from 2018 to 2020. I have been working as [an occupation 1] since 2020 with [Employer 4].

   I am looking for peace of mind, sense of security, effective treatment to my health and certain future without fear of harm. It is only possible if I am allowed to stay here permanently in Australia. As a Nepalese woman with chronic health condition, I am sure I cannot find effective treatment to my health and no employer would give me a job and I will suffer financial hardship if I am forced to return to Nepal. I don't have enough money or source of my money to access funding for my treatment in Nepal. I will be dead due to lack of treatment in Nepal, and I also don't believe that health professionals would treat me well in Nepal. I am unable to return to Nepal due to my health and the security situation.

   I also fear harm in Nepal from my enemies including Maoists, members of other political parties. I want to live with a sense Of security, good health, and peace of mind. I want the remainder of my life to be peaceful and it is never possible for me in Nepal. I still hold my political view, but I am anti-Maoist. I have no trust in the police, court, or government Of Nepal at all because there is a lot Of corruption which means the police including people in political and judicial power are corrupt. I see there is a political instability in my country because political leaders are selfish and corrupt. Police take money from the conflicting groups and will turn a blind eye to their actions. I know I will also be a victim Of police action. I will continue to face harm everywhere in Nepal.

   I am unable to return to Nepal because Of several factors including my health condition. I must keep my follow-up visits with my doctor and continue to keep in contact with my health care team in relation to treatment. I now have peace of mind and sense of security because I believe I get effective treatment to my health.

   I have been personally observing the peace and political situation of Nepal and I conclude that the political situation in my war-torn country remains unstable and unpredictable.

2. The applicant also provided links to independent information concerning the current political and human rights situation in Nepal. These include in relation to rape cases in Nepal, the cycle of impunity for rape in Nepal, the coronavirus situation in Nepal, commentary as to the democracy in crisis, the dissolving of Parliament and women’s and human rights issues in Nepal.

3. In relation to medical issues, provided is a report relating to the applicant from [a pathology service]. The referring practitioner’s request is dated 22 July 2021. Tests required are listed as: ‘FBC, CRP, UEC, LFT, CA, PHOS, IRON STUDIES, URATE’. There are results provided of what appears to be a blood test but there is no explanation of the results.

4. The Tribunal wrote again to the applicant as follows:

   The Tribunal requested that you provide on 21 July 2021 a current report from your medical providers as to the current status, prognosis and treatment of your various medical conditions, particularly Idiopathic Thrombocytopenic Purpura (ITP).

   All you provided to the Tribunal was a recent pathology report, with the results unexplained.

   If the Tribunal is to be satisfied that you currently have any serious health condition and that you face harm in Nepal on the basis of that condition the Tribunal will require a recent detailed medical report from your medical provider(s) properly explaining your current conditions, treatment and prognosis.

5. No response was provided. A written submission provided by the applicant after the hearing, including information relevant to claims based on her health condition are addressed further below.

   Independent information

6. The 2019 DFAT report on Nepal provides the following information (underlining added):

   RECENT HISTORY

   2.1      Nepal was established as an independent monarchy in 1769 when Prithvi Narayan Shah, the ruler of the small principality of Gorkha, united 46 independent states to form the Gorkha Kingdom. Hereditary monarchs have ruled Nepal for most of its history.

   2.2      Between 1960 and 1990 a system of local governance known as panchayat was used throughout the country. A panchayat is a council of elders at the village level historically common across South Asia. In the Nepali system, representatives from local councils would be sent to increasingly larger panchayat up to the national level.

   2.3      In 1996 the Unified Communist Party of Nepal (Maoist) (UCPN-M) began a nationwide violent insurgency against the government leading to a ten-year civil war. Almost 18,000 people were killed and over 1,300 disappeared before a peace accord was struck in 2006 following an agreement between the Maoists and an alliance of seven Nepali political parties.

   2.4      In February 2005 the then-king assumed absolute power in a coup supported by the army. A people’s movement in April 2006 and a joint alliance of democratic parties and the Maoists forced the king to relinquish direct rule. Parliament subsequently agreed to abolish monarchical rule, and Nepal became a republic in 2008 with the election of the first Constituent Assembly. The Maoists formed the first government, which proved to be short-lived, resigning in May 2009. A coalition government was then formed until it, too, resigned in July 2010. In September 2011, Dr Baburam Bhattaerai of the UCPN-M party formed government with the Madhesi alliance from the Terai. Political stalemate and questions concerning Nepal’s federalist structure and how to accommodate ethnic and linguistic minorities led to the dissolution of the first Assembly in 2012.

   2.5      After repeated delays, elections for the second Constituent Assembly were held in November 2013. International observers described the elections as free and fair, with a voter turnout of 78 per cent despite threats of violence by a break-away Maoist group. The Nepali Congress (NC) and the Communist Party of Nepal (Unified Marxist-Leninist) or CPN (UML) were elected to govern Nepal under a coalition agreement that gave them an almost two-thirds majority in the Assembly. The UCPN-M, which had led the insurgency and had dominated the 2008 election, managed to secure only 80 of the 575 directly elected seats.

   2.6 An 85 per cent majority vote by Constituent Assembly lawmakers on 16 September 2015 approved a new Constitution which was subsequently promulgated on 20 September 2015. The new Constitution was agreed upon after considerable negotiation and delays. The political stalemate surrounding the development of a new constitution had ended in June 2015 when the four major political parties agreed to proceed with negotiations, focusing on the key points of federalism, the form of government and elections, and the judiciary. Under the new Constitution, Khadga Prasad Oli of the CPN-UML was elected Prime Minister in October 2015.

   2.7      On 25 April 2015 a 7.9 magnitude earthquake struck Nepal. The earthquake and its subsequent aftershocks killed an estimated 8,891 people and injured tens of thousands of people. Significant damage was incurred to national infrastructure, buildings and homes and reconstruction efforts continue several years after the disaster.

   2.8      A border blockade was imposed, notionally implemented by Madhesi communities but unofficially blamed on India, from September 2015 to February 2016. The blockade caused shortages of fuel and other commodities throughout Nepal, severely affecting its economy.

   2.9      Several changes of government, including realignment of coalitions, resulted in two further changes of Prime Minister before national elections were held over two phases in November and December 2017. These saw landslide results in favour of the Left Alliance comprised of the CPN-UML and the CPN-Maoist Centre parties. The two parties merged in early 2018 to form the Nepal Communist Party (NCP), which now holds a close to two-thirds majority in the Federal Parliament, led by Prime Minister KP Oli for his second term. The coming years will see Nepal’s complex transition to a new federalist system.[1]

   [1] DFAT, Country Information Report – Nepal, 1 March 2019, para [2.1]–[2.9].

   […]

   Health

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

   2.19      Health expenditure was 5.8 per cent of GDP in 2014 (the most recent available reliable data). The private share of total health expenditure was about 60 percent in 2016, most of which was derived from out-of-pocket payments from patients and their families. Free essential health services are available via primary health care centres and district hospitals. Under this system, no charges are levied for registration, outpatient, emergency and inpatient services, or for essential drugs. Use of public health facilities by lower caste, illiterate and marginalised people has increased since the introduction of the free essential services policy.

   2.20      Nepal’s health sector is challenged by the country’s widespread poverty, limited government funding and its remote and mountainous geography which hinders the development of appropriate health infrastructure and access to health services outside of the densely populated southern plains region. Health care services are generally considered inadequate by international standards; many hospitals do not have toilets, running water, soap or reliable electricity. Hospitals in Nepal tend to be located in urban areas and provide a much wider range of medical services than rural health centres, although the quality of health care provided in large urban centres such as Kathmandu is still variable. Patients may rely on family support to access medicines and nursing care. Specialist doctors are available, including in smaller local hospitals, however those requiring specialist treatment may need to travel to access that treatment and services are constrained in the context of limited facilities across the sector.

   2.21      According to the UNDP, average life expectancy at birth for is 69 years for males and 72.2 years for females. Disease prevalence tends to be higher in Nepal than in other South Asian countries, especially in rural areas. Malnutrition and poor sanitation are widespread, however access to improved water sources and sanitation have improved over the last two decades, including during the conflict period. The burden of infectious diseases, including bacterial diarrhoea, hepatitis A and E, typhoid fever, Japanese encephalitis, malaria, and dengue fever is high.

   2.22      Among infants, 19 per cent of deaths of children under 5 were related to premature birth and neonatal and maternal health problems in 2012, the most recent statistics available from the World Health Organisation. Access to health facilities for childbirth are limited and women may be isolated from homes and families during childbirth due to traditional beliefs (see Women).

   2.23      Violence against health care providers has increased throughout Nepal in recent years. Violence has included physical assault against doctors and health care providers and vandalism and property damage in hospitals. Many of these incidents have been attributed to the death of a patient, accusations of negligence, mismanagement and poor service quality on the part of health care professionals or providers. [2]

   [2] DFAT, Country Information Report – Nepal, 1 March 2019, para [2.18]–[2.23].

   […]

   POLITICAL OPINION (ACTUAL OR IMPUTED)

   3.38 All Nepali citizens 18 years and older are eligible to vote. Under the 2015 Constitution seats in the Federal Parliament are reserved for women through quotas, and substantial, proportional allocations made for Madhesis, Dalits, and other minority groups.

   3.39      Political affiliation, both at an organisational and individual level, is an important aspect of identity. This was a cause of instability during the conflict and in the years immediately following. Political youth wings, bandhs (strikes, see Private Sector/Business Community), demands for donations from local authorities and the private sector, and the obstruction of tender-bidding processes in line with political interests all contributed to this instability.

   3.40 A diverse and competitive array of political parties operates in Nepal, though the system has faced considerable instability in recent years. Unlike the 1990 constitution, the 2015 Constitution has no limitation on parties formed along ethnic lines leading to many ethnic groups to participate formally in political processes, motivated by a belief that they have been excluded from a society that has historically been ruled by dominant ethnic and caste groups.

   3.41      Nepal has enjoyed several years of political stability. A lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. DFAT assesses the risk of a return to widespread violence is low.

   Fear of Maoists

   3.42      Communist parties won the 2017 elections in both the parliament and the provincial assembly. The main far left parties, Communist Party Nepal (Unified Marxist-Leninist) CPN-UML and Communist Party Nepal (Maoist Center) merged in 2018. Before political groups were allowed to politically organise in 2015, Maoists recruited from among ethnic minorities who participated in their insurgency.

   3.43      Tens of thousands of people displaced by the long period of conflict in Nepal (see Recent History) remain displaced. As part of the peace process, Maoists and the government agreed on a programme to allow displaced people to return to their homes. The land once belonging to many displaced people had since become occupied illegally or been given away or sold by the Maoists during the civil war. Some displaced people lack documentation, preventing them from reclaiming their property.

   3.44      While the two main Maoist parties have merged, the movement has a history of internal splits and the ideology of the two main groups, while merged, is inconsistent. Historical claims of abuses during the insurgency remain unresolved.

   3.45      Maoists have the potential to control the national agenda without resorting to violence. In general, DFAT assesses 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.[3]

   [3] DFAT, Country Information Report – Nepal, 1 March 2019, para [3.38]–[3.45].

   […]

   Women

   3.61 The 2015 Constitution prohibits discrimination on the basis of gender in relation to inheritance and government employment and allows for ‘positive discrimination’ to establish special opportunities in relation to education, health, employment and social security. The constitution also prohibits physical, mental, sexual and psychological violence against women and establishes the right to compensation for such violence.

   3.62     The World Economic Forum’s Global Gender Gap Report 2017, an index that measures gender-based gaps in accessing resources and opportunities ranked Nepal 111 out of 144 countries.

   3.63     The practice of ‘chaupadi’, in which women are expelled from their homes during menstruation and sometimes after childbirth, persists, despite being outlawed in 2005 and prohibited in the 2017 criminal code. The practice sees menstruating women, particularly in rural western parts of the country, affected by ‘untouchability’. These women will live in sheds that are otherwise used by cattle or specially designed for this purpose as ‘menstruation sheds’ where they may be exposed to extreme temperatures and wild animals including venomous snakes. During this time they are not allowed to access green vegetables, fruit, other plants or milk and have limited access to water. Women are expected to engage in outdoor manual labour during this time. These conditions may be life threatening. Chaupadi may be known by different names including chhue, bahirhunu, chaukulla or chaukudi, depending on the district. While mostly associated with rural areas, particularly in the west of the country, taboos about menstruation can be found across the country, including in urban areas and among women who remain displaced by the 2015 earthquake and living in temporary shelters.

   3.64     Nepali women and girls across society, regardless of their economic, caste or ethnic status, are vulnerable to violence in many forms, including rape, sexual abuse and human trafficking. Nepal’s laws contain a narrow definition of rape and have a 180-day limitation period for filing complaints. Penalties for marital rape are low and the crime is rarely reported. The 2017 criminal code set new, higher gaol sentences for rape, however DFAT is not aware of whether this provides an effective deterrent. Police frequently fail to register complaints or investigate and prosecute rape cases, and often divert cases to settlement though informal justice mechanisms, particularly in rural areas.

   3.65     Reports of sexual assault to police are increasing as awareness of the criminal nature of that act and the police response increases. Most rapists are close family members and women from low socio-economic communities are particularly vulnerable.

   3.66     According to the 2018 statistical update to the United Nation’s Development Fund’s Human Development Report, 25 per cent of women have experienced intimate partner violence in Nepal. Domestic violence shelters do exist in small numbers in some districts. They do not provide long-term solutions, often limited to 45 days of residence, and women who temporarily live in shelters are often forced to return back to their violent domestic situation due to a lack of alternative options. Many women lack financial independence and are reluctant to seek help in situations of violence because of the risk to their security and livelihood.

   3.67     The 2009 Domestic Violence Act provides for monetary compensation and psychological treatment for victims, but authorities generally do not prosecute domestic violence cases. The legislation has a reconciliation and mediation approach and compensation must be pursued through the courts.

   3.68     Sexual harassment is a commonly reported problem. The practice is banned, but women’s groups report that penalties are not severe enough to act as a deterrent. Women who work in the informal sector are particularly vulnerable to sexual harassment.

   3.69     The mistreatment and killing of women for allegedly practising witchcraft is still prevalent in Nepal. Allegations of witchcraft most often relate to the onset of sickness or death amongst people and animals. Diseases spread through epidemics are also believed to be related to black magic. Victims are often beaten and forced to consume human excrement. Victims are usually poorly educated, economically vulnerable, from low-castes with little support around them. Widows are particularly vulnerable. Women do not often report cases because of a fear of being abandoned by their families and ostracised from their communities. The Anti-Witchcraft Act 2015 provides for jail sentences of 5 to 10 years and fines of up to AUD$1,400 for those convicted of maltreatment of anyone on accusations of witchery.

   3.70      Nepali police have set up special women’s cells in police stations that are staffed by female police officers to facilitate the reporting of crime by women in all districts. NGOs report that many of these cells are not fully operational, but that the situation is improving and that the police have continued to resource and improve these services.

   3.71     Nepali women rarely receive the same educational, employment and economic opportunities as men. Girls in particular are vulnerable to early marriage which disrupts or ends their formal education. Single women and widows are particularly vulnerable. While a widowed woman is legally entitled to her late husband’s estate, many widows are unaware of their rights or unable to enforce them due to traditional attitudes and weak legal protections.

   3.72 Part 2 of the 2015 Constitution has introduced positive changes to the citizenship rights of women. Children’s citizenship can now be conferred through a mother or father, whereas in the past citizenship had to be attested to by a husband or father.

   3.73     Current laws allow foreign women married to Nepali men to immediately obtain Nepali citizenship while foreign men married to Nepali women can only become a naturalised Nepali after domiciling permanently in Nepal for fifteen years. These men also face other restrictions including restrictions on employment and restrictions on the length of visas that they are able to obtain. Legislation stemming from the constitutional changes has not been finalised. The United States 2015 Human Rights Report for Nepal noted the ongoing difficulties faced by people whose citizenship was based on naturalization (rather than descent). However, endorsement from a husband is required for citizenship by descent for women, which this has been known to be refused by husbands (or their families, in the case of widowed women), for example in property disputes; a non-citizen cannot own property.

   3.74     Women’s NGOs report that it is difficult to obtain a divorce in Nepal. Legal changes have made it possible for a woman to divorce her husband and still keep some of the property, and even to gain child custody rights. However, such court cases can be lengthy and expensive and it can take many months to obtain a divorce if the woman makes any kind of property or custody claims.

   3.75      DFAT assesses that women in Nepal face high levels of societal and official discrimination and a moderate risk of violence. However, the experience of individual women varies. Women from poorer or lower-caste backgrounds experience a higher risk of discrimination and violence.[4]

   […]

   PREVALENCE OF FRAUD

   5.45      A black market exists for citizenship certificates and other official documents in Nepal and fake documents and fraudulently obtained genuine documents can be obtained with the appropriate contacts and financial resources. Government officials may ‘sell’ citizenship certificates and Nepalis with citizenship certificates may also provide misleading or false information in support of other people’s applications. The Prevention of Corruption Act (2003) established the Committee for the Investigation of the Abuse of Authority, which has jurisdiction over cases of fraudulent identity documents involving corruption among public officials.

   5.46      While fraudulently obtained genuine documentation can be obtained through internal corruption, the lack of centralised record-keeping for civil documentation does not assist in the accurate production of documents. Manual records are still heavily relied upon, particularly in rural areas. A system of Village Head identification also allows for exploitation of this system. Biometrics are not often captured as part of processing of documents and documents often contain minimal security features, if any exist at all.[5]

   [4] DFAT, Country Information Report – Nepal, 1 March 2019, para [3.61]–[3.75].

   [5] DFAT, Country Information Report – Nepal, 1 March 2019, para [5.45]–[3.46].

   Hearing, credibility, findings and assessment

1. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

2. In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191] where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

3. The Tribunal is satisfied that the applicant is a citizen of Nepal and accordingly her claims will be assessed against Nepal.

4. The Tribunal has the following credibility concerns with the applicant’s claims as to the nature and level of her political involvement in Nepal, and fleeing Nepal based on her political involvement and targeting by Maoists.

5. Firstly, the applicant has provided significantly inconsistent evidence as to the nature of her political involvement in Nepal.

6. The written claims for protection as part of this application indicate that the applicant was elected as [Official A] of the NNFSU while at school. This is corroborated by supporting statements, including from the school.

7. Yet, in the interview with the delegate with respect to the first protection visa application the applicant indicated that she was not elected [Official A] of the NNFSU, but that [in] May 2003 she had been elected to the position of [Official A] of the Young Communist League (YCL), the youth wing of the Maoists. The applicant indicated that this had been because the Maoists had asked her to be involved.

8. This inconsistent evidence was put to the applicant in the hearing. Concerns by the Tribunal with this evidence include the fact that the YCL operates in opposition to the views of the NCP-UML, and it being inconsistent that the applicant would be a member of both.

9. In the hearing, the applicant denied that she had had any support from or involvement with Maoist groups or otherwise was involved in the YCL. The applicant in the hearing was not able to provide an explanation for this starkly inconsistent evidence in the initial interview with the delegate.

10. The Tribunal finds the fact of the applicant clearly providing evidence to the delegate that she had been a member of the YCL, which she now denies, significantly undermining of the applicant’s overall credibility as to her claimed political involvement in Nepal.

11. Secondly, the applicant has provided unsatisfactory evidence in the hearing as to her involvement in the NNFSU and positions held.

12. When the Tribunal first asked the applicant about her political involvement she referred to involvement in organisations, but indicated that she could not be sure whether she was an ordinary member or [Official A]. The Tribunal asked the applicant why she would not remember that she had been [Official A], if she had. The applicant then indicated that she had been a [Official A] of a group while at school.

13. However, at other points in the hearing the applicant maintained that she was just an ordinary member of political organisations and never [an Official A].

14. The fact that the applicant at the beginning of questioning about her political involvement indicated that she could not remember whether she was an ordinary member or [Official A] creates credibility concerns for the Tribunal. The Tribunal does not think that the applicant would likely confuse whether she had held the not insignificant position of [Official A] of a political organisation. The way that the applicant gave this evidence did not persuade the Tribunal that the applicant was recounting actual political involvement.

15. The vacillation between the applicant in the hearing alternatively indicating that she had been just an ordinary member but then referring to being [an Official A] also created credibility concerns for the Tribunal. When the inconsistencies in this respect were put to the applicant, she explained that it was only at school that she was [an Official A] and then became just an ordinary member after school.

16. Again, the way that the applicant gave this evidence and the inconsistency in evidence as to whether the applicant held a leadership position or was just an ordinary member did not persuade the Tribunal that the applicant was giving truthful evidence as to her political involvement in Nepal.

17. Thirdly, the timing of the applicant taking steps to travel to Australia and obtain a student visa is not consistent with the applicant’s evidence as to the time at which she decided that she needed to flee to Australia for her protection.

18. The applicant confirmed in the hearing her written claims that [in] December 2008, after a group of Maoists came to her home and threatened that they would kidnap her, she made the decision to flee to Australia for her safety.

19. The Tribunal put to the applicant in the hearing that the delegate’s decision makes clear that the student visa that the applicant applied for to enter Australia was applied for in August 2008 and granted on 24 November 2008.

20. The Tribunal indicated that this was inconsistent with written claims confirmed in the hearing that the visit by Maoists [in] December 2008 was the catalyst for the applicant deciding that she needed to come to Australia.

21. In response the applicant referred to possible confusions as to dates because of differences between dates in the Nepalese and Western calendars.

22. The Tribunal put to the applicant that it would consider that the applicant would be careful in making written claims for protection in English to provide correct dates in the Western calendar. The applicant maintained that there was confusion.

23. Whilst the Tribunal accepts the need for the applicant to convert dates from the Nepalese calendar, the Tribunal considers that the applicant would take care in converting dates for the purpose of important written claims as part of her protection visa application. The fact of the written claims indicating a date on which she decided that she needed to come to Australia for her safety, inconsistent with evidence as to when the applicant did in fact apply for and obtain her student visa for Australia, is undermining of her credibility as to her claimed reason for coming to Australia and generally. This is not a determinative factor in adverse credibility findings but is considered cumulatively with other issues.

24. Fourthly, the delay of more than two years from arrival in Australia in the applicant making the claim for protection, when she had feared for her safety at the time of coming to Australia, is undermining of the truth of her claims.

25. When this was put to the applicant in the hearing, she indicated that her migration broker told her she did not need to take any further steps to facilitate her stay in Australia after getting her initial visa. The applicant indicated that it took some time before she realised that there was an option to seek a protection visa in Australia.

26. The Tribunal is not satisfied that if the applicant had come to Australia, on a fraudulently obtained student visa as a dependent, as the applicant indicated in the hearing, that she would not have discovered at an earlier opportunity than she claims the possibility of seeking a protection visa in Australia to ensure her permanent stay and safety.

27. Before addressing these credibility concerns, the Tribunal notes the following written submissions made by the applicant following the hearing. The written submissions indicate that at the hearing the applicant focused more on her health and she forgot to recall past events that had happened a long time ago. Her memory was poor. She also indicates that she was not comfortable giving evidence because it was not face to face. The applicant indicates that she is from a poor area with a low level of education and was dependent on advice from political leaders so that she cannot be expected to know historical events and details of the party. Political instability has led to insecurity and crisis in terms of the government’s ability to function effectively. The applicant will be forced to live in extreme vulnerability in Nepal.

28. The Tribunal considers the four credibility issues cumulatively. Considered together, they are significantly adverse to the applicant in considering her truthfulness as to the claimed level of political involvement and ongoing harassment from Maoists causing her to flee Nepal for Australia.

29. The Tribunal does not think that the credibility concerns are reasonably explained by poor memory or education or for any of the other reasons provided in the written submission provided following the hearing. Key credibility concerns are, in main part, not marginal or nuanced and include fundamental and significant issues in terms of the applicant’s claims, including which political parties she has been involved in. There are significant credibility issues and inconsistencies that arise beyond the applicant’s evidence in the hearing.

30. The Tribunal considers that the video hearing allowed the applicant to give her evidence in a fair and meaningful way and to facilitate the Tribunal being able to effectively assess credibility in all the circumstances.

31. The Tribunal is not satisfied that the applicant has been a credible or truthful witness in terms of key aspects of her claims.

32. Whilst the Tribunal is satisfied that the applicant may have had some political involvement at school and thereafter as a supporter of the NCP-UML and associated organisations the Tribunal is not satisfied that she held the position of [Official A] in any political organisation, including associated with the interests of the NCP-UML.

33. In considering these claims, the Tribunal has taken into account corroborating supporting statements, including from the applicant’s school indicating that she was the [Official A] of the NNFSU. The Tribunal put to the applicant in the hearing DFAT information that fraudulent documents are readily obtainable in Nepal. The applicant maintained that the documents were genuine. The Tribunal is not satisfied of this given starkly inconsistent other evidence given by the applicant including that she was not the [Official A] of the NNFSU.

34. The Tribunal is prepared to accept that the applicant and other students and teachers were detained by Maoists for five days in 2003. The applicant indicated in the hearing that during this period they tried to persuade those taken to join the Maoist cause. The applicant indicated that they told the Maoists that they would do this, causing them to be released, but that she did not change her political allegiance.

35. The fact of the applicant being taken with students and teachers during the period of the conflict, is not implausible.

36. However, the Tribunal is not satisfied that there was ongoing targeting or threats by Maoists towards her thereafter, or that she decided to flee to Australia when Maoists came to her home in December 2008, after the civil conflict had ended, and threatened to kidnap her.

37. The Tribunal is not satisfied that the applicant being taken with other students by Maoists for five days in 2003 is a basis on which the applicant would now face harm in Nepal 18 years later.

38. The Tribunal put to the applicant in the hearing information from the DFAT report on Nepal extracted which indicates that currently the political situation in Nepal is very different than when she was there. There is a lively political environment and Maoists have the ability to control politics without resorting to violence. The Tribunal put to the applicant that even if it were to accept that everything she is claiming in terms of her political involvement and harm from Maoists is true, that the changed political environment suggests she would not face requisite harm many years later in Nepal given the significantly improved political environment.

39. In response, the applicant maintained that those who have an adverse interest in her would still be alive and would harm her on return. The Tribunal is not satisfied, even if the Tribunal were to accept all of the applicant’s claims, which it does not, that she today in Nepal would face requisite harm from Maoists as claimed.

40. The Tribunal is not satisfied that Maoists in Nepal or any other groups or individuals in Nepal have an ongoing adverse interest in the applicant such that they would cause her serious or significant harm on return.

41. The Tribunal asked the applicant if she had any concerns in returning to Nepal apart from political issues and health issues. The applicant indicated that she did not. The Tribunal then specifically asked the applicant if she fears harm in Nepal based on being a woman. The applicant indicated that she does fear difficulties on this basis.

42. It is telling to the Tribunal that the applicant did not specifically mention this in the hearing when asked for a reason for not being able to return to Nepal. Nevertheless, the Tribunal accepts, including from the DFAT information, that there can be difficulties faced by women in Nepal.

43. However, the Tribunal put to the applicant that, as she indicated in the hearing, she has both her parents living in her home village together with [sisters] in the same village who would be in a position to provide support to the applicant. The Tribunal indicated to the applicant that she had demonstrated resilience and adaptability in remaining in Australia, a foreign country with a different language, for many years. The Tribunal put to the applicant that it was not inclined to consider that simply based on being a woman, with the family support that she had in Nepal, she would face requisite harm in returning to Nepal.

44. The applicant maintained that violence towards women does happen. While the Tribunal accepts this, it is not satisfied, for the reasons indicated, that the applicant is at a real risk of significant harm on return to Nepal simply based on being a woman.

45. The Tribunal put to the applicant in the hearing that, despite multiple requests by the Tribunal, she had not provided recent authoritative medical reports attesting to having significant current health issues. In response, the applicant indicated that her regular GP had retired, and she had a new GP. The applicant indicated that the next appointment with a specialist is not until February 2022.

46. The Tribunal put to the applicant that if she had current serious medical conditions under the treatment of a specialist, the new GP would be able to provide a report providing details. The Tribunal gave the applicant three weeks from the hearing to provide relevant evidence. The Tribunal indicated that in the absence of evidence being provided it was not inclined to consider that she was currently suffering any serious medical condition.

47. The Tribunal put to the applicant that even if she was suffering a medical condition for which there was inferior treatment in Nepal this would not meet protection criteria. In relation to significant harm for the purpose of the complementary protection criteria, there would not be a deliberate intention by anyone to cause the applicant significant harm. This is relevant in terms of defined categories of significant harm of cruel and inhuman treatment or punishment or degrading treatment or punishment.

48. In response in the hearing, the applicant referred to her needing long-term medical care and this would not be adequately provided or be able to be afforded by the applicant in Nepal.

49. In the written response provided after the hearing the applicant indicates that she has no health condition currently. She is alive because she received treatment in Australia. She would have died if she were in Nepal. Although the applicant’s health has improved she worries that she will not be able to receive further treatment in Nepal that may be necessary given her past conditions.

50. In the absence of authoritative medical information, the Tribunal is not satisfied that there is any current condition suffered by the applicant that continues to require significant medical treatment. In any event, the Tribunal is not satisfied that inferior medical treatment that the applicant may receive in Nepal would constitute requisite harm for the purpose of protection criteria for the reasons outlined above.

51. The Tribunal considers that the maintenance of the applicant prior to and in the hearing that she continues to suffer from a medical condition that would cause requisite harm to her in Nepal, but after the hearing indicating that she currently has no health issues, buttresses more direct concerns as to the applicant’s credibility and opportunism in making claims for protection.

52. Considering all of the evidence, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for any of the reasons claimed. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, that she faces a real risk of significant harm.

53. The Tribunal has considered the 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).

54. 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

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

    David McCulloch
    Member