1709985 (Refugee)

[2022] AATA 5089

1709985 (Refugee) [2022] AATA 5089 (18 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709985

COUNTRY OF REFERENCE:                   Nepal

MEMBER:David McCulloch

DATE:18 November 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 18 November 2022 at 5:07pm

CATCHWORDS

REFUGEE – Protection Visa – Nepal – Hindu faith – actual and imputed political opinion – a member of a particular social group – single women who have had children outside of marriage – an honest and credible witness – societal mistreatment and discrimination directed towards unmarried single mothers – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 36, 46, 65, 91, 499

Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 13 April 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Nepal, applied for the visa on 14 December 2015. The delegate refused to grant the visa.  

3. The applicant appeared before the Tribunal on 26 September 2022 at 9:30 am to give evidence and present arguments. The applicant communicated in English.

4. The Tribunal conducted a second hearing to hear further from the applicant again as well as to take evidence from her mother, [name] who was visiting the applicant and her brother in Australia. The hearing took place on 14 November 2022 at 9:30 am. While the applicant communicated in English, her mother communicated with the use of an interpreter in the Nepali language who attended the hearing by telephone.

   Criteria for a protection visa

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

6. 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.

7. 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).

8. 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.

9. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of 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

10. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Nepal, 1 March 2019 and DFAT Country Information Report – India, 10 December 2020, a copy of each was provided to the applicant in advance of the first ­hearing.

    CONSIDERATION OF Claims and evidence

11. The issue in this case is whether, on accepted claims, the criteria for protection visa are met. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

12. The decision record indicates that the applicant was granted on 2 July 2007 a [temporary visa].  The applicant arrived in Australia on [date] September 2007. Further [temporary] visas were granted on 28 April 2010 and 15 April 2011. On 11 August 2011 the applicant was granted a [student] [visa]. Further [student] visas were granted on 26 March 2012 and 14 May 2014. On 2 June 2015 the applicant applied for a Temporary Work (Skilled) visa (UC-457).  This was refused on 16 November 2015. The application for the protection visa was made on 14 December 2015.

13. The application for the protection visa indicates the following. The applicant does not list her date of birth but indicates that her Nepalese citizenship was acquired on [date] June 2006. The applicant has never been married or in a de-facto relationship. The applicant speaks, reads and writes Nepali, Hindi and English. The applicant indicates having parents who were born in Kathmandu, Nepal. The applicant has a brother who was born in [year] in Kathmandu, Nepal who is an Australian citizen and lives in Australia. The applicant has a daughter who was born on [date] and who is indicated to reside in Australia and to be stateless. The applicant indicates that every second day she talks to her mother in Nepal by phone. The applicant studied [a grade] in Nepal up until February 2007. The applicant studied [a grade] at [a school] in Australia finishing in September 2008. The applicant thereafter studied for a [qualification] in [City 1] finishing in August 2009. The applicant studied a [qualification] from February 2010 until May 2012. The applicant studied a [qualification] in Melbourne from May 2012 until April 2014.  The applicant studied a [qualification] from May 2014 until May 2015. The applicant lists no addresses lived at in Nepal, but provides three addresses lived at in Australia in [named state]. The applicant from November 2008 until April 2013 worked at [workplaces]. From April 2013 until May 2015 the applicant worked in [a field]. From that time until the time of the application the applicant was not employed.

14. In the application form, the applicant writes as to her claims for protection but indicating that she has prepared a more detailed statement which will be provided. No further statement was provided from the applicant other than from a third party as detailed below. In the application form the applicant says the following in relation to what she thinks will happen to her if she returns to Nepal. She refers to being a single unmarried mother and indicates that the situation of the Nepalese community is complex and cannot be explained with a single paradigm.  She refers to abuse by economic and caste variations.

15. In terms of harm experienced in Nepal the applicant refers to social and economic disadvantage being regarded as abuse. In terms of help sought in Nepal the applicant indicated that women in her circumstances do not receive any help. Because of cultural and social status the applicant did not seek help. In Nepal having a baby without marriage is a big sin.

16. The applicant indicates that she found out she was pregnant at [a late stage]. She was very stressed and contacted a [support] service [who] helped her with her pregnancy from August 2015. The applicant comes from a Hindi background and is well-known in [City 1]. The applicant indicated to her support worker that she cannot stay in [City 1] so she stayed at her place for about 12 days. The applicant was hiding from the Nepalese community. The applicant was then taken to [a region]. The support worker visited the applicant, and she went to Melbourne and stayed at [an organisation] until the baby was born.

17. The applicant indicates that Nepalese society does not look after single mothers and she would not be accepted by any caste.  She can only beg and sit at temples for food.

18. Provided to the Department was a statement from [Ms B], President of [an organisation]. The statement reads as follows (corrected for spelling and grammar):

    ·     [Ms A] came to Australia on a [Passport] in 2007, with her parents and is well-known by the Nepalese community in [City 1]. Her parents returned to Nepal in 2011.

    ·     The family practises the Hindu faith which is strictly adhered to in Nepal. I have some knowledge of the Hindu faith as my former daughter-in-law was of the Hindu faith; although my daughter-in-law grew up in Fiji where Hinduism is not quite as strict, it has similar restrictions.

    ·     Her mother is of the Brahmin cast, which is the ‘priest caste’, and her father is of the Kshatriya or warrior caste. These are the first and second castes in Hindu and this family would hold superior positions in the community.

    ·     It would bring great shame upon the family if anyone knew that the daughter was an unmarried mother.

    ·     [Ms A] has recently disclosed this to a mother who responded that she must not tell her father or her brother, who is either a permanent resident in Australia or has Australian citizenship.

    ·     If she were to return to Nepal with her daughter [Miss C], she would not be received in her father’s house and would be ostracised by the community.

    ·     She would be reduced to begging at the temples, which ultimately leads to a life of prostitution.

    ·     I have been assisting [Ms A] since she first called the [organisation] on [date] August 2015 when she was [pregnant].

    ·     [Ms C] was involved in a relationship with the father of the child three years, and was promised marriage. He has not honoured this promise. It now appears that he either gave a false name or date of birth, as he could not be traced by Immigration or [named University], which he apparently attended.

    ·     [Ms A] sent him an email on [date], the day her daughter [Miss C] was born at [a] Hospital in Melbourne and he telephoned her with no caller ID showing on the call. He advised [Ms A] that he still loved her, but they could not keep the child. She has been unable to contact him since that date.

    ·     Prior to her confinement, [Ms C] had commenced the adoption [process]. [Ms A] cared for the child for [a short period] after her birth. She then placed her in foster care and returned to Melbourne.

    ·     Over the next [number] days, [Ms A] experienced a profound sense of loss and realised that she could not continue with the adoption process. During that time she received advice from the [immigration] officers that her 457 visa had been refused, and applied for a protection visa as this was her only option and her bridging visa was extended.

    ·     Both [named organisation] and the Office of Victorian Births, Deaths and Marriages tried to contact the child’s father on the last email address that [Ms A] provided, but received no response. Consequently, he is not listed on [Miss C]’s birth certificate.

    ·     [Ms A] is currently living at a [Centre] in [Town 1] New South Wales and is highly thought of by [other] residents.

    ·     I have the highest regard for [Ms A], and regard her as an adult daughter.

    ·     I strongly support her application for a protection visa.

19. The Tribunal notes the following evidence of relevance given by the applicant at the interview with the delegate which took place on 5 July 2016. The applicant communicated in English.

20. The applicant’s father had worked at [Workplace 1] for four years. He did [specified work]. The applicant’s mother worked in Australia as a [occupation]. The applicant talks to her parents regularly in Nepal where they are retired. The applicant’s brother returned from Australia to Nepal to look after the father who was hospitalised. He ordinarily lives in Sydney.

21. It was put to the applicant that it appeared that evidence of the relevant job for the purpose of the 457 visa looked fraudulent.  The applicant indicated that she had no comment. The applicant’s representative at the interview indicated that the applicant had been given bad advice.

22. The applicant indicated that the father of the child had been known by the applicant for three years. They were boyfriend and girlfriend. She has no evidence the relationship. He is from India and Sikh.  The applicant’s brother knew of the relationship but does not comment or get involved. The applicant’s mother knew but her father did not.

23. The applicant attempted to terminate the pregnancy but was told that it was too late in the pregnancy to do so. The applicant told her mother [of] the baby after she had had it. The applicant’s mother told her not tell her father and brother. This is because they would judge her because she was not married.

24. The applicant indicates that if she returns to Nepal she will be without support with no husband and have a child without a father. She does not know how to raise the child. The applicant’s parents will be under pressure for having an unmarried daughter with the child. The applicant reiterated that her father does not know about the child.

25. The applicant indicated that she would not be able to go to her home in Nepal and will not have parental support and will be judged by everyone. The applicant indicates that her parents will not look after her daughter. The applicant indicates that her daughter does not have Nepalese citizenship and will be stateless.

26. The delegate notes that judging may not constitute serious harm. The applicant indicates that as a result of Hindu culture her father does not support her and people judge.

27. The applicant was asked how she would support herself in Nepal and she indicates that she does not know how she can work or where to start.

28. The applicant refers to the assistance she received from [Ms B] in relation to the pregnancy and told her that she could not live in [City 1] because her parents used to work at the [Workplace 1]. She stayed at [Ms B]’s place for 10 days and then moved to Melbourne to explore adoption and stayed a month and saw a counsellor. The applicant changed her mind about the adoption. However, she needed to give the child to foster care for a month which was a difficult time. During that time it was suggested that she apply for protection. The applicant lived with her brother for that one month. Her brother did not suspect anything in relation to the birth.

29. The applicant indicates that everyone is nice in [Town 1] and she does not pay rent and there is a doctor. The applicant indicates that she has not thought about organisations that might assist her in Nepal but it would be difficult. If she had to find work she would. She asks how otherwise to support her baby but without proper work experience and made references it would be difficult.

30. The applicant was asked if she fears her family will harm her. The applicant indicates that her mother knows about the baby but has indicated that if the applicant ever has to tell her father about the baby not to let him know that her mother had known earlier. Fear of the father comes from culture and societal pressure. He is the head of the family and men rule.

31. There were discussions with the applicant about her ability to live in India. She indicated that she is not aware of her entitlement to live there but she may end up being a beggar or prostitute without a support network. The support network is needed because she cannot support the baby on her own. There would not be a job other than prostitution.

32. The applicant fears being gossiped about, having no man in the family.  She refers to difficulties, including entering work and looking after her child.

33. Provided to the Department were the following:

    ·     a letter from [a] Parish Administrator, [dated] 1 July 2016 indicating that the applicant lives within the jurisdiction of the church and that the writer has known the applicant since September 2015 when she moved to [Town 1].  The applicant is involved in [a] program for students once a week. She also took part in the primary school’s [a special day] program this year. She is committed to sharing her time and talents with the Australian community.

    ·     a letter dated 4 July 2016 from [a couple] who indicated that they live in the Catholic community and one of their aims is to look after women with difficult pregnancies. The writer has known the applicant since September 2015. The applicant has been taken into the community and supplied with accommodation and other needs for the child. At the moment the applicant is attending lessons twice a week to improve language. It attests to the applicant being reliable, honest and caring and that she will fit in well in the society.

    ·     a letter from [a doctor] of [named] Medical Services dated 3 July 2016 who indicates she has known the applicant for 12 months. It refers to the ability of the applicant to fit in with the community. It indicates that the applicant was required to move to the regional area to seek sanctuary where she would not be recognised by her own relatives and the Nepalese community. The applicant has taken all of this in her stride, cheerfully addressing issues. She has shown resilience. The community is very supportive of the applicant. She is popular and well liked. The applicant would readily integrate into the community.

34. Provided to the Tribunal on 18 September 2022 are the following articles:

    ·     Surendra Tiwari and Sabitri Bhattarai (Kaphle), ‘Social Status of Nepalese Single Women and Perception on Remarriage: A Case Study of Pokhara Lekhnath Metropolitan City’ (2017) 3(1) School of Development and Social Engineering, Phokara University 49. The article is based on a study out of 157 respondents, 128 of whom are women. It explores major problems faced by single women such as economic hardship, family violence, freedom, socio-economic deprivation, autonomy in decision making, and so on. Nepalese, as a patriarchal society, puts women’s status under men, making them more vulnerable and marginalised in the society. Single women experience societal marginalisation in ways that single men do not experience.

    ·     Gopal Sharma, ‘Nepali single mothers say law change would make children stateless’, Reuters (online, 9 January 2015) The article recalls several stories from individuals whose children cannot obtain a passport or other identity cards after being abandoned by their fathers, without evidence that their fathers are Nepalis. The article stated that these restrictions resulted from the change in the country’s Constitution.

    ·     Anita Shrestha, ‘Children of single mothers deprived of citizenship’, The Himalayan (online, 7 February 2019) The article recalls several stories of individuals who could not obtain citizenship (or proof of citizenship), birth certificates because they did not know the identity of their fathers or their fathers were foreigners. The article argues that the new Constitution amendment discriminates against women.

    ·     Anonymous author, ‘Children of single mothers in Nepal might still face problems in getting citizenship’, South Asia Monitor (online, 10 June 2021) The article states that the Nepali Government has addressed two key issues which include citizenship by descent to the children of a Nepali mother, whose father’s whereabouts are unknown, through an amendment Bill to its citizenship laws. It goes on to point out flaws in the Bill that are inherently biased towards women, because the amended rules still require a birth certificate of the children without fathers, which local authorities do not often issue. It also requires a recommendation letter by locals, the kind of which is unlikely to be issued by locals.

    Independent information

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

   Women

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   3.75 DFAT assesses that women in Nepal face high levels of societal and official discrimination and a moderate risk of violence. However, the experience of individual women varies. Women from poorer or lower-caste backgrounds experience a higher risk of discrimination and violence.[1]

   [1] DFAT, Country Information Report – Nepal, 1 March 2019, pp. 22–23.

   …

   INTERNAL RELOCATION AND RELOCATION TO INDIA

   5.17 The 2015 Constitution guarantees the freedom for Nepalis to move and reside in any part of Nepal. However, laws can be passed to curtail this freedom in the public interest or to maintain harmonious relations between castes, tribes, religions or communities.

   5.18 Relocation is a common experience for Nepalis. Millions travel each year to other countries seeking employment and other opportunities and to seek economic opportunity. Over half of all Nepali households have at least one family member currently overseas as a migrant worker or living in Nepal as a returnee and therefore relocation is a normal, expected circumstance of life. The open border arrangement with India, as per the 1950 India-Nepal Treaty of Peace and Friendship, allows large numbers of Nepalis to travel to and from India each year or reside in India on a long-term basis. Large numbers of Nepalis also move within the country. The populations of major urban centres such as Kathmandu have increased substantially in recent decades. While Nepal is currently one of the least urbanised countries in the world, it has one of the world’s fastest rates of urbanisation, demonstrating significant internal movement.

   5.19 Kathmandu in particular, but also other large urban centres such as Biratnagar and Pokhara, today reflect the significant ethnic, religious and caste diversity of Nepal and as such provide accessible opportunities for relocation within Nepal.

   India-Nepal Treaty of Peace and Friendship: Rights of Nepalis in India

   5.20 There is a long history of free and unregulated movement of people between India and Nepal. The Anglo-Nepal War of 1814 and the subsequent treaty of peace signed between the British East India Company and Nepal in 1816 resulted in the first delineation of the border. The British maintained an open border to facilitate the free movement of people and goods between the two countries and a number of colonial era agreements were made to this effect.

   5.21 India and Nepal agreed their Treaty of Peace and Friendship in 1950 (the Treaty). At the time, the Treaty was intended to maintain the special ties between Nepal and India that had existed in the British colonial era. Nepal also had security concerns following the Communist Revolution in China in 1949.

   5.22 Article 7 of the Treaty provides for each country ‘to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature’. The Treaty therefore provides for freedom of movement across borders between the two countries and equal rights in the participation in the economy and legal system. India has waived its right to reciprocity under the Treaty. Close collaboration between the two countries on foreign affairs and defence policy also occurs under the Treaty.

   5.23 According to the Bureau of Immigration in the Indian Ministry of Home Affairs, Nepali citizens entering India by land do not require a passport or visa to enter India. Nepali citizens entering India directly by air do not require a passport or visa but are required to establish their Nepali citizenship through the production of a: Nepali passport; Nepali citizenship certificate; voter’s identification card issued by the Election Commission of Nepal; or photo identity document issued by a Nepali mission in India. Children below the age of 10 are not required to produce Nepali identity documents, however children aged 10 to 18 must do so but if the aforementioned documents are not available, may elect to produce a photo identity document issued by a school principal. Nepalis travelling to a third country from India would require a passport.

   5.24 Large numbers of Nepalis travel to India every day. Many Nepalis enter India by air; there are regular daily flights between Kathmandu and major Indian cities. The land border between India and Nepal is long and readily accessible and many people cross it every day. Many people use formal border crossings, however these are not always staffed by immigration officers. The infrastructure at border crossings can be very poor; some border posts are little more than tents. Others simply walk across the large unguarded sections of the border and such undocumented border crossings are common. .

   5.25 A large number of Nepalis live and work in both the formal and informal sectors in India, including a substantial community in New Delhi. It is impossible to calculate overall numbers because of the large and regular movement of Nepalis into India. Nepali citizens in India are not required to register their presence in India with the Government of India. According to the Foreigners Division in the Indian Ministry of Home Affairs, only those foreigners visiting India on long-term visas (this does not include Nepalis) are required to complete this formality with the Foreigners Regional Registration Office.

   5.26 In order to participate formally in Indian society (e.g. gain formal employment, access formal health and education services, purchase property, etc) Nepalis must, like Indian citizens and other nationalities resident in India, obtain an identification card, known as a ‘PAN card’ (PAN stands for ‘Permanent Account Number’). This card, issued by the Indian Income Tax Department, acts as an informal type of identification, but also allows the card-holder to open a bank account, receive a salary and conduct high-value transactions such as asset sales. In order to obtain a PAN card, an applicant must provide: a completed application form; recent colour photographs of themselves; proof of identity and address; and payment of INR 107 (approximately AUD 2.20). It is not mandatory to have a PAN, however over 170 million have been issued notwithstanding that there are only approximately 30 million income tax-payers in India; this demonstrates the widespread use and accessibility of the PAN cards.

   5.27 People travelling to India for formal employment often receive assistance from their employer in obtaining a PAN card before entering India, but PAN cards can also be applied for individually after entry into India. DFAT assesses that so long as Nepalis are able to produce the relevant information, they would be able to obtain a PAN in the same way as Indian citizens do.

   5.28 Credible sources in India advised DFAT that, in practice, most Nepalis choose to remain in the informal sector and do not obtain formal identification documents, including the PAN card, while in India. While this limits the ability of these people to gain employment in the formal sector, buy property or open a bank account, DFAT observes that this makes their position no different to Indians who work in the informal sector who do not have a PAN.

   5.29 Aadhaar is a 12 digit unique number issued by the Unique Identification Authority of India (UIDAI). Aadhaar, meaning ‘foundation’, is intended to serve as proof of identity rather than citizenship or nationality. While Aadhaar is not mandatory, it can be used to facilitate access to Government services and welfare. Increasingly, an Aadhaar is required to access services such as bank accounts, school enrolment, obtaining a SIM card and online transactions such as ride-sharing services. Holding an Aadhaar is not a guarantee of rights, benefits or entitlements.

   5.30 To obtain an Aadhaar, a person must provide their name, date of birth or age, gender and address. A system of introducer-based enrolment also exists in the absence of valid proof of identity and address documentation. The introducer is appointed by a Registrar. The applicant must also submit to biometric collection in the form of ten fingerprints, an iris scan and a facial photograph. Aadhaar is not proof of citizenship or residence. Any person residing in India can obtain an Aadhaar card after 182 days of residence. Illegal entrants are ineligible to obtain an Aadhaar, however in practice there is no verification against entry records.

   5.31 The Aadhaar scheme commenced in 2009; by early 2016 it was reported that almost 93 percent of India’s adult (over eighteen) population had an Aadhaar. DFAT assesses that Nepalis in India would, so long as they were able to provide the necessary information and biometric data, enjoy the same access to Aadhaar as Indian citizens and other residents of India.

   5.32 There is no associated algorithm connected to the issuance of Aadhaar to identify details such as age, sex, location of birth or caste of the card-holder. This is a deliberate act by the UIADAI authorities to avoid discrimination.

   5.33 DFAT is aware of only one confirmed instance of a Nepali in India being deported. In 2002 during the time of the Nepal civil war, Bam Dev Chhetri, a Nepali resident in India who was active in Abnes (an organisation advocating for the rights of Nepalis in India and who was alleged to have links with the Maoists), was deported (along with five others active in Abnes). The deportation occurred just prior to a visit to India by the then King of Nepal and followed shortly after a visit to India by the then Nepali Prime Minister during which India was requested to curb the activities of Abnes. A subsequent High Court of Delhi case found the deportation of Chhetri to be lawful. This decision has been criticised by Indian civil society on the grounds that it disregarded India’s obligations under the Treaty and for a failure to follow previous Indian court decisions which said that the Government did not have an unfettered right to deport people from India.

   5.34 Deportations of Nepali citizens from India to Nepal are not impossible, but very uncommon. One incident occurred in 2010, when police in Pune issued a deportation order against the estranged wife of a Nepali politician. The Maharashtra Government suspended the deportation order. On the basis of these two cases, and given the significant numbers of Nepalis living in India who otherwise have not experienced deportation or the threat of deportation, DFAT assesses that there is an extremely low risk that any Nepali would be deported from India and that in the event that such an order was issued, the Nepali would have access to the Indian legal system on the same terms as Indian citizens do for judicial review of the decision.

   5.35 Indians living in Nepal are able to participate in Nepali society and enjoy the same rights as Nepalis, with the exception of being able to join the Nepali public service. The border is open and Indians may freely come and go from Nepal. DFAT is not aware of any patterns of systemic discrimination against Indians in Nepal.

   TREATMENT OF RETURNEES

   5.36 DFAT is not aware of credible evidence of mistreatment of returnees. There is a large, generally efficient movement of people in and out of Nepal each year. On this basis, DFAT assesses that returnees are unlikely to suffer any social stigma upon their return to Nepal or to suffer adverse treatment by their Government.

   5.37 A large number of failed asylum seekers have returned to Nepal from various countries with host-government or international organisation assistance. DFAT is not aware of any difficulties being experienced by these failed asylum seekers on the basis of their asylum seeking history or otherwise.[2]

   [2] DFAT, Country Information Report – Nepal, 1 March 2019, pp. 31–33.

2. Albeit from 2012 the following research undertaken by the Refugee Review Tribunal[3] is informative as to the status of divorced women and single mothers in Nepal. The Tribunal considers that the information below is informative as to societal discrimination against the applicant as a single woman with a child out of wedlock (underlying added):

   [3] Refugee Review Tribunal, Country Advice Nepal – NPL40796, 24 August 2012

   Please provide any recent information on the status of separated/divorced women and single mothers in Nepal. She is from the Brahmin caste.

   According to a paper presented at the 2012 Population Association of America[4] Annual Meeting, despite recent legal improvements, divorce remains relatively uncommon in Nepal, and divorced women continue to be significantly stigmatised and disadvantaged.[5] The Laligurans Women Skill Development Centre website states that there is a “strong stigma” attached to divorced women in Nepal, and women can find it difficult to re-marry in conservative rural communities.[6]

   Nepalese women are reportedly afforded little legal protection upon divorce. If a husband initiates a divorce against his wife, and if she has no other means of supporting herself, then he must provide financial support to her in accordance with his status and income; financial support is provided for five years.[7] The Nepal website refers to the financial support provided by husbands to their former wives as a meagre allowance, which women have accepted “probably because there was no other option for them”. Divorced women were reportedly considered to be ‘discarded’, and unwanted by society. The article also claims that families considered them to be an embarrassment, and parents often took their daughters back out of pity.[8]

   According to a 2012 paper on divorce in Nepal, women “still face bleak prospects for life after marital dissolution”. Legal changes may remove some disincentives to divorce, in that women now have theoretical access to improved property rights and custody arrangements, and that men can no longer divorce their wives on the grounds of infertility.[9]

   In 2010, the Asian Development Bank (ADB) reported that a number of discriminatory legislative provisions regarding divorce were repealed, increasing a woman’s entitlements following divorce. Women were granted the right to their husband’s property after divorce, and the provision of receiving monthly or yearly support in lieu of property. Women are also now allowed to divorce their husbands on the grounds of rape, while a man can no longer divorce his wife due to her inability to bear a child. However, some discriminatory provisions remain on whose ground only the husband can divorce. For example, a husband may divorce his wife if he can prove that she has a sexually transmitted disease, or that she is having an affair. The ADB makes the point that, in Nepalese society, it is unlikely that the husband’s accusations would be questioned by others, and the wife would not be given the opportunity to disprove such accusations.[10]

   Limited information was located specifically relating to the social status of divorcees and caste. According to an article posted on the Swiss-based RAO Online travel website, Hindu divorced women may face social stigma, and a divorced woman from a high caste reportedly has little chance of remarriage within her socioeconomic group.[11]

   Limited additional information was located specifically regarding the status of single mothers. According to The Continuum Complete International Encyclopedia of Sexuality, sexual relationships outside of marriage are generally disapproved of and early arranged marriages sometimes occur to “protect a girl’s reputation, which can become tarnished by public association with a boy”.[12] A 2004 article in Indigenous Affairs stated that while there was an increasing number and level of social acceptance for single mothers, they still experienced a significant degree of social stigma:

   Single mothers (unwed mothers and women deserted by their husbands) are not given the support they need, and society often harbours negative attitudes about them despite the suffering some have gone through. In the past, women who got pregnant out of wedlock, including in rape cases, were forced to marry.[13]

   Sources suggest that single women, including single mothers, are likely to experience economic hardship. In 2007, a UK based project that had been working to support single mothers in Eritrea for twelve years expanded to the Nepalese Himalayas “because many single mothers are also living under very difficult – often degrading circumstances in remote villages”.[14] However, it is noted that Nepal is ranked 157 out of 187 states on the United Nations’ Human Development Index, and that a high proportion of the population is therefore likely to live in difficult circumstances.[15]

   Regarding employment opportunities for women, the Laligurans Women Skill Development Centre reports that while women account for approximately 40 per cent of the total work force in Nepal, they reportedly tend to occupy lower status jobs, and are paid less than men.[16] In an August 2011 report, the UN Committee on the Elimination of Discrimination Against Women noted “the high proportion of women [employed] in the informal sector; and the widespread prevalence of sexual harassment in the workplace”.[17]

   [4] According to their website, the “PAA is a non-profit, scientific, professional organization that promotes research on population issues”. See

   [5] Jennings, E 2012, Marital Dissolution in Nepal: The Influence of Spouses’ Perceptions of Marital Dynamics, Paper presented at the 2012 Population Association of America Annual Meeting, Princeton University website < Accessed 26 March 2012 <Attachment>

   [6] Laligurans Women Skill Development Centre 2006, Women in Nepal < Accessed 16 October 2007 <Attachment>

   [7] Laligurans Women Skill Development Centre 2006, Women in Nepal < Accessed 16 October 2007 <Attachment>

   [8] Nepal n.d., Life After Divorce in Nepal < Accessed 23 June 2011 <Attachment>

   [9] Jennings, E 2012, Marital Dissolution in Nepal: The Influence of Spouses’ Perceptions of Marital Dynamics, Paper presented at the 2012 Population Association of America Annual Meeting, Princeton University < Accessed 26 March 2012 <Attachment>

   [10] Asian Development Bank 2010, Overview of Gender Equality and Social Inclusion in Nepal, pp.10, 16–17 < > Accessed 11 February 2011 <Attachment>

   [11] RAO Online n.d., Patriarchy and Marriage < Accessed 23 June 2011 <Attachment>

   [12] Schroeder, E 2004, ‘Nepal’, in Francoeur, R T & Noonan, R J eds., Continuum Complete International Encyclopedia of Sexuality, Continuum International Publishing Group, New York, Google Books, p.716 < Accessed 15 August 2012 <Attachment>

   [13] Lasimbang, J 2004, ‘Indigenous Women and Activism in Asia: Women Taking the Challenge in Their Stride’, Indigenous Affairs, No. 1-2/04, p.45 < Accessed 17 August 2009 <Attachment>

   [14] Esel-Initiative e.V. n.d., The Project < Accessed 16 August 2012 <Attachment>

   [15] ‘Nepal improves in human development index’ 2011, The Himalayan Times, 2 November < Accessed 22 August 2012 <Attachment>

   [16] Laligurans Women Skill Development Centre 2006, Women in Nepal < Accessed 16 October 2007 <Attachment>

   [17] UN Committee on the Elimination of Discrimination against Women 2011, Concluding Observations of the Committee on the Elimination of Discrimination against Women – Nepal, UNHCR Refworld, 11 August < > Accessed 20 March 2012 <Attachment>

1. For the purpose of this matter, after the first hearing, the Tribunal obtained the following research from the Country of Origin Information Services Section of the Department of Home Affairs dated 9 November 2022:

   Please provide information as to the level of stigma, mistreatment and discrimination suffered by a single unmarried women with a child and limited family support in Nepal, particularly in Kathmandu.

   Country information indicates that stigma, mistreatment and discrimination against single women, particularly unmarried women, remain prevalent in Nepal. Single and unmarried women with children often face various obstacles in obtaining birth certificates or citizenship with local authorities or by certain procedural issues. There are reportedly hurdles in the current citizenship law for children to acquire citizenship by descent and for a child born to a Nepali woman but whose father is unidentified. In July 2022, an amendment to citizenship law was passed through both houses of the Nepali parliament but the head of state, for unknown reasons, has not authorised the amendment into law even after the scheduled deadline. There are some helpline and support services available to women who experience gender-based violence, but country information on the extent of its availability and accessibility for such support and services was not located.[18] Country information indicates, however, that some women have become activists to try to help others in similar circumstances after their experience of being a widow themselves.

   [18] Sources consulted include domestic and international media outlets, government and non-government reports, CISNET, and targeted internet searches.

   Stigma, mistreatment and discrimination

   A research paper published by Munich Personal RePEc Archive (MPRA) in November 2019 stated that due to various reasons, there has been growth in single women in Nepal.

   Population Census 2011 and Demographic Statistics 2019 shows 6.7 percent (2 million) single women as widow out of total population (29.9 million) and 44 percent single women as household head (2.3 million) out of 5,423,297 households (CBS, 2019).[19]

   [19] ‘Measurement of Vulnerability of Single Women in Nepalese Households: Query about inclusion or exclusion’, Raghu Bista, Munich Personal RePEc Archive (MPRA), 1 November 2019, p. 3, 20221103134922

   The journal article assesses that despite constitutional and legal provisions to guarantee women’s rights to resources, property, opportunity, decision making processes and so on, ‘single women within household is identified as a hidden, sensitive and serious issue.’[20]

   [20] ‘Measurement of Vulnerability of Single Women in Nepalese Households: Query about inclusion or exclusion’, Raghu Bista, Munich Personal RePEc Archive (MPRA), 1 November 2019, p. 3, 20221103134922

   Despite existed single women, it was fully covered as non-issue in the closed Nepalese family and society. Over long decades, such issue existed as non-issue. Therefore, it was not much more talked and not considered as a big issue because of its hidden domain, social codes and practices and misunderstanding on its multidimensional factors. If we observe status of single women, they are blamed as husband eaters and stigmatized as inauspicious and witches (Thapa, 2010).[21]

   [21] ‘Measurement of Vulnerability of Single Women in Nepalese Households: Query about inclusion or exclusion’, Raghu Bista, Munich Personal RePEc Archive (MPRA), 1 November 2019, pp. 4–5, 20221103134922

   A March 2019 Department of Foreign Affairs and Trade (DFAT) country information report on Nepal stated that generally Nepali women are vulnerable to violence in many forms,[22] face discrimination by the law and the society, but ‘[s]ingle women and widows are particularly vulnerable’.

   [22] DFAT Country Information Report – Nepal, 1 March 2019, Sect. Women, pp. 22–23, 20190301094546

   Nepali women rarely receive the same educational, employment and economic opportunities as men. Girls in particular are vulnerable to early marriage which disrupts or ends their formal education. Single women and widows are particularly vulnerable. While a widowed woman is legally entitled to her late husband’s estate, many widows are unaware of their rights or unable to enforce them due to traditional attitudes and weak legal protections.[23]

   [23] DFAT Country Information Report – Nepal, 1 March 2019, para. 3.71, p. 23, 20190301094546

   A 9 February 2020 Global Press Journal article reported that government or non-government organisation (NGO) data on women who have given birth out of wedlock in Nepal is not available. The article stated that a 2014 Guttmacher Institute study, which was the most recent data available at the time, estimated that ‘some 323,000 women had abortions that year among women between the ages of 15 and 49.’ The article described stigma, mistreatment and discrimination suffered by a single unmarried women with a child in Nepal as below:

   Many women who give birth outside of marriage are ostracized by their communities and forced to leave their villages. In some rural areas, a family may be so desperate to find a husband for a single pregnant woman that they will marry her to an older widower or other man typically considered unsuitable.[24]

   [24] ‘Law Assumes Marriage so Children Born out of Wedlock Receive Rights’, Kalpana Khanal, Global Press Journal, 9 February 2020, 20221103121029

   The article reported the case of Surakshya Rawal[25] as follows:

   [25] The article described Surakshya Rawal as a 33-year-old woman who was raped at 16 and later was forced to have an abortion, and married off to an alcoholic. See ‘Law Assumes Marriage so Children Born out of Wedlock Receive Rights’, Kalpana Khanal, Global Press Journal, 9 February 2020, 20221103121029

   Even though Rawal’s pregnancy was terminated, she suffered severe social consequences anyway.

   Three months after her abortion, she was married off to an alcoholic. “Despite knowing all about me, [his] family agreed to the marriage, with the hope I could correct his bad habits,” she says.

   “After the marriage, my husband and his family members started to taunt and beat me, saying that I was a characterless girl because I had affairs with a boy,” she says.

   She says her husband sexually assaulted her, too.

   “He used to claw at my body,” she says. “If I said I wanted to sleep, he would beat me more. I used to leave the bed for work the next morning with bruises on my body.”

   Rawal had four children with her husband, who beat her at the mention of contraception. She says the year of sexual and physical abuse made her suicidal.

   She has attempted to take her own life multiple times.

   Now divorced, which carries further social stigma, Rawal says if her first pregnancy had been recognized by the state and society, she could have avoided a life of pain.

   “If the law was changed earlier, I would not have had to have an abortion,” she says. “I would have given birth to the child, even [if I had to] fight with society.”[26]

   [26] ‘Law Assumes Marriage so Children Born out of Wedlock Receive Rights’, Kalpana Khanal, Global Press Journal, 9 February 2020, 20221103121029

   An article on Saferworld[27] reported the case of an activist Basundhara Gaire, a widow of two children, who provided her opinions on the situation of women in Nepal as follows:

   [27] On its website, Saferworld states that ‘Saferworld is an independent international organisation working to prevent violent conflict and build safer lives. We work with people affected by conflict to improve their safety and sense of security, and conduct wider research and analysis. We use this evidence and learning to improve local, national and international policies and practices that can help build lasting peace. Our priority is people – we believe in a world where everyone can lead peaceful, fulfilling lives, free from fear and insecurity. We work in over 10 countries across Asia, Africa and the Middle East.’ See Who we are - Saferworld, accessed 8 November 2022.

   “Not just in Nepal but all over the world women are mistreated. For a single woman, the situation is even worse the way society looks down on them. I took up activism to transform such perceptions. For example, girls aren’t sent to school because the family considers it a waste of money to invest in educating a child who will go to live with her husband after marriage. Then there is the dowry system, and harmful attitudes such as refusing to cooperate in their women’s citizenship application process. They say women don't need citizenship, and as a result they cannot vote and their children cannot be enrolled in schools without the necessary documents.”

   … “Women often aren’t provided the necessary health care when they a seriously ill, and their families are reluctant to pay for expensive treatment. There was once a case where I helped a woman suffering from cancer. I took her to Bharatpur Cancer Hospital and argued for a 100,000 rupee waiver towards her treatment fee through the public health scheme. Yet her family were unwilling to put in the remaining amount. She died of breast cancer. I still have the death certificate with me. I often come across such cases.”

   In 2015, Basundhara became a widow which created stigma in the community, but inspired her activism. “[My husband] was a police officer during the Maoist insurgency. During his service, he was shot and wounded and the government did nothing for him. He used to say the government were nothing if they did not care for their wounded service men. In 2003, he left the police because they didn’t grant him any benefits. He became depressed, and six months later his mother passed away, and that was it.

   When he passed away, I had no hope to live again. I stayed under doctor’s observation for three and half months and my maternal family cared for me a lot. A year later I began to realise that there are many women who have suffered more than me and this inspired me to train as a social mobiliser.

   Now I don’t introduce myself as a single woman when I am traveling or working. Widowed women aren’t expected to speak with men, wear good clothes, and eat good meals. People often taunt me saying ‘Why does she dress up, for who?’… Don’t I have the right to choose what to wear? Why can’t I look beautiful?”[28]

   [28] ‘‘‘May the rights of women prevail”: activism in Nepal’, Saferworld, n.d. (accessed 8 November 2022), 20221108101813

   A 10 June 2021 South Asia Monitor article reported that although citizenship laws have been amended to grant Nepali citizenship to children of single mothers whose fathers can’t be traced, experts say potential beneficiaries may still find it difficult to get citizenship.

   However, legal experts pointed out flaws in the bill which, according to them, still appears inherently biased towards women. The amended rules still require the birth certificate of both, children of citizens by birth and children of Nepali mothers, whose fathers have not been identified, said Sabin Shrestha, who is the executive director of Forum for Women, Law, and Development

   In reality, he claims, local authorities don’t issue birth certificates to these children often. “The ordinance was discriminatory against women and did not recognize the independent existence of Nepali women,” he was quoted as saying by The Himalayan Times.

   There is also a requirement of issuing a recommendation letter by locals in case the father of children can’t be identified. He argued locals are unlikely to issue such recommendations given the prevailing patriarchal biases and stigma around the issue.

   On the basis of single mothers recorded in the country’s last census, a total of 680,533 children of Nepali mothers will be eligible to get Nepali citizenship now. However, certain procedural issues pointed out by experts might still keep them stateless.[29]

   [29] ‘Children of single mothers in Nepal might still face problems in getting citizenship’, South Asia Monitor, 10 June 2021, 20221103120638

   The United Nations Special Rapporteur on extreme poverty and human rights reported after a visit to Nepal that ‘births sometimes go unregistered as a result of stigma related to having an “unidentified father”’.[30]

   [30] ‘Visit to Nepal - Report of the Special Rapporteur on extreme poverty and human rights, Olivier De Schutter‘, United Nations Human Rights Council, 13 May 2022, p. 15, 20220712122903

   Citizenship law

   Nepal is one of twenty five countries that restrict women from passing on their nationality to their children.[31] Under Article 11(7) of the Constitution, a child born to a Nepalese woman married to a foreign citizen may acquire citizenship by naturalisation in accordance with the federal law if the child ‘has permanently resided in Nepal and has not acquired the citizenship of a foreign country’, provided that if the child’s parents are both Nepalese citizens at the time of acquiring citizenship, ‘such person born in Nepal may acquire the citizenship of Nepal by descent’.[32]

   [31] ‘Nepalese mum tells how unfair citizenship laws squander children’s futures’, Batha, E, Thomson Reuters Foundation, 27 June 2019, 20190708111548

   [32] ‘Constitution of Nepal [Nepal], 2015 (2072.6.3)’, National Legislative Bodies / National Authorities, 20 September 2015, CISEC96CF13837; See also: ‘Legal Status of Citizenship Law of Nepal‘, Forum for Women, Law and Development (FWLD), 1 November 2016, CIS38A80123661

   An 8 March 2020 Kathmandu Post article stated that a large number of children of unmarried women, or those whose fathers are foreign nationals, have been repeatedly denied citizenship:

   Over 5.4 million eligible individuals in the country do not have citizenship certificates as a consequence of constitutional provisions, laws, and regulations governing citizenship discriminated by the gender of the registering parent, according to the 2018 US State Department’s country report on human rights practices. Nearly a quarter of the population above the age of 16 is stateless. These include children of unmarried women or those whose fathers are foreign nationals, who have been repeatedly denied citizenship by local officials who claim they will only be able to accept citizenship applications in the mother’s name after the passage of the Citizenship Amendment Bill. The bill which was registered at the Parliament in August 2018 is sitting at the House Committee where members have been debating on provisions for nearly two years.

   Meanwhile, the children who are trying to obtain citizenship in their mothers’ names have been effectively told to put their lives on hold. Without citizenship, an individual cannot sit for national-level board exams, opt for university-level education, open a bank account or even seek formal employment. The discriminatory law has a direct impact on the equal status of women who cannot pass citizenship on to their children, as well as on issues relating to the children’s right to nationality, education and employment.[33]

   [33] ‘Nepali women are unequal by law’, Rana, J, Kathmandu Post, 8 March 2020, 20200310163610

   In late 2020, some United Nations appointed experts expressed their reservations over some discriminatory provisions proposed in the citizenship bill being debated in the parliament at the time.[34] It was reported that ‘[c]ivil society organisations and international human rights bodies have consistently highlighted that both the citizenship amendment bill and the Constitution of Nepal contain provisions that discriminate against women with regard to nationality and the ability to transmit citizenship through marriage and to their children.’[35] An article on Himalayan News Service, dated 7 March 2021, reported that ‘[r]ights activists Tulasa Lata Amatya, who is married to a national of Netherlands, said her husband has been living in Nepal with her for the last 37 years, but her three children have not been able to get Nepali citizenship. She said her three children, who initially had Nepali passport, were deported from Nepal to their father's country.’[36] Himalayan News Service reported that single women, and women who returned from foreign employment, among others, were at risk of being deprived of citizenship.[37] Children born to Nepali mothers and foreign fathers were only eligible for naturalised citizenship, which limits their full rights as a citizen, particularly in political participation to hold any of the highest elected or appointed government positions.[38]

   [34] ‘Nepalese mum tells how unfair citizenship laws squander children’s futures’, Batha, E, Thomson Reuters Foundation, 27 June 2019, 20190708111548

   [35] ‘UN rapporteurs concerned over proposed citizenship law’, Giri, A, Kathmandu Post, 26 September 2020, 20201021144002

   [36] ‘Many Nepalis deprived of citizenship certificate’, Himalayan News Service, 7 March 2021, 20210310161904

   [37] ‘Rights activists urge Parliament to pass citizenship bill’, Himalayan News Service, 11 November 2021, 20211112092948

   [38] ‘Nepal’s citizenship battles’, Lal, A, Himal Southasian, 17 November 2020, 20201118114158

   In July 2022, the Nepal Citizenship (First Amendment) Bill, 2022 was passed by the National Assembly.[39]

   [39] ‘Everything you need to know about new amendment to the Citizenship Act’, Ghimire, B, The Kathmandu Post, 25 July 2022, 20220725142050; the amendment to the Citizen Act, 2006 had earlier been endorsed by the House of Representatives. See ‘Are women not Nepali enough?’, Shrestha, S , Nepali Times, 29 July 2022, 20220802142526; ‘National Assembly passes first amendment to Citizenship Act’, Kathmandu Post, 28 July 2022, 20220802140728

   A 28 July 2022 Kathmandu Post article reported that the National Assembly endorsed the first amendment to the Citizenship Act 2006, which ‘allows a child born in Nepal to a Nepali woman and whose father is unidentified, to get citizenship by descent.’ However, the article states that ‘the applicant’s mother must make a self-declaration that the father “cannot be identified.” She will be liable for action if it is found that the claim that the father “cannot be identified” turns out to be wrong.’[40]

   [40] ‘National Assembly passes first amendment to Citizenship Act’, Kathmandu Post, 28 July 2022, 20220802140728

   Bimala Rai Poudyal, a member of the National Assembly, ‘said the bill is discriminatory against women’:

   She demanded that both the foreign women married to the Nepali men and foreign men married to Nepali women should be granted citizenship after they spend a certain number of years in Nepal. “The constitution guarantees equality to both men and women, but the bill is discriminatory and contradicts the constitution,” she said in the upper house. “The amendment shouldn’t be endorsed without further revision.”[41]

   [41] ‘National Assembly passes first amendment to Citizenship Act’, Kathmandu Post, 28 July 2022, 20220802140728

   Despite the bill being passed through the National Assembly on 22 July 2022, it was reported by various media as well as Human Rights Watch in September 2022 that the head of state of Nepal, President Bidhya Devi Bhandari, has refused to sign proposed amendments in the law.[42] The Supreme Court demanded an explanation of why the President had not authenticated the bill by the 20 September 2022 deadline, but there has not been any update on whether the bill would be sent back with some remarks or suggested changes.[43]

   A 24 October 2022 Law Library of Congress article reported that ‘[m]ost legal experts appear to hold that the president’s refusal to authenticate the bill goes beyond the ceremonial role of a head of state and violates the Constitution.’[44] The article mentioned main features of the new Amendment Bill as follows:

   Section 4(1) of Nepal’s Citizenship Act allows persons who are born within Nepal’s territory before April 12, 1990, and are permanently domiciled there to acquire citizenship by birth. However, their children have not been allowed to acquire citizenship by descent, and the amendment bill brings the act in line with the Constitution to allow such children to acquire citizenship by descent.

   According to reports, the amendment bill also grants citizenship by descent to a person who was born to a Nepali woman in Nepal and whose father is unidentified. However, the applicant’s mother must “make a self-declaration that the father is not identified. She will be liable for action if it is found that her claim that the father of her issue is not identified turns out to be wrong.”

   The new bill also grants citizenship to a foreign woman married to a Nepali man once she initiates the process of giving up her current citizenship. The seven-year waiting provision is not included in the new bill. The bill also provides that nonresident Nepalis will be able to acquire citizenship but will not be “eligible to enjoy political and administrative rights.”[45]

   Support and services

   Helplines and support services are available, particularly for women facing violence.

   Support groups such as the Women’s Foundation of Nepal has established three Shelter Homes that house more than 120 children and 30 women.[46] Women’s Foundation of Nepal has been running a home in Kathmandu since 1995 for women and children, especially victims of violence, abuse or extreme poverty, but moved in to a new Shelter outside Kathmandu in 2008. ^[47] In December 2017, the National Women Commission launched the Khabar Garaun 1145 (Inform Us) helpline to support survivors of gender-based violence, where callers can be referred to service providers for legal aid, psycho-social support, child support and shelter.[48] In June 2022, it was reported that the National Women Commission’s toll free number of 1145 and the Nepal Police 104 toll free number were operative around-the-clock for women facing violence.[49] Saathi is an NGO providing services such as counselling, medical care and temporary shelter to victims of domestic violence.[50] The Women’s Rehabilitation Centre provides counselling and legal support through counselling centres and numerous safe houses.[51] Organisations such as the Nepal Red Cross Society, Asha Crisis Centre, and the Transcultural Psychosocial Organisation (TPO) have been operating helpline services and offering counselling, legal services, therapy sessions through phone calls and social media for gender-based violence victims, including during the COVID-19 pandemic.[52]

   [42] ‘Nepal in fresh political conflict as president declines to sign citizenship law’, Sharma, G , Reuters, 21 September 2022, 20220928090904; ‘Nepal President Blocks Citizenship Law’, Ganguly, M, Human Rights Watch, 26 September 2022, 20221006122854; ‘Nepal’s Citizenship Bill attracts renewed controversy’, Lwagun, B, Global Voices, 29 September 2022, 20221006123253

   [43] ‘Court seeks clarification on President’s refusal to authenticate citizenship bill’, Kathmandu Post, 26 September 2022, 20221107134426

   [44] ‘Nepal: President Declines to Authenticate New Amendment to Citizenship Act for Second Time’, Tariq Ahmad, Law Library of Congress, 24 October 2022, 20221107131917

   [45] ‘Nepal: President Declines to Authenticate New Amendment to Citizenship Act for Second Time’, Tariq Ahmad, Law Library of Congress, 24 October 2022, 20221107131917

   [46] ‘Shelter Home’, The Women’s Foundation Nepal, January 2017, pp.1-2, CISEDB50AD80

   [47] ‘Shelter Home’, The Women’s Foundation Nepal, January 2017, pp.1-2, CISEDB50AD80

   [48] ‘Nepal hotline helps women suffering violence’, World Bank Group, 7 March 2018, CXBB8A1DA23474; See also: ‘Addressing gender-based violence in Nepal’, World Bank Group, 14 September 2018, CXBB8A1DA35433; ‘No let-up in cases of violence against women and children during lockdown’, Dhungana, S, The Kathmandu Post, 15 June 2021, 20210616084355

   [49] ‘VAW cases continue unabated’, Khabarhub, 21 June 2022, 20220629133211

   [50] ‘Saathi’, Womankind, April 2017, CISEDB50AD3845

   [51] ‘Violence against women’, Women’s Rehabilitation Center, January 2017, CISEDB50AD87; ‘No let-up in cases of violence against women and children during lockdown’, Dhungana, S, The Kathmandu Post, 15 June 2021, 20210616084355

   [52] ‘No let-up in cases of violence against women and children during lockdown’, Dhungana, S, The Kathmandu Post, 15 June 2021, 20210616084355