1707062 (Refugee)

1707062 (Refugee) [2022] AATA 693 (28 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707062
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Alan McMurran
DATE:28 January 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 January 2022 at 10:22am

CATCHWORDS
REFUGEE – protection visa – Nepal – fear of harm from criminal gang and police because of short membership of gang – threats from gang leader – credibility – paid agent to complete and lodge temporary visa application without knowing contents or intending to abide by conditions – undetailed claims and evidence – no evidence of current interest to gang or police – country information – possibility of relocation and right to enter and reside in India – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Rajalingam (1993) FCR 220
MIMA v S152/2003 (2004) 222 CLR 1
MIMAC v SZRHU (2013) 215 FCR 35
Selvadurai v MIEA (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
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

This is an application lodged 4 April 2017 for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 March 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 29 June 2016. The delegate refused to grant the visa on the basis that the applicant is not a refugee and not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or 36(2)(aa) of the Act. The delegate also found that the applicant has a right to enter and reside in India.
The applicant appeared before the Tribunal on 13 January 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The hearing was conducted in accordance with the Tribunal’s COVID-19 Practice Direction, which the Tribunal deemed appropriate in accordance with its statutory objective of providing a mechanism of review that is fair, just, economical, informal, and quick. The applicant was not represented in relation to the review. The applicant indicated he was willing to proceed, having provided all relevant information.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
Even if a person meets the elements of the refugee definition in s 5H(1), he or she may not meet the criterion in s 36(2)(a) because of the operation of s 5H(2). Section 5H(2) provides that s 5H(1) does not apply if the Minister has serious reasons for considering that the person has committed a crime against peace, a war crime, or a crime against humanity, or has committed a serious non-political crime before entering Australia or has been guilty of acts contrary to the purposes and principles of the United Nations. However, the Migration and Refugee Division of this Tribunal, considering an application for review of a decision to refuse or cancel a protection visa under Part 7 of the Act, has no power to determine s 5H(2) issues: ss 411(1)(c) and (d).
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are:
·Whether the applicant meets the refugee criterion and is a refugee and entitled to a protection visa because of a well-founded fear of persecution, and that there is a real chance, if the applicant returns to his country of nationality, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion;[1]
or if not,
·whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his country of nationality, there is a real risk that he will suffer significant harm.[2]
[1] The Act, s 36(2)(a), and s 5H (“refugee”) and s 5J (“well-founded fear”) definitions.
[2] s 36(2)(aa).
The Tribunal has had regard to the Act and Regulations; an electronic copy of the Department’s files, including an application for a [specified visa] and Bridging visa for work right entitlements; record of interview with a department officer; and the Tribunal’s file.
The Tribunal has also had regard to the Department’s Refugee Guidelines[3] and relevant country information, the applicant’s oral evidence, and information generally available from the internet.
[3] PAM3.
Nationality
It is accepted that the applicant is a national of the Democratic Republic of Nepal on the basis of his Nepali passport submitted to the Department and his oral evidence, and the Tribunal will assess his claims on that basis.
The Tribunal further accepts that for the purposes of s 36(3) of the Act, the applicant has the right[4] to reside in the Republic of India as well as his country of origin, Nepal.
[4] MIMAC v SZRHU (2013) 215 FCR 35.
The Tribunal finds that Nepal is the receiving country for the applicant for the purposes of

s 36(2)(aa).
Background and claims
The Tribunal explained to the applicant the requirements for meeting the refugee threshold for the protection visa. The Tribunal indicated in summary that the facts needed to establish that there is a real chance the applicant has a well-founded fear of persecution, should he return to Nepal. The Tribunal explained that the applicant must show not only that he was afraid, but that his fear was well-founded based on apprehended persecution for one or more reasons being his race, religion, nationality, or membership of a particular social group, or political opinion.
The applicant is a [Age]-year-old citizen of the Federal Democratic Republic of Nepal. The applicant arrived in Australia [in] June 2016 on a [specified visa]. The visa was valid for a period of [Number] days to enable the applicant to [do something] in Australia, where he was contracted to [continue something]. At the time of his application, the applicant provided a copy of his passport together with a typed statement.
The applicant confirmed that he had received a copy of the Department decision made 17 March 2017. He said he had understood some of the decision and that it was based on him having the right to be able to freely enter and reside in India, based on his Nepali citizenship, and which he had not yet attempted.
The applicant has confirmed he is a Nepalese Magar Hindu, unmarried, his parents are still living in the family village in the district of Myagdi. He has two married sisters and a brother living in Nepal. He also has an uncle in Kathmandu. He has no relatives in Australia.
The applicant was educated in the Nepalese high school system which he completed in 2010. He has no tertiary education or other qualifications since leaving school. In Australia, he obtained a driving licence and a permit as [an Occupation 1] in New South Wales. After leaving school, the applicant spent approximately two years unemployed, variously living in Kathmandu with some friends, his uncle, and in his home village in Nepal. He was eventually able to obtain work through a labour contracting firm he had applied to in Kathmandu and went to work in [Country] as [an Occupation 2] in a [workplace]. He stayed in that job for two years, from approximately August 2013 until September 2015 when he returned to Kathmandu.
On his return to Nepal, he resumed living with his friends, and from time to time with his uncle in Kathmandu. He needed money and his friends encouraged him to join a gang, where he participated in their activities from about September 2015 and for a period of around four months, before leaving for Australia in June 2016. He has not returned to Nepal. The applicant applied for the protection visa immediately upon his arrival in Australia, with the assistance of a friend.
The applicant corrected certain information in his visa application form at the hearing and referred to below.
The applicant was invited to provide any further information to the Tribunal and asked if he required additional time to do so. The applicant declined and told the Tribunal all information he sought to rely upon had been provided.
The applicant’s protection claims are set out in the Department[5] application form which the applicant said he completed himself with limited assistance from a friend in Sydney.
[5] paragraphs 87–96 of the Department application form.
He corrected some of the details in the application form at the hearing. He said his occupation was not “[Occupation 3]”,[6] that he did not know what that occupation involved, and that he had only worked as [an Occupation 2] in [Country]. He also made some comments about his [initial] visa application which are referred to below, and which reflect on the applicant’s credibility.
[6] Ibid at paragraph 34.
In summary, the applicant claims he fears returning to Nepal because of:
·retribution from a criminal gang which he had joined;
·the police, who might murder him;
·failing to follow the leader’s instructions and not collecting money from business people as directed from time to time;
·his fear that it is not safe for him to return either anywhere in Nepal or across the border into India.
The applicant explained that he re-joined a group of friends in Kathmandu after returning from [Country] and towards the end of 2015. The group had a leader who ordered him to do things and he was unable to refuse the leader due to personal death threats if he did not. He sought safety by running away after several months to a country where he could not be located. He was in imminent danger in Nepal. If he returns, he claims he will be killed either by police or gang members, who mentally tortured him by asking him to perform activities such as extortion. He was unable to seek help from police, which involved great risk. He could not relocate to other parts of Nepal or India because of a criminal nationwide network. He betrayed the gang and believes authorities will not protect him because he is seen as a criminal. He may be punished by authorities on his return.
The applicant produced a written statement in support lodged with the application and which it is convenient to set out in full as follows (unedited):
To Whom It May Concern.
My statement
My name is [the applicant], I was born on [Date]. 1 was born in Myagdi, Nepal. I have parents, two sisters and one brother who reside in Nepal. I am Hindu. I belong to Magar ethnicity. I am a citizen of Nepal. I studied and completed my school leaving certificate from [School], Myagdi. After the completion of secondary education, I studied and completed +2 from [College], Kathmandu, I am a supporter of the Maoists and I have been supporting the Maoist since I completed year 12.
I went to [Country] in August 2013 and stayed there working as [an Occupation 2] until September 2015. I was accused of injuring [Mr A] of [Village], Myagdi. One of our gang members opened fired and injured [Mr A] at [Village], Myagdi in December. The villagers identified me and I was reported to the police despite the fact that I did not injure the man but I was involved with the gang. We entered the house of [Mr B] and [Ms C] and our gang members looted gold jeweiries and cash money after we had received instructions from our gang leader. My name was on the list that was circulated after the incident. Gang leader ([Mr D]) forced me to collect money from business people and I was unable to refuse him or his members. I remained in Nepal pretending that I was performing the task given by the gang leader after the incident in [Village], Myagdi. I was forced to involve in the criminal activities. I experienced mental torture from gang leader because I was forced to perform the task that involved criminal activities such as extortion from business people and I would receive death threat if I refused to perform the task given.
I had to abide by the Criminal gangs' instructions and I participated in the activities of the Criminal gang. Even I felt unsafe I had to continue with the activities and I could not refuse to carry out instructions because the leader of the Criminal Gang had threatened that he would kill me if I refused to obey his instructions. I had no option apart from being obedient to the gang leader and his members, The criminal gang operates in secrecy and its members are unrecognizable to outsiders. Gang leader forced me to involve in the practice of asking for donations or demand money in a secret mariner from city dwellers, wealthy people including business people. I was in a situation that my life would end up being killed by members of the criminal gang or gang leader if I refused to perform the criminal activities of the Gang. I remained in Nepal pretending that I had been performing the task as directed by the gang leader. I received death threat from the Gang leader after I had refused to kidnap a daughter of business man.
I decided to disassociate myself from the Criminal gang since it is not my nature to be a part of the criminal gang or activity. I contacted a friend who had introduced me to the agent who could send me overseas. I was able to meet with the agent and the agent advised me that he could send me to Australia on a [specified] visa if I paid him the money in the amount of Rs 11, 00000.00. I paid the agent through one of my relatives in Kathmandu. I came to Australia [in] June 2016 with the aid of an agent. Since I was in imminent danger of being murdered by the gang leader or police, my safety situation forced me to flee Nepal by any means for any country where I would feel secured and get protection. I fled Nepal because I no longer wish to be associated with the Criminal gang and I do not want to be killed either by the gang or the police. I left Nepal to avoid my death. I will be killed either by the police or criminal gang if I return to Nepal.
It was impossible for me to seek help from others including police due to great risk involved. Criminal gang in Nepal has a nationwide network that is why I did not try to move as I was controlled by the Gang leader. Nepalese authorities including police consider me as a criminal and they would also persecute me for my involvement with the criminal gang.
In conclusion, I have constant fear of persecution and I cannot return to Nepal at all. Therefore, from the bottom of my heart I request the Australian government to be given a protection visa sympathetically.
Thank you.
Yours faithfully
[the applicant]
He said in the interview with the Department delegate that he had thought of going to India as he did not need a visa and could travel freely but because the gang had contacts in India he thought better of it as it would not be safe and he decided not to go. He was asked why he would still be hurt after spending time in Australia and he responded that the gangs are “crazy” in Nepal and will kill him because he had refused to work for them or alternatively, would make him join them again. He said his name was on a list to be investigated by police, and the interviewer asked why he would still be under investigation. He said the investigation was not finished and police and gang members would continue to look for him if he returned. He said he knows this from news coming from Nepal that police are still looking for gang members. The interviewer told him that his description of these events sounded like criminal justice matters in respect of which Australia did not offer protection. The applicant responded that he wanted to save his life and thought about moving to a safe place to avoid the police and the gang, and that he was told if he paid money, he could come to Australia.
At the hearing, the applicant addressed his claims further by adding and explaining (in summary) that:
·his parents and friends from his village had helped support him financially before he went to [Country] in 2015, and that it is common for Nepali citizens to help one another in this way. Friends from Saudi and Dubai had also sent him money;
·he had paid approximately AUS $13,000 to an agent in Kathmandu referred to him by his uncle, and a friend, for the [visa] application to come to Australia in 2016;
·he did not know what was in that application as he had not completed it himself; that he knew nothing about any contract to [do something]; that the agent in Kathmandu had made all the arrangements from the money paid to him, including the applicant’s airfare to Australia and the applicant simply attended on the agent to sign forms given to him, but which the agent did not read to him;
·friends in Nepal from his village and overseas friends and his uncle assisted him in paying the agent for the application;
·he lost his job in [Country] because the company was taken over by new executives who did not want to employ contracted foreign staff and had advertised for local [Country] staff;
·in 2016, he did not know where to go and left it to the arrangement by the agent to choose Australia as the destination country;
·he had tried not to be involved in all the criminal gang’s activities over a four-month period, after which he only pretended to do what they asked; he said however that he had been involved in committing “bad things”, including extortion, abduction, and kidnapping;
·he said he had been identified to police by people from a local village where he had attended school and who knew him, and that is why police were looking for him;
·he had not been caught, arrested, or charged or harmed by police or the gang members before he left for Australia and at the time of his departure;
·he had “stopped” joining the gang’s activities in early 2016 because his uncle in Kathmandu had told him he should stop doing it and he knew it was the wrong thing to do;
·he did not make any money from criminal activity but was given money for food and accommodation by the gang;
·the [initial] visa and the protection visa were not prepared by him personally, although he had signed both applications, and he never had any intention of coming to Australia to [do something], but only to escape from the gang in Nepal;
·since arriving in Australia, he stayed with a friend of his uncle who met him at the airport and helped him with the protection visa application; and that since then he has worked in Sydney sometimes as [an Occupation 4], but for the most part doing [Work sector] work for a Sydney [company] called [Company name] from [Suburb];
·During the COVID lockdown he was still able to do some part-time work as [an Occupation 4], but is currently working full time as [an Occupation 1] for the company, having obtained his [Occupation 1] licence approximately three years ago;
·he cannot return to Nepal or seek help from police because the gang members are “now in politics” and have joined political parties in Nepal and can tell police what to do including to pursue him, as the police and politicians in Nepal are “corrupt” and cannot be trusted;
·he cannot return to live in India because they will find him; Nepalis are discriminated against in India where they have only low-paid jobs and he will not go there; he has made no enquiries, but his friends working in India tell him they have been discriminated against and he does not want to be there;
·he will not go to Nepal because he is afraid, but maintains contact with his family every other week and if granted the visa, will bring his parents to Australia; his parents keep asking him when he will return to Nepal but he does not intend to do so;
·he is presently able to support himself as he earns approximately $1300 per week net and shares accommodation with three other work mates from his employer.
Consideration

When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness, and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The Tribunal formed the view at the hearing that the applicant did not appear unduly anxious or nervous and that his memory as to dates and names and some detail overall was aligned with what might be expected when asked questions covering a period since 2013.
The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.[7] A similar approach is endorsed in the Department’s Refugee Law Guidelines[8] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’).[9] The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[10]
[7] SZLVZ v MIAC [2008] FCA 1816 at [25].
[8] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines). Note that Ministerial Direction No. 84, made under s 499 of the Act, requires the Tribunal to have regard to those Guidelines, where relevant.
[9] UNHCR, re-issued February 2019 at [203]–[204]. Note that the Handbook is not binding on decision-makers.
[10] See Selvadurai v MIEA& Anor (1994) 34 ALD 347 at [348].
The applicant is unrepresented. The applicant made no written submissions and relies upon his statements in the Department application form and interview, which he confirmed at hearing are correct, together with his statements and answers in oral evidence summarised above. He relies on what he describes as his membership of a group he calls a “gang”, but without reference to any other identified members, or members who have been persecuted or will be persecuted, only himself.
As set out in Appellant S395/2002 v MIMA, McHugh & Kirby JJ explained that:
The central question is always whether this individual applicant has a well-founded fear of being persecuted for reasons of ... membership of a particular social group.[11]
[11] Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [58]. Similarly, in MIMA v S152/2003 (2004) 222 CLR 1, McHugh J explained at [82] that in determining whether an asylum seeker has a well-founded fear of persecution, the decision maker usually needs to know a good deal more than that other persons holding similar beliefs, opinions or membership of races, nationality or particular social groups have been persecuted. It will ordinarily be necessary to know whether the circumstances of those persons were similar in all material respects to those the asylum seeker is likely to face. Only then will the experience of other members of the relevant category, such as the group referred to by the applicant in this instance, throw light on whether there is a real chance that the asylum seeker will be persecuted for being or having been a member of that group.
In assessing credibility, the Tribunal has had regard to the applicant’s individual circumstances. The Tribunal is satisfied that the applicant’s answers were generally vague and generalised and lacking in details and were neither accurate nor true.
The Tribunal finds for the following reasons that the applicant’s account of his gang membership is not credible.
Firstly, the applicant was involved with the same group of friends before he went to [Country] in 2013 but had not been “forced” at that time to become a gang member. There is no evidence at all of what the applicant may have been doing with his group of friends before going to [Country] and how or why he re-joined them in late 2015 on the basis he was “forced” to involve himself in their activities.
Secondly, he recalled only one serious incident where he said he was involved with “looting and robbing” some houses in a village, where a fight erupted and a person was wounded. No other details were provided about that event, such as how many people were involved, how the fight broke out and between who, what he did and what happened. The applicant’s account of that event is generalised and does not reflect what might reasonably be expected of someone actually present, even though it occurred some years ago. It was the type of event where details would not easily be forgotten.
Thirdly, the fact it occurred in a village where the applicant says he was well-known to some of the villagers because he had been to school there, makes the account more incredible. The Tribunal finds on the limited information available that it is highly improbable that the applicant would seek to rob from people he knew well and who knew him or might recognise him and from a village where he had been to school. The fact he said that the gang was in “disguise” and escaped, but then afterwards that he was “recognised” and then reported it to police is not consistent with his account about the group generally, that no one knew who they were. There is no evidence of any police interest in the applicant as a result and the Tribunal rejects the claim that the applicant is “on a list”. The Tribunal is satisfied that the account by the applicant of that event is fabricated to support his refugee claim.
Fourthly, the applicant said he did not obtain any benefits from involvement with the gang, other than some food and accommodation. It is improbable that he would do things he believed were wrong, when advised not to by his uncle, and without any financial benefit and in circumstances where he said on returning from [Country] he “needed money”.
Fifthly, he said he stopped being involved “after a few months” when his uncle warned him not to do it. His level of involvement at that time with his friends who had introduced him was not made clear, but on his own statement was for a very short period as he said he had only been “pretending” to be involved but was not. The Tribunal rejects the applicant’s claim that he was involved with any criminal activity with the group, and that it is more likely that he had some friends who were in a group who told him things about what they did, which he has now repeated as if he were involved himself. His uncle did not approve of those activities when told about them by the applicant, and the more likely explanation is that the applicant accepted his uncle’s advice and was not involved.
The Tribunal gave the applicant an opportunity to better explain his involvement and elaborate on the details, informing him that the Tribunal had real concerns that what he said about being a member of a gang and feeling threatened was untrue. The applicant did not respond and did not ask for more time to provide information when invited to do so.
Sixthly, the applicant had demonstrated a willingness not to be concerned about the truth or factual accuracy, by signing what was put in front of him by the agent preparing his [initial] visa without regard to the contents. The applicant conceded that he never intended to arrive in Australia and [do something]. It was merely a means for him to travel to the country. Such a response reflects poorly on the applicant’s credibility as he admitted he was prepared to say whatever he was told to say, regardless of the truth, provided it achieved his objective. He agreed he had never contracted to [do something] as far as he was concerned, and knew nothing about that, even though he had signed [contract] and agreed it was his signature on the contract. Similarly, with the protection application the applicant answered “no” to character questions about whether he had been involved in criminal conduct or associated with a person, group or organisation so involved. He may not have fully understood or appreciated the contradiction to what he said in the application, or what was said for him by the friend helping him, when the application later asserts criminal gang involvement in answering the protection questions; but the applicant’s lack of care and awareness about the contents of the application reflects poorly on his honesty and credibility.
Seventhly, the Tribunal finds that the applicant was prepared to provide false information to mislead the Department when considering his [initial] visa application. The Tribunal finds on the available information that this was a serious breach of the applicant’s obligations to provide information to the Department which was truthful and correct, and which he had acknowledged in the application itself when signing it. The fact the applicant also showed no awareness whatsoever of the level of dishonesty involved and how he was implicated, also reflects very poorly on his credibility. The fact he said he did not know what the application involved or understand the paperwork and did not care about it does not lessen the applicant’s responsibility for the misinformation, which he provided willingly.
Eighthly, the available information does not provide any evidence as to the applicant being of any current interest to former gang members in his home country, Nepal. The events he describes happened many years ago. There is no evidence about the group or who it may still comprise, where they are located or what they are doing. His evidence is that his parents have asked him to come home. It is unlikely they would want him to do that, knowing his history, and if he was still at serious risk of harm.
Ninthly, the applicant says the gang leaders are now “in politics” and no longer operating as they were when he left Nepal in 2015. He says they are still influential, but provides no information to support that, such as who these people are, where they are, or to identify their current status. The Tribunal finds it is not satisfied on the evidence that any gang members are interested in the applicant for any reasons he has given and rejects the applicant’s claim that the former gang leader, who he says is now in politics, would have any interest in the applicant whatsoever.
Tenthly, the Tribunal asked the applicant about his current employment in Australia where he stated he has a good job earning $37 per hour and around $1300 net per week as [an Occupation 1]. The applicant stated that so long as he stays in Australia he will have work. The applicant said when he left Nepal in 2015, after returning from [Country] where he had lost his employment there with [a] company, he had no employment, no money and circumstances there were difficult. The Tribunal infers that the real reason the applicant seeks to remain in Australia is to continue his employment and earn an income which he cannot gain in Nepal.
When evaluating the chance of something occurring, such as group or ‘gang’ retribution, the weighing-up process ‘cannot be reduced to scientific precision’.[12] Ultimately, it will depend upon the entirety of the material placed before the Tribunal and to consider it against a test of what the ‘real’, as distinct from fanciful, ‘chance’ would bring.[13] The Tribunal finds that the applicant’s account of what happened to him and his involvement is nothing more than fanciful and designed to impress upon the decision maker that there is a real chance of him being harmed in the future by exaggerating the circumstances giving rise to his personal fears. The Tribunal rejects the applicant’s claims that it is probable he will be harmed if he returns to Nepal and assesses the risk of such harm as very low, based on the information produced.
[12]MIEA v Wu Shan Liang (1996) 185 CLR 259 at [293–295].
[13]MIEA v Wu Shan Liang (1996) 185 CLR 259 at [293–295].
Accordingly, the Tribunal finds for the reasons given that there is no real chance the applicant is at risk of being harmed if returned to Nepal now or in the foreseeable future.
Country information
The Tribunal referred the applicant to relevant country information about Nepal[14] and that he could safely relocate anywhere in Nepal should he wish to do so. Also, that if he were afraid to go to Nepal, India has an open border with Nepal which makes it safe for him to travel anywhere he might choose to go. The applicant responded that there is “no security” in India so “why should I go there?” and he believes gang members would follow him. He also stated that no matter what the DFAT report may say, as there is a “difference between written statement and reality” he would not be safe and that “no country” will protect me. He said the reality is also that Nepalis are discriminated against. He was asked what inquiries he may have made and responded he had not made any himself, but his friends working there have told him they are “discriminated” and can only do low level work and he does “not want to go there”.
[14] DFAT Country Information Report - 1 March 2019.
The Tribunal notes that the DFAT report states:
the overall security situation throughout Nepal has dramatically improved since the end of the conflict. However, poverty, unemployment, weak rule of law and a culture of impunity are causes of insecurity in Nepal. Recent elections including in November 2017 were affected by violence including political candidates being shot at, improvised explosive devices and landmines being planted and violent protests. Political protests and demonstrations occur regularly and can turn violent without warning. Political parties have been known to enforce strikes (bandhs see Private Sector/Business Community), which can close down transport and business operations for extended periods, although these have occurred less frequently in recent years at [2.41].
It further states that:
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 (at [3.41]); and as to State protection:
Nepal Police are responsible for enforcing law and order across the country. The separate Armed Police Force is responsible for combating terrorism, providing security during riots and public disturbances, assisting in natural disasters, and protecting vital infrastructure, public officials, and borders.
Police effectiveness is limited by a lack of resources, corruption, nepotism and a culture of impunity, particularly among low-level officers. Nepali police agencies are hindered by a lack of adequate transportation, training, and equipment. Many crimes in rural areas occur with inadequate police intervention or follow-up [5.6–5.7].
The Tribunal finds and accepts that there may be some risk that crimes can occur without adequate police intervention and perhaps against the applicant personally, but that the risk to the applicant is no more than that faced by millions of other Nepalis.
The Tribunal put to him that if he returned to India there was no real risk that he would be harmed in that country. The applicant however said he will not go there because he fears the gang. The Tribunal rejects that claim entirely and finds the applicant faces a very low risk of being harmed by the former gang were he to return to India instead of Nepal.
Conclusion
Refugee
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).
Complementary protection
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). For the same reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
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.
Alan McMurran
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 693

28 January 2022

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