1806077 (Refugee)

[2024] AATA 1399

1806077 (Refugee) [2024] AATA 1399 (18 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Duy San (MARN: 1796383)

CASE NUMBER:  1806077

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Genevieve Hamilton

DATE:18 April 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 18 April 2024 at 3:08pm

CATCHWORDS
REFUGEE – protection visa – Nepal – ethnic minority – monarchist – perceived wealth – son in Australia – criminal convictions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 June 2016.  The delegate refused to grant the visa on 28 February 2018. 

3. The applicant appeared before the Tribunal on 18 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

6. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

7. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

   Refugee

8. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).  

9. 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.

10. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

11. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

12. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

13. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

14. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

15. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

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

    CLAIMS AND EVIDENCE

17. In his protection application the applicant said he was born in Nepal [on date] and is a citizen of Nepal.  He said he also had a right to enter and reside temporarily in India.  He speaks, reads and writes Nepalese.  In his said his religion is Hindu and he is a member of an ethnic minority.  He is married, the marriage took place in Nepal.  He was living with his wife in [suburb].  He last arrived in Australia in February 2013, travelling on a Nepalese passport, with a student visa.  He has since been back to visit Nepal (dates not specified).  He does not list any family members. 

18. The applicant said he came to Australia accompanying his wife who was studying here.  She now had a working visa and it was assumed that they have a lot of money.  He comes from a minority and he will be subjected to harassment and extortion from groups that discriminate.  If he defies he will be at risk of death and will not get protection.  He claimed he had received such demands for money and death threats last time he was in Nepal and was not protected by the authorities because he is in a minority.

19. The applicant has a criminal record in Australia as per his submitted AFP name check.  The character assessment of this record is subject to a non-disclosure certificate.  Three charges were heard in the [named] Magistrates’ Court, two in July 2014 and one in January 2015 with convictions and fines totalling [amount]. 

20. The applicant was asked to attend an interview to discuss his protection claims on 26 February 2018.  He did not attend. 

21. In a written submission prior the hearing the representative stated that the applicant’s claims had not been properly reflected in his protection application which was prepared by another migration agent or lawyer, even though this is not stated in the application itself.  He acknowledged that the applicant did not attend the protection interview.  He was instructed that the applicant had been a strong supporter of the monarchy and had received demands for money and death threats from the Maoists when he lived in Nepal.  As the civil war was now over, with the establishment of the republic in 2008, the applicant accepted that his claims were no longer well-founded. 

22. The applicant hoped his case would be referred to the Minister for consideration of the exercise of his discretion to substitute the Tribunal’s decision for a more favourable one.  His son [was] due to became a citizen [in] March 2024.  The applicant and his ex-wife amicably co-parent and the three are still effectively a family unit.  (An attached statement from the applicant’s ex-wife details the time he spends with his son and his investment in his education, whereas she has a low income).  The applicant owns a successful [business] in Australia and relies on this to support his son financially, and it also employs Australian contractors.  The representative referred to international norms concerning the primary consideration of the best interests of the child and the importance of the family unit.  The applicant himself has been here for 15 years which is more than half of his adult life.  He is well-integrated into the community and is a donor to charity.  It was noted that the applicant had been unlawful for a brief period following the MRT’s decision that it had no jurisdiction regarding the refusal of his 457 visa.  When he applied for a protection visa he thought he had been granted an associated bridging visa but this turned out not to be the case, so he was unwittingly unlawful for another several months.  His criminal convictions were dearly a decade ago and the applicant had not offended since then.   

23. At the hearing, the Tribunal provided the applicant with a copy of the non-disclosure certificate and stated that it related to his known criminal convictions which were not relevant to the Tribunal’s role of assessing his protection claims.

24. The applicant said he arrived in Australia in 2009.  He and his is ex-wife were already divorced when she obtained her permanent residence in 2017 and she became a citizen in 2023.  His son is nearly [age] years old.  The Tribunal noted that the applicant only applied for protection in 2016 which was about 7 years after he came to Australia.  The applicant said he had a visa with his ex-wife up to that time.  Asked why he applied for protection, the applicant said it was because he and his ex-wife had been temporarily separated and could not prove their relationship to be included in her further temporary visa.  But he could not go back to Nepal.  Asked why he could not go back to Nepal, the applicant said he was a monarchist and had been threatened by Maoists.  The Tribunal put to the applicant that this was not a claim put forward in the protection application.  The applicant said he could not go back because he had a son here.  He met a lawyer and followed his advice.  Asked whether he still feared Maoists he said he did, because they are in government now.  The Tribunal asked the applicant about his original claims to fear harm because of his ethnicity.  The applicant said ethnic minorities were expected to support the Maoists but in fact they all supported the monarchists.  That is why he moved to the city. 

25. The applicant’s ex-wife gave evidence confirming that the applicant was a very supportive father.   

26. In a post hearing submission the representative addressed some matters that had arisen during the hearing including issues of interpretation. 

    FINDINGS AND REASONS

27. Based on the information in his application the Tribunal finds that the applicant’s country of nationality is Nepal. 

28. The applicant expressed fear of harm due to his ethnicity and political opinion, and perceived wealth. 

29. The applicant’s [ethnicity] is that of an indigenous minority group historically concentrated in particular districts of [Western Nepal].  There is no independent information indicating that they are at risk of discrimination in Nepal, let alone serious harm such as defined above.  The Tribunal does not accept that the applicant has been harmed in the past due to his ethnicity or that there is a real chance of this occurring in the future. 

30. The Tribunal does not accept that the applicant was ever a monarchist targeted by Maoists.  It simply did not make sense that this would not have been stated in his initial claims if it was true. 

31. Regarding the fear of being harmed due to perceived wealth, DFAT assesses that businesspeople face a low risk of harassment and violence, including extortion and kidnapping, by criminal gangs and others.  State protection is generally effective.  (DFAT Country Information Report Nepal 1 March 2024). 

32. The Tribunal does not accept the applicant was threatened during his trip to Nepal from [December] 2012 to [February] 2013.  It was not consistent with the country information and he provided no detail to support the claim.  He made a protection application several years later even though his migration status as a member of his ex-wife’s family unit was never certain to be permanent.  This indicated that, consistent with the country information, he did not have a fear of serious harm. 

33. The Tribunal therefore does not accept that the applicant was denied protection by the authorities. 

34. In summary, based on the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any refugee reason.  He does not have a well-founded fear of persecution as required by s 5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s 5H(1).

35. Having concluded that the applicant does not meet the refugee criterion, the Tribunal considered whether he meets the complementary protection criterion.  The Tribunal has not accepted that the applicant faces a real chance of serious harm in relation to the claims discussed above; similarly, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm, as defined, in relation to those claims. 

    CONCLUSION

36. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).

37. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

38. Accordingly, the applicant does not satisfy the criterion in s 36(2).

39. In the circumstances outlined by the applicant’s representative, the Minister may wish to consider exercising his discretion to substitute the Tribunal’s decision with a more favourable one. 

    DECISION

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

    Genevieve Hamilton
    Member