1806713 (Refugee)

[2020] AATA 1131

1806713 (Refugee) [2020] AATA 1131 (14 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1806713

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Luke Hardy

DATE:14 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 14 January 2020 at 1:39pm

CATCHWORDS
REFUGEE – protection visa – Nepal – Federal Circuit Court remittal – complementary protection – previous proceedings established no well-founded fear of persecution – particular social group – homosexual – credibility – inconsistent evidence regarding sexual orientation, social activities and personal relationship – voluntary return to Nepal – country information – status of LGBTI people in Nepal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(aa), (2B)(a), 48A, 91R(3), 438(1)
Migration Regulations 1994 (Cth), Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo (1997) 191 CLR 559

MIMA v Rajalingam (1999) 93 FCR 220

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA (1994) 34 ALD 347

Sun v MIBP [2016] FCAFC 52

SZGIZ v MIAC (2013) 212 FCR 235

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 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. [The applicant] is a citizen of Nepal. He comes from the city of Lalitpur. He was educated in Lalitpur from [year] to college level in [year]. He visited Kathmandu in 2007 where he underwent a chest X-ray. He left Nepal via Kathmandu [in] May 2007. He arrived in Australia [in] May 2007 on a student visa. He obtained a further student visa whilst here. He returned voluntarily to Nepal on [in] April 2008 and re-entered Australia [in] May 2008. He was later granted a further student visa valid to [May] 2011.

3. On 14 May 2011, [the applicant] lodged a protection visa application on the grounds of homosexual orientation. He submitted around a dozen photographs of appearances at gay events and venues in 2010 and 2011. He also submitted a brief 15 November 2011 statutory declaration from a friend called [Mr A] who claimed to believe that he, [the applicant], was gay. His application was refused by a delegate of the Minister on 9 June 2011. On 24 November 2011, the former Refugee Review Tribunal affirmed that decision.

4. A summary of the first delegate’s interview and decision appears in the first Refugee Review Tribunal’s decision. The first delegate accepted that [the applicant] was homosexual but relied on independent information in finding that [the applicant] could relocate safely and practicably to Kathmandu and live there as a gay man and in a gay relationship without facing a real chance of being persecuted.

5. Upon questioning [the applicant] about his claims in detail, the first Tribunal identified a number of inconsistencies in his claims about his purported experiences and relationships in Nepal and regarding conflict with his parents there. The first Tribunal found that [the applicant] lacked credibility in a number of critical aspects of his case, and in view of her findings, gave very little weight to the 2011 statutory declaration described above or to the photographs submitted.  The first Tribunal’s decision still has standing at least insofar as it deals with [the applicant]’s claims as claims to refugee status, because although [the applicant] challenged the Refugee Review Tribunal’s decision in the Federal Magistrate’s Court and, later, in the Full Federal Court, no error in the Tribunal’s decision was found and [the applicant]’s appeals failed.

6. In 2012, [the applicant] sought Ministerial intervention under s.417 to substitute a more favourable decision but the Minister decided not to consider his request.

7. From 24 March 2012, the Migration Amendment (Complementary Protection) Act 2011 amended the Migration Act 1958 to introduce a new criterion to allow for the grant of a Protection visa in situations that engage complementary protection obligations. Since then, protection visa applicants have first been assessed to determine if they are refugees under the Refugees Convention and relevant Australian law. If they are not found to be refugees, their claims have then been considered under complementary protection criteria.

8. Relevant to the current application, s.48A of the Act imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. [The applicant] sought in 2012 to have the abovementioned bar lifted, but without success.

9. However, the Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.

10. [The applicant] lodged a fresh protection visa application on 3 April 2013 and, in light of SZGIZ, this application was determined to be valid on 16 August 2013. The second delegate refused to grant the visa on 9 September 2014. The second delegate purported to determine the application on refugee grounds as well as on complementary protection grounds. [The applicant] sought merits review of that decision in the Migration and Refugee Division of the AAT, following the merger of the former Refugee Review Tribunal into the AAT on 1 July 2015.

11. Applying the reasoning in SZGIZ v MIAC (2013) 212 FCR 235, the second Tribunal found that it did not have power to consider the Refugee Convention criterion in s.36(2)(a), and proceeded on the basis that it could only consider the applicant’s claims under the complementary protection provisions in s.36(2)(aa) of the Act.

12. The second Tribunal provided a summary of the second delegate’s decision record, showing that the delegate was prepared to accept that [the applicant] was homosexual but concluded on the basis of independent country information that, to the extent that homosexuals including homosexual couples might face some discrimination in Nepal, such treatment could not reasonably be regarded as rising to the level of significant harm or serious harm. do not face a real chance of being persecuted in Nepal. The delegate did make some negative findings as to [the applicant]’s reliability, such as in not accepting a claim from [the applicant] to the effect that had not been out of contact with his parents since 2010, and that his parents would force him to marry a woman if he returned to Nepal. The summary of the delegate’s decision record, having appeared in the second Tribunal’s decision record, is evidence before me. [The applicant] has not disputed the accuracy of the information.

13. The second Tribunal Member identified in her description of [the applicant]’s evidence a number of inconsistencies. [The applicant] evidently spoke at one point of his family’s discovery of his homosexuality as a likely possibility should he ever be removed to Nepal, whereas at another stage he had given evidence of his family already having found out. In the evidence [the applicant] gave to the second Tribunal, he made contradictory claims about his sexual orientation having become the subject of sanction at his university in Nepal. He gave apparently contradictory evidence about the extent to which he was teased and harassed in Nepalese society. The second Tribunal put to [the applicant] a seemingly very reasonable concern about his having returned voluntarily to Nepal in April 2008 after having said that he fled the country back in May 2007 to find refuge from the mounting mistreatment he was suffering from his family and society generally in Nepal. His reply was that he felt safe to return because his family did not know he was gay at that time. The second Tribunal put to him that his family would have known in the claimed circumstances, given that he said he had been expelled for being gay from the university to which his parents had sent him. He did not appear to have provided a cogent reply to this concern. The second Tribunal recorded that [the applicant] provided inconsistent evidence, as to who, in the claimed circumstances, wanted him to study abroad and in what context. The second Tribunal did not accept that the evidence of [the applicant]’s relationship in Australia was truthful. In light of inconsistencies in [the applicant]’s own evidence about himself, the second Tribunal did not give weight to testimony from Mr [A], who provided a second statutory declaration on 2 July 2014, declaring that [the applicant] had been in a genuine homosexual relationship with their flatmate Mr [B] for three years.

14. I note that [the applicant] also provided a short statutory declaration, dated 28 June 2014, from a friend Mr [C].

15. Many of the apparent inconsistencies identified by the second Tribunal, and raised with [the applicant] for discussion, had already been identified in the decision of the first Tribunal.

16. I note that [the applicant] was invited to present witnesses at both previous Tribunal hearings. In fact he evidently indicated an intention to present a witness (TBA”, or “To Be Advised”) at the hearing before the second Tribunal but ultimately did not present one.

17. The second Tribunal affirmed the second delegate’s decision on 4 April 2016.

18. [The applicant] the sought judicial review of that decision in the Federal Circuit Court which issued consent orders [in] March 2018, the Minister having conceded that the second Tribunal failed to disclose to [the applicant] the existence of a 9 September 2014 certificate and notification regarding what was then purported under s.438(1) of the Act to be non-disclosable information.

19. The matter was then sent back to the Tribunal for reconsideration according to the law.

20. The findings of the second Tribunal are quashed in view of the conceded jurisdictional error. However, the evidence [the applicant] provided to that Tribunal is evidence to which I am entitled to have regard.

21. [The applicant] appeared before the Tribunal on 9 January 2020 to give evidence and present arguments. He appeared alone, presenting no witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

22. At the outset, we addressed the s.438(1) issue, not least because it was the sole issue on which this matter was remitted. The certificate is found at f.247 of [the applicant]’s 2011 Immigration Department file, refers to material at f.43 and ff.223 to 243 of the same file as material that pursuant to s.438(1) if the Act is not to be disclosed, and describes the material as containing “information relating to internal business of the department.” As the material covered by the certificate is “information relating to internal business” the certificate is invalid.[1]

    [1] MZAFZ v Minister for Immigration and Border Protection  [2016] FCA 1081; 155 ALD 98

23. In any event, the material covered by the invalid certificate is not relevant to the task before me: the material at f.43 of [the applicant]’s 2011 Department file is merely a document confirming the Department’s booking of an onsite interpreter for the original 11 May 2011 protection visa interview; the material at ff.223 to 242 relates exclusively to [the applicant]’s request for Ministerial intervention under his non-binding public interest powers pursuant to s.417 of the Act, a process that took place entirely outside of the Tribunal’s jurisdiction. I disclosed to [the applicant] that the material at ff.223 to 243 of his 2011 Immigration file appears to be an Immigration official’s summary of his immigration history and claims along with documents relating to the outcome of that process. I assured [the applicant] that the material covered by the invalid certificate could and would form no basis whatsoever for the decision I must make in the present matter.

24. [The applicant] indicated that he was entirely satisfied with my discussion and treatment of the s.438(1) non-disclosure certificate issue, and the Tribunal hearing proceeded as discussed below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The issues

25. The main issue in this case is whether, on accepted facts, [the applicant] is entitled to complementary protection in Australia.

26. For the following reasons, I have concluded that the decision under review should be affirmed.

    Evidence provided to the presently-constituted Tribunal

27. At the Tribunal hearing, I invited [the applicant] to tell me where, how and why he thought the two previous Tribunals had erred in not accepting his claim to be gay. In reply, he said his relationship with Mr [B] is still ongoing.

28. I asked [the applicant] if there was a particular reason why he had not invited his purported partner Mr [B] to attend the Tribunal hearing as a witness, and he said he never knew that he had to do so. I put to him that the question of presenting witnesses in support of his application was all up to him, and drew his attention to the hearing invitation in this matter: the hearing invitation has asked him if he was requesting the Tribunal to take oral evidence from another person and he had opted to say “No.” He did not ask for a further opportunity to present Mr [B] or anyone else as a witness in this matter.

29. I asked [the applicant] if he was able to provide any recent or current evidence of his ongoing relationship with Mr [B] and he said he had no recent photographs.

30. I drew [the applicant]’s attention to photographs he had presented to the Department in 2014.

31. Amongst these there are three groups of photographs which [the applicant] said were taken at [Venue 1] Bar. In one group of photographs he is seen wearing a red shirt featuring [Language] text on it under a [Brand name] jacket; he told me these were taken on one occasion in 2011. There is another photograph of [the applicant] playing snooker evidently at [Venue 1] on another occasion, when he is wearing a [shirt] with large text on it under the same [Brand name]; he told me this was taken in 2011. In another photograph he is wearing a [shirt] with a “drinking friend”, and he told me this photograph was taken at [Venue 1] in 2011, or perhaps even in 2010. He appears from the evidence to have visited [Venue 1] three times in 2011, although on one of these occasions he suggested it might have been in 2010.

32. There are some other photographs which [the applicant] says were taken at [Venue 2] bar in 2011, one in which he was wearing the same [Brand name] jacket, closed over a scarf, making it hard to determine if this photograph was taken on a different night from either of the [Venue 1] visits; [the applicant] told me this photograph were taken in 2011. The other photograph which [the applicant] claims to have appeared in at [Venue 2] bar features him in the same [shirt] he is seen wearing at [Venue 1] with his “drinking friend”; he told me this photograph was taken in 2011.

33. The first Tribunal referred to a few other photographs also taken on 2011, some of which were re-submitted to the Department with the second protection visa application and discussed above.

34. The other photographs feature [the applicant] and Mr [B] as spectators at one of Sydney gay and Lesbian Mardi Gras parades. He told me repeatedly that these photographs were all taken on the night of the 2011 Mardi Gras Parade. I note that he and Mr [B] are, respectively wearing the same clothes in all of the photographs. The weather appears wet and [the applicant] appears dressed for rain, which fell on the parade in 2011:

35. In 2011:

    The weather was wet and the clothing miniscule but that did not stop the party along Oxford Street.[2]

    [2] “Mardi Gras marchers push for gay marriage,” ABC News, 6 March 2011,

36. In 2012:

    Pouring rain and cloudy skies did not stop parade-goers from coming out to celebrate the gay and lesbian community’s night of nights.[3]

    [3] “Equality the message of 2012 Mardi Gras,” Sydney Morning Herald, 3 March 2012,  

37. In any event, [the applicant] assured me that these were photographs of him and Mr [B] watching the 2011 Mardi Gras Parade, which took place on Saturday, 5 March 2011. He said that he and Mr [B] attended almost every parade since but took not a single photograph, either of themselves or the parade, since those taken in 2011. He said he missed out on watching the 2018 parade due to suffering tonsillitis.

38. I put to [the applicant] that the Sydney Gay and Lesbian Mardi Gras Parade is one of Sydney’s biggest social events every year and is attended by large numbers of non-LGBTI, or heterosexual, spectators from Sydney and all around the world. I thus indicated to him that photographs of observation of a Mardi Gras parade might not on its own be evidence to the effect that the observer is a person with an LGBTI sexual orientation or gender identity.

39. I asked [the applicant] if he had any other photographs depicting his gay social life and he said that the photographs he had submitted to the Department in 2014 depicting his activities in 2011 were the only photographs ever taken. He said, “During that time we provided these photos.” Again I asked him if there were any more recent photographs and he said, “No. Nothing like that.”  The only photographs he had depicting his life in Sydney’s gay culture, then, were the ones he submitted to the Department.

40. I put to [the applicant] that the photographic evidence showed no more than that he attended the Mardi Gras Parade once, [Venue 2] perhaps twice and [Venue 1] three times; in reply, he said, “During that time, yes.”

41. I asked [the applicant] if he was carrying his mobile telephone with him at the hearing and he said he was. I asked him if he could show me any photographs at all of Mr [B], or of himself socialising with Mr [B], taken since the night of the 2011 Mardi Gras parade; in reply, he said, “No.” I asked him why not and, initially he said he had not retained those photographs in him mobile telephone. When I checked with him as to whether any such photographs had ever been taken in the first place, retained in his mobile telephone or otherwise, he said that none had been taken.

42. I note that, in shifting from telling me that there were such photographs he had merely not retained to saying that there had never been any such photographs to begin with, [the applicant] plainly changed his evidence. Having reviewed all of his relevant evidence overall, I have given some cumulative weight to the inconsistency.

43. I asked [the applicant] if he used any social media platforms and he said he uses [Social media 1] and [Social media 2]. I asked him if he could provide to me any evidence of communication or socialising with Mr [B], even evidence of them socialising in the company of others, and he said he had no such evidence at all. I asked him why not, since they had been a couple since 2011, and he said that because their relationship was genuine, he did not think that he and Mr [B] needed to show off. He said that it felt artificial to display their relationship on [Social media 1]. His aversion to taking such photographs stands seemingly at odds with the number of pictures he had someone take of himself with Mr [B] at the 2011 Mardi Gras parade and f himself with others at the two gay venues the same year. He did not try to provide any explanation for his arguably profound change in attitude. I have given some negative weight to [the applicant]’s own inability to provide any evidence of ongoing acquaintance with Mr [B] before or since the 2011 Mardi Gras photographs, notwithstanding the statutory declarations from Mr [A] and Mr [C], which are further discussed below.

1. On a further occasion during the Tribunal hearing, I invited [the applicant] to rebut any of the findings of the first and second Tribunals with which he might disagree. Both Tribunals had put him on notice about inconsistencies throughout his evidence and, although the findings of the second Tribunal have no standing in law, the findings of the first Tribunal on similar facts certainly do.

2. All that [the applicant] said in reply was that people who are not gay “don’t understand our feelings.” He was therefore not particularly helpful in this matter in his response to my repeated invitation. As at the date of his appearance before me he was mainly relying, only with very slight addition, on the same evidence he had presented to the first Tribunal in 2011. Having reviewed all of the evidence before me I came to consider this very concerning.

3. In reviewing [the applicant]’s evidence over time, I found a 5 May 2011 statement from him, saying:

   After my arrival in Australia I have had many one night stands but I am not in a relationship in Australia. In Australia I have had to study. I visit gay bars/clubs almost every weekend. I hook up online and chat with other gays and share feelings. I am looking for love, acceptance, and all the things that make life so wonderful. In the years ahead, I hope I will meet other boys that interest me and in time, I may choose to commit myself to one as my partner.

4. This claim about having visited gay bars almost every weekend struck me as being at odds with his statement at the Tribunal hearing before me when he said that he only visited [Venue 1] and [Venue 2] on the occasions when the submitted photographs were taken: a total of two visits to [Venue 2] and three visits to [Venue 1]. On review of the evidence in this matter overall, I have given this discrepancy some cumulative weight.

5. Meanwhile, in connection with his second protection visa application, [the applicant] made a statement to the Department on 2 May 2014 as follows:

   In August 2010, I met Mr [B] at [a] train station. We introduced each other through my mutual friend and we got on the train to [Suburb]. First we exchanged our mobile number while on the train. And then our relationship started as a friendship. We communicated and visited each other every weekend. Our relationship developed gradually. After three weeks [evidently in late August or early September 2010], he asked me if he could move to my place and I accepted him as a flatmate as well as a good friend. He moved to my place but he did not reveal his sexual orientation to me until he had been living at my place for nearly 8 months [evidently around March 2011].

   After 8 months living together as flatmates and good friends [evidently around March 2011], I took him to [Venue 2] club at Oxford street where I was able to tell him my sexual orientation. At that time I told [Mr B] that I am a gay and sexually interested in males. He felt comfortable and told me that he was also sexually interested in males only. After that meeting, we both realised that we wanted to have a close relationship. We both felt comfortable with each other. He was very excited to see gay men at [Venue 2]. He said he never had an opportunity to visit a gay club before I took him there and he really enjoyed the company with me. We became very close friends. I had a crush on him and I got him to open up and actually be casually affectionate with me. I fantasized him all of the time, rush home from work to bang out with him. We have developed true loving feelings for each other.

   I confided in my partner and told him exactly how I felt about him. I could not control my emotions and desires when around [Mr B]. We fell in love with each other and we are soul mate[s] to each other. We started visiting [Venue 2], [Venue 1 – alternative name] [sic: the venue was called [Venue 1] and [Venue 3] frequently on weekends: We shared our experience about our sexual activities. I had sex with [Mr B], my boyfriend on a regular basis. We are committed to each other as a loving couple. I was with open relationship right up until I was [age].

   We do not have a monogamous relationship, even though we tried to have a monogamous relationship, but it just doesn't work because I am much more sexually active than my boyfriend…

   [interpolations in bold are my own]

6. There is no mention in this statement of [the applicant] and Mr [B] having attended the Mardi Gras parade in March 2011 and, although I consider it fair and prudent not to confuse “omission” with “contradiction”, it does seem an odd thing to leave out of the May 2014 statement. Still, I have not attributed negative weight to this particular omission. However, I note with concern that, in his 5 May 2011 statement to the Department, [the applicant] plainly asserted that as at that time he was not in a relationship with anyone, had not found anyone with whom to fall in love and commit, and remained for the time being habituated to casual sex (“one night stands”). There is a clear inconsistency between what is said in these respective statements regarding [the applicant]’s relationship status, and this time, the issue is not what is omitted from the later evidence but what is omitted from the more contemporaneous statement of 5 May 2011. What [the applicant] says about himself and his relationship status in the 5 May 2011 statement is completely inconsistent with his evidence regarding having commenced his sexual relationship with Mr [B] in March 2011, and having attended the Mardi Gras parade with him in the same month.   

7. The 2 July 2014 statutory declaration from Mr [A] declares that he has been a flatmate with [the applicant] and Mr [B] and declares that their relationship began when Mr [B] moved in with them three years earlier.

8. However, the 15 November 2011 statutory declaration from Mr [A], whilst claiming awareness of [the applicant] being “gay” and preferring men to women, evidently makes no mention at all of [the applicant] being in a relationship with anyone. His 15 November 2011 statement does not mention Mr [B] at all, let alone provide information consistent with having observed in July 2014 that the relationship commence between two of his flatmates back in 2011. Mr [A] indicates as at 15 November 2011 that [the applicant] goes to gay venues to mingle with gay men, but does not suggest that he ever accompanies, or is accompanied by, anyone when he goes out of their shared flat, let alone their flatmate Mr [B]. On review of the evidence in this matter overall, I have also given this discrepancy some cumulative weight.

9. As noted, [the applicant] also provided a short statutory declaration, dated 28 June 2014, from his friend Mr [C]. The contents of that  statutory declaration is somewhat vague and unclear: he says first met [the applicant] in 2007 and first met Mr [B] in 2010 and that he has visited their place many times; he does not make it clear when he first became aware of their cohabitation or of the beginning of their claimed relationship; he does say, nevertheless, that they “have a gay and happy relationship” and are public about it.

10. Noting that [the applicant] claimed to have fled Nepal to avoid disgrace and persecution in 2007, it struck me as odd that he voluntarily returned there in 2008. I note that he claimed in the past to have gone there feeling secure in the belief that his parents did not yet know he was gay, and apparently not at all fearful that news of the scandal he had caused at the college his parents paid him to attend, leading to his expulsion, had not reached them; nor was he fearful that the father of his purported Nepalese lover at the time he first left, a police officer who was a friend of his own father, had talked to his family about the affair after learning of it himself and having taken action in anger over the matter. This is an issue that [the applicant] could have addressed when I invited him to rebut past findings, but it remains one that he has not resolved.

11. Approaching this case from a different angle, I invited [the applicant] to comment on the two delegates’ findings to the effect that, assuming he was indeed a gay man, conditions in Nepal for LGBTI+ persons including gay males had significantly improved over the last two decades, particularly under the law and Constitution, and in day-to-day effect in cities like Kathmandu, such as there did not appear to be a real chance of his being persecuted for reasons of being gay or, as the second delegate specified, a real risk that he will suffer significant harm for any reason at all. I drew [the applicant]’s attention to the fact that both delegates had relied explicitly on independent country information that they had respectively summarised in considerable detail.

12. In response, [the applicant] said that what people see from the outside is different from what gay people experience on the inside. He apparently had nothing more to say about the question. He did not suggest, for example, that he still had to face the allegedly outraged police officer father of his erstwhile lover in Nepal. He did not refer me to an earlier claim to the effect that Maoists would persecute him for being gay.

13. I asked [the applicant] what factors might prevent him from relocating to Kathmandu where, I note, he had passed through three times in past. It seemed a reasonable question not least given that he had negotiated his way as a student in Australia. In reply, he said that gay men are regarded as “criminals” in Kathmandu and have no environments in which to socialise. I put to him that although there remain elements in society that have negative feelings about LGBTI+ people including gay males, independent country information suggested that his statement appeared to be inaccurate. DFAT’s Country Information Report: Nepal dated 1 March 2019, observes as follows:

    LGBTI

    3.76 The new constitution has granted sexual and gender minorities a number of rights and allows the state to pass laws to protect, empower and advance their interests. Nepal is one of the few countries in the world to have such constitutional provisions. Practically speaking, local LGBTI NGOs report that LGBTI people face discrimination in accessing government services, including accessing citizenship documents and in accessing police protection from violence and harassment.

    3.77 The Government has yet to implement Supreme Court orders from 2007 and 2008 abolishing all laws that discriminate against LGBTI people. Citizens can now obtain third-gender identity documents. Pride parades and transgender beauty contests have taken place in Kathmandu and LGBTI NGOs operate openly.

    In April 2014 the Ministry of Women, Children and Social Welfare assigned a focal person for sexual and gender minorities and funding for LGBTI advocacy groups has decreased in recent years.

    3.78 According to a 2007 court ruling, genders other than ‘male’ or ‘female’ should be able to listed on identity documents, including citizenship certificates and passports. A further court ruling in 2017 re-emphasised the government’s responsibility to issue such documents. These reforms have been introduced gradually. According to Freedom House, the first time a third-gender passport was issued was in 2015.

    3.79 DFAT assesses that LGBTI people face a low risk of official discrimination and harassment and a moderate risk of societal discrimination. LGBTI people face a low risk of violence. While the risk of discrimination, harassment and violence is declining overall, the risk is lower in general in urban areas. General community attitudes towards same sex relationships remain negative. LGBTI people from lower castes or from lower socio-economic backgrounds face a higher risk of harassment, discrimination and violence.

14. [The applicant] did not suggest that his caste [is] amongst the “lower” Castes in Nepal or that he is from a lower socio-economic background.

15. As to the claim about there being no socio-political environment for LGBTI+ people including gays in Nepal, I note the recent Queer Pride rally in Kathmandu having been organised and conducted, by a large number of LGBTI+ organisations, including “Queer Youth Group (QYG) and Queer Rights Collective in collaboration with various organisations rallied from Maitighar (Fibwa-Khya) to New Baneshwar (Khuntoo)”[4] without potentially relevant repercussions. According to evidence he gave to a previous Tribunal, [the applicant] is also aware of the existence of the gay advocacy group Blue Diamond Society[5], which was established in 2001, in spite of suggesting to me that there is no such environment for gays in Nepal. I note that there are also several sexual health services in Kathmandu and other parts of Nepal specialising in LGBTI+ sexual health issues such as HIV/AIDS.[6]

    [4] “Celebration of diversity and sexuality: country’s first pride parade,”  The Himalayan Times, 29 June 2019,

    [5]

    [6] “National HIV Strategic Plan 2016-2021 | Nepal HIVision 2020: Fast-Track ending the AIDS epidemic as a public health threat, by 2030 (2nd Edition, June 2017) [EN/NE],” Reliefweb, 17 January 2018,

16. I note that Kathmandu also hosts a number of social venues for gay men[7] and is internationally regarded as a city welcoming to LGBTI+ visitors.[8] Gay social contact sites like Grindr, Scruff, Fridae and Jack’d are evidently fully and legally available on the Internet and mobile telephone applications in Nepal, and all appear to provide graduated levels of membership and access allowing limited free access to chat with other members, or else access that is at least substantially cheaper than the sites’ more “premium” levels of subscription.

    [7] Google lists at least three prominent gay bars for Nepalese and other patrons in Kathmandu: Pink, Fire Club and Tom & Jerry’s.

    [8]

    Findings in relation to s.36(2)(aa) of the Act

17. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[9] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[10]

    [9] MIMA v Rajalingam (1999) 93 FCR 220.

    [10] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

18. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[11] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[12]

    [11] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

    [12] Sun v MIBP [2016] FCAFC 52 at [69].

19. The first Tribunal has already concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a). I can only consider the alternative criterion in s.36(2)(aa).

20. A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

21. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

22. "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.

23. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

24. Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.

25. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise 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 the applicant will suffer significant harm; where 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; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

26. Accepting that [the applicant] is a citizen of Nepal, I find that Nepal is the “receiving country” in this case.

27. I find that the harm [the applicant] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.

28. As can be seen from the discussion in other sections above, [the applicant]’s claims to complementary protection are essentially the same as his refugee status claims. His claims failed as refugee status claims before the first Tribunal due ultimately to a lack of credibility and, hence, a failure to meet the “real chance” test.

1. The claims [the applicant] put before the second Tribunal, for their assessment as complementary protection claims, were by and large the same claims put before the first Tribunal. The second Tribunal gave [the applicant] with an opportunity to provide additional evidence including information updating what he had presented to the delegate in this matter and to the delegate and first Tribunal in the previous protection visa application.

2. Information provided to both previous Tribunals contains a large number of inconsistencies. I offered [the applicant] a number of opportunities to discuss and resolve any of the issues that were perceived as critical by past decision makers and his responses were brief, vague and rather nebulous, and in regard to the findings of the two delegates about the reasonableness of relocating to Kathmandu, [the applicant] relied to a substantial extent on outdated and incorrect information, as he did when I raised the issue with him.

3. Overall, [the applicant] provided me with no evidence of an ongoing sexual relationship with Mr [B], whether exclusive or “open”. None of his own relevant supporting material succeeds in supporting the suggestion that they have remained even acquainted since 2011. Meanwhile, there are inconsistencies in [the applicant]’s written testimony as to whether he was even in a relationship at all with Mr [B] prior to May 2011, as later asserted. Meanwhile, none of the assertions in statutory declarations from [the applicant]’s friends help to overcome the contradictions and deficiencies in his own evidence, so I am ultimately unable to give them any weight.

4. Having considered all of the evidence before me in its entirety, I am not satisfied that [the applicant] was ever in a sexual relationship with Mr [B]. I have then proceeded to consider the significance, if any, of this finding to the matter overall.

5. In the course of such consideration, I give some weight to the contradictions in [the applicant]’s evidence between his claiming to have made frequent, practically weekly, visits to gay pubs and clubs in Sydney over a period of around two years and his telling me that “during that time” he only attended two Sydney venues on the very few occasions captured in the photographs he submitted as evidence in his protection visa application. From this discrepancy, I am left in considerable doubt as to [the applicant]’s claimed immersion in gay social life in Sydney.

6. There is also the unsatisfactorily explained complete cessation, since 2011, of the taking and retaining of photographs of [the applicant]’s social life, whether “gay” or more generic, including photographs alone with Mr [B] or with him amongst others, which seems incongruous with the concentration of photographs sent to the Department in connection with his protection visa application, and also incongruous with claims about his relationship being publicly known and accepted in his Sydney social circle. Essentially, [the applicant] claims not even to have received let alone retained photographs that various social acquaintances friends might have taken at commonly attended occasions and shared with him over the last seven years, in sharp contrast with the handful of photographs submitted to the Department in connection with his protection visa application. All of this leaves me concluding two things.

7. The first conclusion is that the photographs taken and sent to the Department, including the photographs of the Mardi Gras attendance, were made and submitted by [the applicant] in bad faith. In finding that these photographs were made and submitted in bad faith is not to err, on my part, in applying s.91R(3) of the Act; I must not dismiss them from consideration altogether just because they were made solely for the purpose of strengthening [the applicant]’s claim to protection. However, I am still entitled to consider and even find, as I do in this case, that they were manufactured and submitted in bad faith. Importantly, I must still consider whether in attending the venues and events depicted and in making and submitting these photographs, [the applicant] faces a real risk of significant harm in Nepal, but he has not satisfactorily argued, or even really argued at all, that there is a real risk that these photographs will give rise to significant harm in the event of his removal to Nepal. Having regard to the country information before me, discussed with [the applicant] at my hearing of his application, I am not satisfied that such photographs would give rise to a real risk of significant harm in his case.

8. The second conclusion drawn from what I have discussed in paragraph 77 above is that, [the applicant] has not been participating in what he has called a “gay” social life in Sydney, either public or private, and I have given some weight to this conclusion. It may be unreasonable to expect a gay male, irrespective of his individual personality and experiences, to have kept a detailed and legible record of his “gay lifestyle” or some other construed disposition. It is nevertheless not unreasonable to try and evince sensitively from a relevant protection visa applicant some kind of plausible “human narrative”, as it were  and be disposed, all relevant things considered, to grant the benefit of the doubt. In this case, in light of inconsistencies and other deficiencies in [the applicant]’s evidence of his claimed experiences as a gay male in Sydney, I find that there is no plausible human narrative and, again, the statutory declarations from his friends do not help him to overcome any of those deficiencies.

9. I have asked myself if these findings are significant enough to lead me to conclude that [the applicant] is not a gay male as claimed. After all, there are additional claims, such as those relating to claimed experiences in Nepal, that I have not explored as closely as the first Tribunal. However, this was largely due to [the applicant]’s reluctance to engage with my twice-put invitation to rebut any settings out of his evidence by past decision makers, or any of their findings, with which he disagreed: he merely said at two stages in the hearing before me that people do not understand the feelings of gay men. Meanwhile, all of the findings of the first Tribunal, including findings as to the quality of [the applicant]’s evidence about claimed experiences in Nepal have been found to contain no jurisdictional error. Although those findings relate exclusively to the question of refugee status, I have regard to the fact that "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition, as discussed above. SZQRB [2013] FCAFC 33).

10. On the evidence before me, I am overwhelmingly confident that [the applicant]’s evidence about being a gay male is comprehensively unreliable and that it is not helped by the statutory declarations from his friends or by the many submissions of past migration agents.

11. Although I am overwhelmingly confident that [the applicant] is not gay and would not for any potentially significant purposes be imputed to be gay in Nepal or anywhere else, I have considered the alternative case, not least because two delegates accepted or were prepared to accept or assume that [the applicant] was gay. In the alternative I would still find, on recent independent country information that [the applicant] does not face a real risk of significant harm in Nepal for being or being perceived to be gay, especially in Kathmandu where, I find, it would be safe, practical and reasonable for him to relocate, given his education level, evident status above the lower castes in Nepali society and accrued socio-economic experience over more than a decade in Sydney, a foreign city very remote from Lalitpur where he was raised. In alternative findings I would find that Kathmandu is an area of Nepal “where there would not be a real risk that the non-citizen [the applicant] will suffer significant harm”: ref. s.36(2B)(a) of the Act.

12. On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk that [the applicant] will suffer significant harm. 

13. Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

14. Furthermore, in the alternative, on the evidence before me, I find, as discussed above, that [the applicant] is caught by s.36(3) and not evidently saved by ss.36(4), (5) or (5A).

    Other findings

15. There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).

    DECISION

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

    LUKE HARDY

    
    

    MEMBER

    
    

    ATTACHMENT A

    RELEVANT LAW

17. 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, the applicant 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.

18. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

19. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

20. 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 a protection 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 the applicant 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’).

    Mandatory considerations

21. 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.