1706146 (Refugee)

1706146 (Refugee) [2022] AATA 2499 (9 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1706146
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Rachel Da Costa
DATE:9 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 June 2022 at 2:51pm
CATCHWORDS
REFUGEE – Protection visa – Nepal – persecution due debt – creditor filed FIR against parents – applicant as guarantor – credibility issues – changed evidence as to parents’ occupations – amount of money borrowed – time periods – cancellation of student visa – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 February 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Nepal, applied for the visa on 26 July 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provided the following information.
He was born in [Village 1], Myagdi district, Nepal on [date]. He has the right to enter or reside in India. He speaks, reads and writes Nepali, English and Hindi. He belongs to the Chhetri ethnic group and his religion is Hindu. He is unemployed. In Nepal, he always lived in [Village 1] until he came to Australia. He completed High School in Nepal. In Australia, he studied [a course] at [an educational institute]. In Nepal, he has a mother, father and sister.
He arrived in Australia in December 2008, travelling on his Nepal passport issued on [in] 2007. He was the holder of a Student visa. He has never departed Australia since his first arrival. His Student visa was cancelled in January 2014 because he ‘didn’t attempt the class regularly’. Since then, he has not worked.
Evidence before the Department
Protection visa application
In his protection visa application form lodged on 26 July 2016, the applicant makes the following claims:
·     He left Nepal to study.
·     His dad borrowed a huge amount of money from creditors and he is unable to pay off these debts.
·     Police and creditors are looking for his father and the applicant in order to collect money.
·     The applicant has done nothing wrong but he will have to face jail if he goes there now.
·     He cannot move to other places because he has to land in Kathmandu first and everyone will know and he will face danger.
In a letter dated 22 July 2016 accompanying his protection visa application form, the applicant provided additional information and makes the following additional claims:
·     His parents were his financial sponsor and used to help him financially but not all the time.
·     His father told him that he had too many debts in Nepal and his business was making a loss.
·     His Student visa was cancelled in January 2014. He applied to the MRT in May 2014 but was out of time. He applied to the Federal Circuit Court [in] August 2014. He was given a hearing date in June 2016, but his agent advised him to withdraw. He had a debt relating to his application and also owed money to friends in Australia.
·     He came to know from Nepal that his father had a big amount of debt and creditors had lodged an FIR[1] in the local police station complaining against his father.
·     His father convinced them that the applicant will pay all the debts.
·     The applicant is in big trouble because he can’t pay off his father’s debts and his own debts in Australia.
·     His father’s debt amount is around [amount].
·     Local police in Nepal have given his father a last warning, otherwise they will keep him in jail and put the applicant in interrogation.
·     The applicant is worried because he has not done anything wrong in Nepal. Everyone is waiting for him there.
Other documents provided to the Department
[1] First Information Report
The applicant submitted a number of additional documents in support of his protection visa application:
·     Letter dated [July] 2016 from [name deleted] stating that the applicant has been borrowing money from him in Australia and owes him [amount]. He would like the applicant to stay in Australia so he can clear his debt;
·     Documents relating to the applicant’s application to the Federal Circuit Court (FCC);
·     Documents relating to the applicant’s studies in Australia, including course details and academic transcripts;
·     Bridging visa grant notices;
·     Application for review form submitted to the Migration Review Tribunal (MRT) on 12 May 2014 in respect of the cancellation of the applicant’s Student visa and related correspondence;
·     Documents relating to the applicant’s litigation debt to the Commonwealth.
The interview
The applicant attended an interview with the Department on 3 February 2017. During the interview he provided further information about his claims, including the following:
·     His father has a business selling [products]. He has had this business for more than 15 years. His mother is a retired [occupation].
·     His parents paid for him to come to Australia in 2008 to study.
·     After the earthquake, his parents borrowed money from a finance company to rebuild their house which had collapsed. They have not repaid the money.
·     The loan was more than A[amount].
·     The applicant was the guarantor for the loan which means he is responsible.
·     His parents can’t repay the money because the company is not doing well and they have no other income.
·     If he goes back to Nepal he could be punished. He could be taken to the police and jailed.
·     The loan company has contacted the applicant’s family and if the applicant goes back, there is a police warrant for him. His mother told him about the warrant about three weeks ago.
·     Nothing has happened to the applicant’s father or family.
·     The applicant can’t go back to Nepal because he needs to stay in Australia and work to repay the money.
The delegate’s decision
On 17 February 2017, a delegate of the Minister refused the applicant’s protection visa application. The delegate found that based on the evidence, the applicant had the right to enter and reside in India and has not taken all possible steps to avail himself of that right. On that basis, the delegate found that the applicant has statutory effective protection in a third country and therefore he is not a person in respect of whom Australia has protection obligations and the applicant does not meet the criteria for the grant of a protection visa.
Evidence before the Tribunal
The review application
On 27 March 2017, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant included a copy of the delegate’s decision with his application for review.
The migration and visa history of the applicant
Based on information contained in the delegate’s decision, documents provided by the applicant with his protection visa application, and evidence given by the applicant in the Tribunal hearing, the applicant’s migration and visa history is as follows.
·     [In] December 2008, the applicant arrived in Australia as the holder of a Student visa and has remained here ever since.
·     In June 2011 and April 2013, the applicant was granted further Student visas.
·     On 3 January 2014, the applicant’s Student visa was cancelled. He has not had work rights in Australia since this time.
·     On 12 May 2014, the applicant applied to the MRT for review of his visa cancellation decision. This application was made out of time.
·     On 14 May 2014, the applicant was granted a Bridging E visa as he was the subject of departure arrangements.
·     [In] August 2014, the applicant made an application to the FCC in respect of the decision to cancel his Student visa.
·     On 13 August 2014, he was granted a new Bridging E visa in connection with his application for judicial review.
·     In early June 2016, the applicant withdrew his application for judicial review in the FCC.
·     On 26 July 2016, the applicant applied for a Protection visa.
The hearings
The applicant appeared before the Tribunal on 20 May 2022 and 2 June 2022 to give evidence and present arguments. The Tribunal offered the applicant the opportunity to have the assistance of an interpreter in the Nepali and English languages, but the applicant declined. The Tribunal also reiterated to the applicant that he should indicate immediately if he had trouble understanding anything the Tribunal was saying or asking. The Tribunal considers that the applicant’s English was sufficiently fluent, and he did not have difficulty understanding or responding to the Tribunal’s questions. The Tribunal is satisfied that the applicant was able to participate in the hearings in a meaningful way.
The applicant was not represented in relation to the review.
Nationality
The applicant claims to be a citizen of Nepal and provided to the Department a copy of his Nepal passport issued [in] 2007. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Nepal. The Tribunal finds Nepal is his receiving country for the purpose of assessing his claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant gave evidence to the Tribunal that he filled out his protection visa application form and wrote the attached statement himself. He confirmed that there were no mistakes he wished to point out and no changes to his situation since the time of his application.
During the hearing, the Tribunal discussed with the applicant his family, employment, education, migration and visa history, the problems he claims his family have experienced in Nepal and why he fears returning there. The Tribunal found there to be significant discrepancies in aspects of the applicant’s evidence between his protection visa application documents, the oral evidence he gave to the delegate and to the Tribunal, which undermined his credibility. Further, the applicant provided no documentary evidence in support of his claims which, in the particular circumstances of his case, concerns the Tribunal. Overall, the Tribunal did not find the applicant to be a credible witness.
The Tribunal’s concerns are set out below.
First, discrepancies in the applicant’s evidence between his protection visa application, what he said to the delegate in the interview and the evidence he gave to the Tribunal in the hearing raise concerns for the Tribunal.
In his protection visa application form, the applicant states that his father has borrowed a huge amount of money from creditors and is unable to pay off the debts. He states that police and creditors are looking for his father and the applicant in order to collect the money.
In the letter attached to his protection visa application form, the applicant states that he found out his father has large debts and creditors have lodged an FIR with the local police complaining about his father. He states that the debt is around [amount]. He states that his father has convinced the police that the applicant will pay the debts. Local police have given his father a last warning, otherwise they will put him in jail and will interrogate the applicant as well.
In the interview with the delegate, the applicant stated that his father has had a business for about 15 years selling [products] and his mother is a retired [occupation]. He said his parents borrowed money from a finance company after the big earthquake[2] to rebuild their house which collapsed. The amount was more than [amount]. The applicant stated that he was the guarantor for the loan and so he is responsible. He said his father can’t repay the money because his business is not doing well. The applicant said he found out that the creditors have contacted his family and there is a police warrant issued for him if he goes back, but nothing has happened to his family.
[2] In the context of the applicant’s evidence, the Tribunal understands this reference to be to the 25 April 2015 earthquake which struck Nepal, killing and injuring thousands of people and damaging infrastructure, buildings and homes. See DFAT Country Information Report Nepal 1 March 2019, 2.7
In the Tribunal hearing, the applicant gave evidence that his parents were both farmers and this is the work they had always done. They have their own land and grow crops and raise animals for themselves. He gave evidence that in 2008, his mother borrowed about [amount range] from a financial company to pay for the applicant’s college in Australia and to build a house. He said that because of interest, he thinks she now owes around [amount]. He gave evidence that he signed for the loan in 2008 and the funds were deposited into his bank account because his mother did not have an account. He used to send money back to Nepal which was used for making interest repayments, but this stopped in 2014 and his family has made no repayments on the loan since 2014. In 2015, his mother told him that people from the finance company were threatening her and later they made a threat against the applicant. This was in 2016 when the finance company sent people to raid his parents’ house. His parents convinced the police they would repay the money, but they didn’t repay it, so the finance company people came again. The Tribunal asked the applicant when this occurred and he said he was not sure but maybe it was in April or May 2016. The Tribunal asked the applicant whether his parents had experienced any problems with since that time and he said they had not. They could not repay the money and so the finance company people have not done anything.
The Tribunal asked the applicant why he thought there would be a problem for him if he returned to Nepal now if nothing has happened to his parents. He said it is because the money is in his name and he is the main person. The Tribunal expressed its doubt that the people from the financial company would leave his family alone in the meantime and wait patiently for him to come back to Nepal with no certainty that he would return or repay the money. The Tribunal asked the applicant whether the finance company people had contacted him directly and he said they had not and he had just heard what was happening from his mother. He said they still came to his parents’ house sometimes and made threats against him. The Tribunal asked him how many times this happened since 2016 and he said it was seven or eight. The Tribunal asked him whether this meant it was about once a year and he agreed. The Tribunal asked him what the people say or do when they come, and he said they ask his mother when he (the applicant) is coming back from overseas. That is why he thinks he is in danger. The Tribunal asked the applicant whether there were any other things that happened that make him think he is in danger and he said there were not. The Tribunal notes that earlier in the hearing the applicant had referred to an arrest warrant in his name but he did not mention this again to the Tribunal.
The Tribunal put to the applicant that it had concerns about his credibility in light of discrepancies between the information in his protection visa application, what he had told the delegate and the evidence he had given in the Tribunal hearing. The Tribunal gave the applicant some specific examples, including that he had told the delegate his father had a [business] that wasn’t going well and he told the Tribunal his parents have always been farmers; he told the delegate his father borrowed money in 2015 after the earthquake to rebuild their house and he told the Tribunal that his mother borrowed money in 2008 for his college fees and to build a house; as well as differences in the amount borrowed. The applicant responded that in 2008 they borrowed money and then in 2015 there was an earthquake, and their house was damaged, and they borrowed money again in his father’s name. The Tribunal does not accept this explanation as it does not account for the discrepancies in the applicant’s evidence.

For example, in his protection visa application, the applicant states that his father borrowed a large amount of money from creditors and the debt is around [amount]. He does not say why his father borrowed the money. In the interview with the delegate, the applicant said that his parents borrowed more than [amount] to rebuild their house after the earthquake. In the Tribunal hearing, the applicant gave evidence that his mother borrowed the money, and the amount was [amount range] to cover the applicant’s college fees and to build a house.
In his protection visa application, the applicant does not mention his parents’ occupations. In the interview with the delegate, the applicant said that his father has a business selling [products] which he had had for about 15 years, and his mother is a retired [occupation]. In the Tribunal hearing, the applicant said that his parents were, and always had been, farmers.
In his protection visa application, the applicant does not say when his father borrowed the money that he owed to creditors and which was the source of the applicant’s claimed problems. In the interview with the delegate, the applicant stated that it was after the big earthquake (in 2015) that his parents borrowed the money. In the Tribunal hearing, the applicant gave evidence that his mother borrowed the money in 2008. When the Tribunal put this discrepancy to the applicant about whether the loan had been taken out in 2008 or 2015, he responded that they had borrowed money in both 2008 and 2015. The Tribunal does not accept this explanation for the discrepancy in the applicant’s evidence as it was given in response to a credibility concern raised by the Tribunal after the Tribunal had specifically mentioned both dates to the applicant. Prior to this, in the Tribunal hearing the applicant had only referred to money being borrowed in 2008 and that loan being the source of his claimed problems, despite being given the opportunity to refer to other events or problems. He told the delegate in the interview that the loan which led to his problems was taken out in 2015.
In his protection visa application, the applicant states that police and creditors are looking for his father and the applicant to collect the money. He states that local police have given his father a last warning, otherwise they will put him in jail and will interrogate the applicant as well. In the interview with the delegate, the applicant said that the creditors had contacted his family and there is a police warrant issued for him if he goes back, but nothing has happened to his family. In the Tribunal hearing, the applicant gave evidence that his mother had been threatened by people from the finance company and that they had raided his parents’ house, but since April or May 2016 his parents had not experienced any problems. He said the finance company people continue to come to his parents’ house about once a year to ask when the applicant will return. The applicant mentioned an arrest warrant in his name when asked initially by the Tribunal why he feared returning to Nepal, but did not repeat this claim again in the hearing despite being asked again about reasons he thought he was in danger if he returned to Nepal.
These discrepancies in the applicant’s evidence about his family’s circumstances, the timing, purpose and amount of the loan, who took out the loan, the nature of the claimed threats that followed the failure to repay the loan, who was threatened about repayment and by whom, all raise concerns for the Tribunal about the applicant’s credibility and the genuineness of his claims.
Secondly, the Tribunal considers the applicant’s evidence about the nature of the threats he claims his family, and through them, he, has experienced from people from the loan company and the police, to be vague and lacking in meaningful detail. Further, much of the detail the applicant provided in the Tribunal hearing about these claimed threats was in response to questioning by the Tribunal rather than being offered by him. The Tribunal has taken into account the fact that the applicant did not experience these claimed threats first-hand and was recounting what he claimed to have been told by his mother, but despite this, and combined with the Tribunal’s concerns about his credibility, it does not alleviate the Tribunal’s concerns.
Further, the Tribunal considers it to be implausible that if no repayments have been made on the loan since 2014, as the applicant claimed in the Tribunal hearing, that the creditors would have left his mother alone since 2016, as the person who is in Nepal and took out the loan (on one version of events), and focussed their threats on the applicant while waiting, possibly indefinitely, for his return from Australia with no certainty that he would be able to repay the money if he returned in any event.
The Tribunal’s concerns about the applicant’s evidence relating to the threats he claims he and his parents have received, raises concerns for the Tribunal about his credibility and the genuineness of his claims.
Thirdly, the lack of documents to support the applicant’s claims raises a concern for the Tribunal.
The applicant did not provide any supporting documents with his protection visa application that relate to the claimed loan and his status as guarantor.
In the interview with the delegate, the applicant offered to submit the police warrant and loan documents from the financial company if the delegate would give him a few more days. He said he hadn’t brought them with him. The delegate responded that they did not need anything further from the applicant but also did not tell him not to provide the documents. No documents were provided by the applicant.
In the hearing on 20 May 2022, the Tribunal asked the applicant whether he had any documents he wished to provide in support of his case. The applicant said he did, and that he would bring them to the next hearing. The Tribunal asked the applicant to provide the documents prior to the next hearing so the Tribunal could consider them beforehand. The applicant did not submit any documents. When asked about this at the hearing on 2 June 2022, the applicant said he didn’t have enough time to provide the documents. The Tribunal put to the applicant its concern that he had not provided any documents about the loan, his situation as guarantor or the involvement of the police despite having offered to provide documents in the past and having had a very long time to provide any documents. The applicant asked if he could have further time to provide documents. The Tribunal responded that it would not give the applicant extra time but if the applicant provided any documents to the Tribunal before it made its decision then the Tribunal would be obliged to consider them. The Tribunal put to the applicant that country information indicates that all sorts of fraudulent documents are easy to obtain in Nepal[3] and combined with the fact that any documents would be provided long after the claimed events, and the Tribunal’s concerns about the applicant’s credibility, it might give the documents no weight. The applicant indicated that he understood.
[3] DFAT Country Information Report Nepal 1 March 2019, 5.45, 5.46; Nepal: Prevalence and availability of fraudulent documents such as police certificates and reports, medical reports or hospital records, employment records and certificates, Research Directorate, Immigration and Refugee Board of Canada NPL105570.E 8 August 2016 (accessed 8 June 2022)
As at the date of the Tribunal’s decision, no documents have been provided by the applicant to support his claims. The lack of documents to support the applicant’s claims raises a concern for the Tribunal. The Tribunal considers that if the applicant or his parents had obtained a loan from a finance company in 2008 (or any other time), and the applicant had signed as guarantor and the money had been paid into the applicant’s bank account as he claims, there would be some documentary evidence of this. For example, the Tribunal would expect there to be a loan document and perhaps a statement from the applicant’s bank account showing the deposit of funds. The applicant told the delegate in 2017 that he had certain documents to provide, including the loan document and warrant, but he has never provided them. The applicant also told the Tribunal he had documents which he intended to provide but has never provided them. When asked about this in the hearing he said he did not have time to provide them. The Tribunal does not accept this explanation as the applicant has had years during which to obtain and provide documents.
In the circumstances of this particular case and the applicant’s claims, the Tribunal considers that the lack of any documents to support the applicant’s claims about the existence of the loan and his status as guarantor raises further concerns about his credibility and the genuineness of his claims.
Fourthly, the applicant’s migration and visa history strengthen the Tribunal’s concerns about his claims.
As set out in paragraph 12, the applicant arrived in Australia in 2008 as the holder of a Student visa and has not returned to Nepal since that time. In January 2014, his Student visa was cancelled, and he was in Australia without a visa for four months. [In] August 2014, he filed a case in the Federal Circuit Court challenging the decision to cancel his Student visa but withdrew in early June 2016. He made his application for a Protection visa on 26 July 2016. As the applicant stated in his protection visa application form, he was again in Australia without a visa for a period of time after withdrawing his case in the Federal Circuit Court.
In the Tribunal hearing, after discussing its concerns about his credibility, the Tribunal put to the applicant its concern that his migration and visa history, including the fact that he has spent time in Australia without a visa and that he applied for his protection visa shortly after withdrawing his case in the Federal Circuit Court relating to the cancellation of his Student visa, might suggest that his claims for protection are not genuine and what he really wants is a migration outcome that allows him to stay in Australia. The applicant responded that the problem came in 2015 and his parents told him there was a threat in 2016 and so he decided to apply for protection.
The Tribunal does not accept this response. As set out above, the Tribunal has significant concerns about the applicant’s credibility. The applicant’s explanation for why he applied for a protection visa in 2016 does not alleviate the Tribunal’s concerns about the genuineness of his claims and his reasons for applying for a protection visa.
Documents submitted by the applicant
The Tribunal has considered the documents provided by the applicant in support of his protection visa application as set out in paragraph 8 above. The Tribunal does not consider these documents to be relevant to its assessment of the applicant’s claims to fear harm if he returns to Nepal in the reasonably foreseeable future and, accordingly, gives them no weight.
Findings
Having considered all the applicant’s claims and evidence, for the reasons set out above the Tribunal finds that the applicant is not a witness of truth.
The Tribunal accepts that the applicant was born in [Village 1], Myagdi district, Nepal. The Tribunal accepts that the applicant has a mother and father who live in [Village 1] and that he has a brother and sister who live in [another country]. The Tribunal accepts that the applicant came to Australia to study. The Tribunal accepts that the applicant’s parents are, and always have been, farmers. The Tribunal accepts that nothing has happened to the applicant’s family.
The Tribunal does not accept that the applicant’s father has or had a business selling [products] or that his mother is a retired [occupation]. The Tribunal does not accept that the business of the applicant’s father was making a loss. The Tribunal does not accept that the applicant’s father borrowed a large amount of money and that he is unable to pay off his debts. The Tribunal does not accept that police and creditors are looking for the applicant’s father and the applicant in order to collect the money. The Tribunal does not accept that creditors lodged an FIR in the local police station complaining about the applicant’s father not repaying the money. The Tribunal does not accept that the applicant’s father convinced the creditors that the applicant would pay all the debts. The Tribunal does not accept that local police in Nepal have given the applicant’s father a final warning, otherwise they will keep him in jail and interrogate the applicant. The Tribunal does not accept that the applicant’s father’s debt is around [amount].
The Tribunal does not accept that after the earthquake in 2015, the applicant’s parents borrowed around [amount] to rebuild their house and that the applicant was the guarantor for this loan. The Tribunal does not accept that the applicant’s parents cannot repay this loan because his father’s business is not doing well, and they have no other source of income. The Tribunal does not accept that the loan company contacted the applicant’s family or that there is a police warrant in existence in respect of the applicant due to his position as guarantor of the loan.
The Tribunal does not accept that in 2008, the applicant’s mother borrowed [amount range] from a finance company to pay for the applicant’s college in Australia and to build a house. The Tribunal does not accept that the applicant signed for the loan, either in his own right or as guarantor, and that the money was paid into his bank account. It follows that the Tribunal does not accept the applicant’s claims that flow from this. The Tribunal does not accept that no repayments have been made on the loan since 2014. The Tribunal does not accept that the applicant’s mother told him in 2015 that she had been threatened by people from the finance company. The Tribunal does not accept that in 2016, the finance company sent people to raid the house of the applicant’s parents. The Tribunal does not accept that the applicant’s parents convinced the police that they would repay the money, but they did not. The Tribunal does not accept that the finance company people came to his parents’ house again in April or May 2016 and made threats about the applicant. The Tribunal does not accept that people from the finance company continue to come to his parents’ house and make threats against the applicant and ask when he will return from overseas. As the Tribunal does not accept the applicant’s parents have ever had any problems with people from the finance company, the Tribunal finds that the applicant’s parents have not had problems with people from the finance company or anyone else since 2016.
Does the applicant meet the refugee criterion?
In his protection visa application form and attached letter, the applicant states that he fears returning to Nepal because police and creditors are looking for him and he will have to face jail and interrogation. In the interview with the delegate, the applicant the applicant stated that if he returns to Nepal he could be taken to the police and jailed and the police have issued a warrant for him. In the Tribunal hearing, the applicant stated that he fears returning to Nepal because there is a loan which he has not repaid and there is an arrest warrant for him. He fears being harmed by the finance company people and arrested by the police. In light of the Tribunal’s findings above that there is no loan in the applicant’s name and nor is he the guarantor for a loan to his parents, that police and creditors are not looking for him, that he is not the subject of a police warrant and that threats have not been made against him, the Tribunal does not accept these claims. Therefore, the Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances if he returned to Nepal in the reasonably foreseeable future.
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Nepal now or in the foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[4] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm because of his claimed status as the guarantor of an unpaid loan or for any other reason.
[4] MIAC v SZQRB [2013] FCAFC 33
Therefore, 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 suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2499

9 June 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction