1711460 (Refugee)

1711460 (Refugee) [2018] AATA 3458 (19 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711460
COUNTRY OF REFERENCE:                  India
MEMBER:Michael Hawkins
DATE:19 July 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 19 July 2018 at 1:27pm

CATCHWORDS
Refugee – Protection visa – India – Whistleblower – Complaint to police about organ trafficking – Victim of physical violence – Threats and intimidation – Police protection – Indo-Nepal Treaty – Right to reside in Nepal – Third country protection – Refoulement – Delay in applying for protection – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), r 1.12, Schedule 2

CASES
MIAC v MZYYL [2012] FCAFC 147
MIMAC vSZRHU [2013] FCAFC 91
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 May 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of India, applied for the visas on 20 February 2015. The delegate refused to grant the visas on the basis that the applicants are not refugees as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to their receiving country, there was a real risk they would suffer significant harm.
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 (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 themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Relocation
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
State protection
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Membership of same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a wife and child of the applicant.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicants meet the refugee criterion, and if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The first-named applicant (“the applicant”) is [an age] year old woman from the town of [name], Trivandrum, province of Kerala, India.
The applicant is of the Christian faith, is of Indian ethnicity and speaks Malayalam, English and Hindi.
The applicant is married, but is now in a de facto relationship with the second-named applicant.
The second-named applicant (“Applicant 2”) is [an age] year old man from the town of Trivandrum, province of Kerala, India.
Applicant 2 is of the Christian faith, is of Indian ethnicity and speaks Malayalam and English.
The applicant and Applicant 2 were married [in] 2017.
The applicant’s current employment status is employed. She states that she works as [an Occupation 1] in [an agency].
Applicant 2’s current employment status is employed. He states that he is employed in part time work as [an Occupation 2].
The applicant arrived in Australia [in] March 2013 under passport numbered [number], issued [in] 2011 and expiring [in] 2021.
The applicant departed Australia [in] September 2013 and returned [in] October 2013.
The applicant applied for a [Student] Visa on 11 February 2013.
The applicant was granted a [Student] visa on 22 February 2013 which was valid until 15 March 2014. She applied for and was granted a second [Student] visa (further stay) on 28 May 2014 which was valid until 15 March 2015.
Applicant 2 arrived in Australia [in] February 2013 under passport numbered [number], issued [2005] and expiring [2015].
Applicant 2 applied for a [Student] Visa on 28 January 2013.
Applicant 2 was granted [Student] visa on 8 February 2013 which was valid until 15 March 2015.
The applicant applied for a protection visa on 20 February 2015, with Applicant 2 as a secondary applicant (de facto).
Applicant 2 applied for a protection visa on 15 May 2015, with the applicant as a secondary applicant (de facto).
The applicants attended an interview with the delegate on 30 April 2015. The delegate refused to grant the visas on 17 May 2017.
Claims:
The applicant set out her claims in a Statement dated 12 February 2015 referred to and attached to her application form.
The applicant claims that she was born and brought up into a middle class family and that her parents divorced when she was [age]. She states that she is a Christian.
The applicant claims that she attended the [a vocational college] in [Bangalore] where she graduated with a [degree].
The applicant claims that shortly after graduation she was employed as [an Occupation 1] working mainly in [Hospital 1] in Trivandrum (Kerala) from January 2011 to April 2012.
The applicant claims that she witnessed the trafficking of illegal [organs]. She stated that the hospital had an organised system of recruiting patients for organ transplants through agents.
The applicant claims that she told her boyfriend, Applicant 2, and he advised her to tell the police. She stated that she filed a complaint and following that [number] people went to her home to beat her. She was [injured] with a [weapon] and they threatened to "bury her alive" unless she withdrew the case within 24 hours.
The applicant claims that her neighbours were alerted by her cries and that her boyfriend, Applicant 2, was called and he took her to the hospital where she remained for [period] in the Intensive Care Unit.
The applicant claims that police and the organ transplant agent visited her separately in the hospital and told her to withdraw the case. She stated that she was angry and told them to leave.
The applicant claims that when she realised the police were supporting the organ trafficking she left for New Delhi in mid-February 2012 with Applicant 2. She then went to [Country 1] to get a job [in] March 2012 but had difficulties living there through a lack of job opportunities and money.
The applicant claims that she returned to New Delhi, India [in] April 2012 and stayed there with Applicant 2 who was working in a [business].
The applicant claims that [in] September 2012, Applicant 2 was set upon by a gang of [number] people who wanted the statement about the organ transplants to be withdrawn. The applicant claims that Applicant 2 was beaten with [an implement] and [injured] with a [weapon]. This resulted in him spending [period] in the Intensive Care Unit. Following this incident they moved to another apartment.
The applicant claims that a friend called "[Friend A]" advised both applicants to go to Australia and with her financial support they obtained student visas for Australia. Applicant 2 arrived [in] February 2013 and the applicant arrived in Australia [in] March 2013.
The applicant claims that while they were both living in [Australia] she received a message from her brother informing her that [her Relative B] was critically ill in hospital and that she had to return to India. When the applicant arrived in India [in] September 2013 she claims that it was a trap and the following day she was forced to marry a man she did not know. His name was [name].
The applicant claims that she escaped from her husband's family house two days after the marriage and took her money and her passport with her. She stated she travelled to Australia [in] October 2013. She returned to live with Applicant 2.
The applicant claims that she applied for a divorce three months later in the family court in Kerala.
The applicant claims that it is not safe for her and Applicant 2 to return to India because of the gangs that are after them both and there are threats from these gangs as well as her own family because of her police statement regarding the organ trafficking.
Applicant 2 claims.
Applicant 2 set out his claims in his application form for a separate protection visa.
Applicant 2 claims that when the applicant was working at [Hospital 1] she confided in him that she witnessed illegal organ trafficking.
Applicant 2 claims that he advised the applicant to file a complaint to the police and she followed his advice and lodged a complaint against the hospital. The day the complaint was filed to the police he claims the applicant was attacked and beaten at her home resulting in her hospitalisation. Applicant 2 claims that after the attack they lodged another complaint against [Hospital 1]. He claims that the police showed little regard for the complaint.
Applicant 2 claims that the police must have informed the hospital of the complaint.
Applicant 2 claims that he moved to New Delhi with the applicant shortly after the attack on the applicant as they did not feel safe in their own area. When he was in New Delhi he claims that he received a telephone call telling them to withdraw the petition otherwise they would kill them. He did not pay much attention to the call at the time. He claims that about a week after the telephone call he was attacked in the street and [injured] with a [weapon] which resulted in him being admitted to hospital.
Applicant 2 claims that he did not feel safe anywhere in India and with the help of a friend called [Friend A] secured a student visa and left the country for Australia.
Applicant 2 claims that he and the applicant have experienced harm in their country - once in Kerela [in] December 2011 (the applicant) and once in Delhi [in] September 2012 (Applicant 2)
Applicant 2 claims that if they go back to India they will be killed by a gang from [Hospital 1] and would not be helped by the authorities.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
- The applicants’ protection visa application forms completed and signed on 12 February 2015 and lodged on 20 February 2015 respectively (“visa application”).
- The applicants’ identity documents being certified copies of passports;
- The protection visa decision record (‘delegate’s decision record’) of 17 May 2017;
- The review application form which did include a copy of the delegate’s decision record;
- Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on India, published on 15 July 2015 and the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Nepal, published on 21 April 2016.
- Documents and letters contained in the file of the Department:
- Documents and letters contained in the file of the Tribunal.
Country of reference / receiving country
The applicant claims to be an Indian national. Based on the copy of her passport provided to the Department of Immigration and Border Security (The Department) by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that India is her country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
Applicant 2 claims to be an Indian national. Based on the copy of his driver’s licence provided to the Department of Immigration and Border Security (The Department) by Applicant 2, and in the absence of any other evidence to the contrary, the Tribunal finds that India is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
Hearing:
The applicants attended the hearing on 25 June 2018. They were represented. The hearing proceeded in the English language.
The Tribunal asked the applicants whether their application forms were written and prepared by each of them respectively. They each said they were. The applicants confirmed that they had each signed the application forms themselves. The applicant also confirmed that she had written the statement that accompanied the application form.
The Tribunal read to the applicant her claims as set out in paragraphs 32 to 46 above. The applicant confirmed that the claims were all accurate and complete. Applicant 2 also confirmed that they were accurate. The representative confirmed they were accurate and complete.
The Tribunal read to Applicant 2 his claims as set out in paragraphs 47 to 53 above. Applicant 2 confirmed that the claims were all accurate and complete. The applicant also confirmed that they were accurate. The representative confirmed they were accurate and complete.
The Tribunal asked the applicants’ what their intentions were when they married and in particular where did they intend to reside, if, in the worst case scenario, they had to return to India? The applicants each responded that they hadn’t thought about what would happen. But they both stated that their plans were to stay together, whatever might happen to them.
The Tribunal asked the applicant that were it not for the issues arising from her reporting the body parts trafficking, was her intention to take her de facto back to India? She said yes, it was.

The Tribunal asked Applicant 2 that were it not for his issues with the applicant’s complaint to the police, was his intention to go back to India with his de facto? He said it was. He went on to explain that he had qualified as [an Occupation 3], and whilst grateful to be able to work as [an Occupation 2] in Australia, he would much prefer to be working as [an Occupation 3], and in India he could do that.
The Tribunal clarified the applicant’s claim as to her fear of her family. She confirmed that it did relate only to the consequences of her having notified the police about her complaint with the hospital. She confirmed that she was not making any claim about fearing what her family would do because she had married Applicant 2. The Tribunal confirmed that she was not making claim in relation to any “honour killing” because she had married Applicant 2. The applicants’, and the representative, agreed.
Delay in making application
The Tribunal discussed with the applicants the reasons for the delay in making the protection visa application. The Tribunal noted that the applicant arrived the second time [in] October 2013 but the protection visa was not applied for until 20 February 2015. It also noted that the protection visa was applied for shortly before the expiry of the applicant’s second student visa. The Tribunal noted that it may have concerns about the genuineness of the claims and their credibility generally, given the time delay.
The applicant stated that they had faced many situations together. Whilst she also said she wasn’t immediately aware of protection visas, and took some time to find out about them, she was really waiting to see if things improved for her in India – in other words, would time fix their problems. The representative suggested that this was a positive response – that they thought very carefully before applying for a protection visa.
The Tribunal also noted however that their student visas were to expire within three weeks, of the time they made the protection visa applications. The applicant said the making of protection visas was not pre-planned. They wanted to see if they could return to India, but in the end, decided their only option was one of protection – protecting the applicant.
The Tribunal asked Applicant 2 what his views were. He said that the applicant definitely fears returning to India. The Tribunal asked him if he still feared returning to India. He said he also definitely did.
The Tribunal asked the applicant whether she felt safe in [Country 1] – was that the reason for going there. She said her [specified relatives] lived in [Country 1]. She thought she would be safe there, but at the same time, couldn’t tell her [closest relative] why she needed to be there. She didn’t want [the other relative] to know why. She said she wanted a job, but when that proved difficult, she said she couldn’t just stay with [those relatives]. She confirmed that she felt safe in [Country 1], and in Australia.
Consideration of why applicants arrived in Australia separately
The Tribunal noted that the applicant applied for her student visa on 11 February 2013. It noted that Applicant 2 applied for his student visa on 28 January 2013. It then noted that the applicant arrived in Australia [in] March 2013 and Applicant 2 arrived [in] February 2013. The Tribunal noted that the same person advised them at the same time, that they should go to Australia. Why then were applications made on different days. The applicant responded by explaining how Indian culture worked and how they couldn’t let it look that they were together. The Tribunal noted that they were actually living together in Delhi.
Applicant 2 then explained that they received confirmations for their respective universities in Australia at different times. Hence the different dates for applying.
The applicant explained that she wanted Applicant 2 to travel to Australia first to make sure it was safe before she came out. They also both applied for student visas as both wanted to study. If one had applied with the other as a secondary applicant, then the other would only have been able to study for three months.
The applicant advised that they had both completed [high level] qualifications.
Consideration of the application of subsections 36(3), (4), (5) and (5A) of the Act.
The Tribunal then referred to its need to consider whether the applicants, as nationals of India, may also have a right to enter and reside in another country.
The Tribunal discussed with the applicants the provisions of the Act relating to circumstances where an applicant may avail himself of a right to enter and live in another country and the situation generally regarding Nepal, a country in which it may be that they have a right to reside in.
Subsection 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.
The Full Federal Court in MIMAC vSZRHU [2013] FCAFC 91, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).
Does the applicant have the right to enter and reside in Nepal: s.36(4)
Under s.36(3) of the Act, as set out above, Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country, unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied.
In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).
The Tribunal raised the issue at hearing that it may appear the applicant had a presently existing right to enter and reside in a third country, Nepal, where there may not be a well-founded fear of persecution or real risk of significant harm, or a well-founded fear that Nepal may return her to India.
There exists a bilateral treaty between India and Nepal, known as the Indo-Nepal Treaty of Peace and Friendship of 1950, that allows Indian and Nepali nationals to enter each country without the need for a visa or other permission. This treaty was considered in the case of SZRHU in which the Full Federal Court directed that the Tribunal should pay regard to the actual terms of the Treaty, and evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test of a ‘liberty, permission or privilege lawfully given’, to enter and reside in the country.
Article 7 of that Treaty provides that Indian nationals such as the applicants can reside in Nepal:
The Governments of India and Nepal agree 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.[1]
[1] Accessed at the Government of India Ministry of External Affairs website; >
Available information indicates that the administrative arrangements relating to the entry of Indian nationals into Nepal allow them to enter Nepal without seeking a visa or other permission and that these arrangements pertain under the provision of the treaty.[2] According to a 2013 article by Professor of Economics and Executive Director of the Centre for Economic and Technical Studies in Nepal Hari Bansh Jha, ‘there is no need of passport or visa formalities among the border inhabitants or other nationals of Nepal and India. The nationals of one country can enter into the other country through the border not merely through the checkpoints but through any point’.[3] This article states that while there are 22 official checkpoints along the Nepal-India border, citizens of Nepal and India ‘can cross over the border without any restriction from any point’. Nationals of other countries ‘require both an entry and exit visa and they must cross over the border through six immigration points’. The article also comments on the ability of Nepalese and Indian citizens to escape from one country to the other, stating that when ‘there is any political upheaval in one country, people easily escape by crossing over the border’. There is no evidence before the Tribunal that indicated the existence of practical barriers for Indian citizens being able to travel to and enter Nepal.[4]
[2]     See ‘Information for Indian Citizens’, Nepal Immigration, available at     Jah, H 2013, ‘Nepal’s Border Relations with India and China’, Eurasia Border Review, Spring, p. 63, available at
[4]     Searches conducted on CISNET, open source search engines, human rights organisations, non‑government organisations, international news outlets and academic journals.
The Tribunal has taken into account relevant immigration laws in Nepal with regard to the entry rights of non-citizens, including the Immigration Act 1992, the Immigration Regulations 1994 and including the Immigration Procedures 2008, as those laws are published on the website of the Department of Immigration, Nepal, as the ‘Immigration Manual’.[5] Relevantly, the Immigration Procedures 2008 prescribe in Paragraph 8.4 the following requirements for the entry into Nepal of Indian citizens:
[5] See Nepal Government, Immigration Manual, available at
8.4: To allow Indian citizens to make travel on the basis of the following document:
·Passport, or
·Driving license with photograph, or
·Identity card with photograph issued by a governmental body, or
·Ration card with photograph, or
·Voter identity card with photograph, or
·Registration certificate issued by the Indian embassy to the Indian citizen staying in Nepal, or
·Ad hoc/temporary identity card issued by the Indian embassy to the Indian citizen in the event of exigency, or
·Document with photograph and setting out identity, issued by the sub-divisional magistrate or authority there above.
This information is replicated on Nepal’s Department of Immigration website.[6]
[6] See ‘Information for Indian Citizens’, Nepal Immigration, available at >
The website of the Embassy of Nepal in New Delhi provides information about the various visa types issued by the Embassy for entry to Nepal of non-Nepalese nationals, and, provides the following information for ‘Indian nationals’ entering Nepal by air at Tribhuvan International Airport, Kathmandu:[7]
Visa for Indian Nationals:
Effective from 1st October 2000 an Indian citizen over the age of 10 years travelling between India and Nepal by air would have to keep in his possession any of the following documents to establish his/her identity as an Indian citizen:
·Valid Indian passport; or
·Photo identity card issued by the Government of India, or any State Government or Union Territory Administration in India, or the Election Commission of India; or
·Emergency certificate issued by the Embassy of India in Nepal.
[7] See Embassy of Nepal, New Delhi, ‘Visa Information’ available at
The Tribunal asked the applicant whether she had any comment to make about this information, and particularly about the conclusion that it appears that she, indeed they, may have a right to reside in Nepal, given that as previously stated to the Tribunal, she has a valid passport and she and Applicant 2 still have Indian identity cards and driver’s licences.
The applicant acknowledged that she still had a valid passport.
The Tribunal asked Applicant 2 whether he had a view. He mentioned that his passport has expired. The Tribunal noted he still had a driver’s licence and still had his Indian ID card. The representative noted that there are issues with the issuing of a new passport in India where the applicant for the passport has sought asylum in another country. The representative promised to provide a submission in that respect.
The Tribunal considered and shared a summary of country information accessed from DFAT reports about Nepal.
Article 35 of Nepal’s 2015 Constitution guarantees access to basic health services as a fundamental right. The country has a variety of public and private health-care facilities. Public health facilities include sub- health posts, health posts, primary health-care centres and district hospitals. Private health facilities range from formal hospitals, nursing homes, private practitioners (especially at clinics or private pharmacies), private medical colleges and non-governmental organisations or community-run hospitals to informal practitioners such as faith healers (jhankri or shamans) and Ayurvedic practitioners.
In 2007 the government of Nepal introduced free essential health care services for poor and vulnerable citizens attending primary health-care centres and district hospitals. In 2008 the policy was extended to all citizens. In 2009, free essential health services became available via primary health care centres and district hospitals. Under this system, no charges are levied for registration, outpatient, emergency and inpatient services, or for essential drugs. Use of public health facilities by lower-caste, illiterate and marginalised people has increased since the introduction of the free essential services policy.
Nepal’s health sector is challenged by the country’s widespread poverty, limited government funding and its remote and mountainous geography which hinders the development of appropriate health infrastructure and access to health services outside of the densely populated southern plains region. Health care services are generally considered inadequate by international standards, and some facilities, particularly in Kathmandu, were damaged or destroyed by the 25 April 2015 earthquake. Hospitals in Nepal tend to be located in urban areas and provide a much wider range of medical services than rural health centres, although the quality of health care provided in large urban centres such as Kathmandu is still variable. The average Nepali spends just 5 per cent of their annual income on health-related needs.
Article 21 of the 2015 Constitution guarantees every citizen the right to free education up to secondary level. Nepalis aged 25 years or older have attended an average of 3.3 years of school, and approximately 60 per cent of Nepali children leave school by grade five. The adult literacy rate for people aged 15 years or older is 57.4 per cent.
Education outcomes are highly variable in rural areas, with poverty, remoteness and poorly-funded facilities creating on-going barriers to education access, most notably for children from Dalit communities. These factors are exacerbated by practices such as child labour, early marriage and caste discrimination.
While primary education has been free and compulsory since the early 1990s, implementation has been variable due to geographic isolation and challenges associated with conflict. Parents are often required to pay examination fees, annual fees or other costs associated with textbooks, uniforms, meals and other educational materials. These fees can be difficult to pay for parents from disadvantaged backgrounds, particularly those with multiple children. A number of schools, particularly in Kathmandu, were damaged or destroyed by the 25 April 2015 earthquake.
The Tribunal noted that the applicants themselves are educated and understand the value of education, perhaps unlike the Nepalese. Whilst they don’t have children at present, if they did ultimately decide to have children, their attitude will assist them to keep their children at school.
The Tribunal discussed the prospects of living in Kathmandu. When pointed out to them where it was, and that it had been earthquake affected, the Tribunal suggested that people with their particular skills, being [in their two occupations], would be people that ordinarily would be in demand in a country such as Nepal.
Does the applicant face a real chance of persecution or real risk of significant harm in Nepal: s.36(4)
The Tribunal must, if finding that s.36(3) applies, determine that s.36(4) does not apply. That is, the applicant will still be owed protection in Australia if he has a well-founded fear of persecution or faces a real risk of significant harm in Nepal.
The Tribunal noted that there has been no media in Nepal about the applicant’s circumstances. The Tribunal suggested that people in Nepal wouldn’t know who they are, or what they had done.

The Tribunal considered all of the applicant’s claims in the context of their application in Nepal. They would not know the applicant had made a complaint to the police about organ trafficking in a major hospital. She would not have lost any reputation or respect in the Nepal community therefore would not be condemned or isolated by society. Her family now have nothing to do with her and so would not object to her going to or being in Nepal. The Indian Government could not arrest her or charge her with anything. Her prospects of financial survival will be the same as anywhere she elected to resettle. She and Applicant 2 could seek employment, as both are educated. She could continue to seek medical support in Nepal. Her enemies would have no interest in her in Nepal. Gangs would not know they were in Nepal, especially given that it has now been more than six years since she made her complaint.
Equally, as Applicant 2 has not seen his family, but would like to, it would not be such an obstacle for him to reconnect with them in circumstances where he is disclosing his whereabouts.
Importantly, the applicants will have the support of each other, it being specifically noted that each had said in evidence “that their plans were to stay together, whatever might happen to them”.
The Tribunal has noted that the applicant has claimed that she suffers from stress. The Tribunal has not received any medical reports to this effect but acknowledges that the applicant’s situation may be indeed stressful. However the applicant has not claimed that she fears she will be persecuted or that she will be subjected to significant harm because of that stress condition in Nepal. The Tribunal noted the availability of medical assistance in Nepal for mental health.
The Tribunal noted that the Nepalese speak a great number of languages, including English and Hindi. It notes that the applicant speaks both and that Applicant 2 speaks English.
The Tribunal considered the fact that the applicants are Christian. It noted country information that Nepal is a secular state and that religious tolerance is broadly practiced and there are no restrictions on the sale or distribution of religious material. It notes that generally speaking, religious diversity and places of worship are respected. The Tribunal is satisfied that the applicants will not be persecuted by reason of their religion in Nepal.[8]
[8] DFAT Country Information Report, Nepal, 21 April 2016, p12.
Will Nepal return the applicant to India: s.36(5) and (5A)
The Tribunal has considered whether s.36(5) or (5A) apply, such that s.36(3) does not apply. That is whether the applicant has a well-founded fear that Nepal will return her to India.
There is no evidence before the Tribunal that Indian citizens residing in Nepal, under the terms and administrative arrangements relevant to the Indo-Nepal Treaty of Peace and Friendship of 1950, have been returned without reason.
The Tribunal is satisfied that given all of the applicant’s circumstances, and as particularly outlined in paragraph 104 above, there is no real chance that the applicant would be returned to India by Nepal. There is not a well-founded fear Nepal would return the applicant to India or any other country. The Tribunal finds the qualifications in s.36(5) and (5A) are not enlivened.
Adjournment
It was apparent to the Tribunal that the applicants and the representative were not in a position to discuss the application of subsections 36(3), (4), (5) and (5A) of the Act during the hearing. Accordingly, the Tribunal invited the representative to make a written submission on or before 4 July 2018.
The representative was keen to respond to Applicant 2’s passport situation and the Tribunal looked forward to that.
More generally, the Tribunal noted that the representative had indicated that he might have a witness for the hearing. The Tribunal asked what the nature of the evidence might be. The representative advised that the applicants’ were distressed by the findings of the delegate that cast doubt that they were in a relationship prior to coming to Australia. He said Applicant 2’s parents and a friend were prepared to come forward with evidence to affirm that. The Tribunal stated that it would consider statements from those people to that affect.
The Tribunal also spoke generally about the applicant’s claims and indicated to the representative that despite extensive research, it had been unable to uncover any information, media or otherwise, about any reports of organ smuggling from the particular hospital in respective of which the applicants’ claims were made. It suggested that it might reasonably have expected to have found at least one investigative report, if not from India, then from another international media agency, about any allegations having been made, but there were none. The representative acknowledged the same, but stated that he did have a report of a hospital within the vicinity of the hospital the applicant worked at that had been accused of organ trafficking. The Tribunal suggested that the representative might consider a submission to that effect.
Representative’s submissions
The representative provided a submission to the Tribunal on 5 July 2018, effectively requesting an extension of time until 10 July 2018. No further submission was received.
The representative cited Paragraph 5.24 of the DFAT Report as authority for the suggestion that it is unclear if an Indian Citizen is able to cross the Kathmandu airport border without a valid passport. The DFAT Report (Nepal) states that:
The Nepal Ministry of Home Affairs Department of Immigration is responsible for conducting entry and exit checks. There are ten formal entry and exit points, of which Kathmandu airport is the only international airport. Non-Nepali citizens (not including Indians) are required to use one of these points and must present valid passports and required visas. (Emphasis added)
The Tribunal is satisfied that the DFAT Report states that Indian citizens are not required to carry a passport at Kathmandu Airport.
The representative also submitted that “Australia requires any person departing Australia to carry valid travel papers including a current passport, in absence of this, they can be stopped from boarding a plane.”
The Tribunal considered this submission and confirmed that any visitor being deported from Australia who does not carry a valid passport is provided with temporary travel documents to facilitate deportation.
The Tribunal noted additional country information from the DFAT Report (India)[9] as follows:
Indian citizens without a valid passport may be eligible for an emergency certificate (EC) which enables one-way travel to India. ECs can be issued by Indian diplomatic and consular missions abroad.
Returnees to India use either an existing passport, a newly issued passport, or an emergency certificate, issued through the relevant Indian diplomatic mission. Documents are signed on the basis of a confirmed identity.[10]
[9] DFAT Report, India, paragraph 5.24
[10] DFAT Report, India, paragraph 5.22
Finally, the Tribunal considered the treatment of returnees, in circumstances where the applicants may have to transit an Indian airport. The DFAT Report (India) provides:
DFAT is not aware of any credible reports of mistreatment of returnees by Indian authorities, including failed asylum seekers. India does not have a centralised registration system in place which would enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or union territories within the country. A February 2015 report by the UK Home Office said that the possibility of the police, or any person or body being able to locate, at the behest of an individual’s family, a person who had fled to another state or territory in India, was remote.
The Tribunal is satisfied that neither applicant will experience any persecution at the Indian border on the basis of their travel documents.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, country information for Nepal as discussed with the applicant, and as submitted by the applicant, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of having made a complaint to the police about organ trafficking in a major hospital, having lost any reputation or respect or any other reason if she enters Nepal now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, membership of a particular social group, or political opinion) now, or in the reasonably foreseeable future, if she enters and resides in Nepal.
Given the separate claims of Applicant 2, having considered all of his claims, individually and cumulatively, and all the evidence and submissions, country information for Nepal as discussed with the applicants, and as submitted by the applicants, as well as having considered the personal circumstances of the applicants, the Tribunal finds that there is no real chance that Applicant 2 will suffer persecution on the grounds of the applicant having made a complaint to the police about organ trafficking in a major hospital, or having lost any reputation or respect or any other reason if he enters Nepal now or in the reasonably foreseeable future. Therefore, the Tribunal finds that Applicant 2 does not have a well-founded fear of persecution for any reason (including race, religion, nationality, membership of a particular social group, or political opinion) now, or in the reasonably foreseeable future, if he enters and resides in Nepal.
Overall Conclusion:
The Tribunal finds that the applicant has a right to enter and reside in Nepal and has not taken all possible steps to avail herself of that right.
Furthermore, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for any reason (including race, religion, nationality, membership of a particular social group, or political opinion) now, or in the reasonably foreseeable future, in Nepal and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing herself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm in Nepal.
The Tribunal further finds that the applicant does not have a well-founded fear of being returned from that country to a country where she has a well-founded fear of being persecuted. Nor does the applicant have a well-founded fear of being returned by Nepal to a country where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing herself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm.
Accordingly, Australia does not have protection obligations in respect of the applicant.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
For the sake of completeness, the Tribunal finds that Applicant 2 has a right to enter and reside in Nepal and has not taken all possible steps to avail himself of that right.
Furthermore, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for any reason (including race, religion, nationality, membership of a particular social group, or political opinion) now, or in the reasonably foreseeable future, in Nepal and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm in Nepal.
The Tribunal further finds that the applicant does not have a well-founded fear of being returned from that country to a country where he has a well-founded fear of being persecuted. Nor does the applicant have a well-founded fear of being returned by Nepal to a country where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm.
Notwithstanding the Tribunal’s finding in relation to s.36(2)(b) or (c), the Tribunal is satisfied that Australia does not have protection obligations in respect of Applicant 2.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Michael Hawkins
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 3458

19 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Natural Justice