1810211 (Refugee)

[2024] AATA 2947

1810211 (Refugee) [2024] AATA 2947 (17 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1810211

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Genevieve Hamilton

DATE:17 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 17 April 2024 at 12:05pm

CATCHWORDS
REFUGEE – protection visa – Nepal – interfaith marriage – information provided during bridging visa interview – health care and education in Nepal – length of time resided in Australia – Australian citizen child – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 4, 5H, 5J, 29, 36, 65, 424A
Migration Regulations 1994 (Cth), r 2.08; Schedule 2

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 Home Affairs to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first three named applicants applied for the visas on 1 September 2014.  The fourth named applicant was born in [year] and was added to her parents’ application by the operation of regulation 2.08.  The delegate refused to grant the visas on 27 March 2018.

3. The first-named applicant (hereafter the applicant) attended a hearing of the Tribunal on 25 March 2024.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, 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.

5. 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).

6. 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.

7. 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’).

8. 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

9. In the protection application the applicant said he was born in Nepal in [year], his language is Nepalese, his religion is Buddhist and he is a citizen of Nepal.  He came to Australia in June 2009 travelling on a Nepalese passport.  He married in September 2008, in Nepal. 

10. In a written statement the applicant said he had been planning to lodge a subclass 457 application being a qualified [Occupation 1].  He has been advised that he cannot do so because of actions taken by his previous migration agent.  He had a wife, and a daughter born in Australia, and was in a very difficult position.  He would like to make a request to the Minister and understood that his application needed to be first considered by the Tribunal.  It was impossible for him to go home now.

11. The second and third named applicants (the wife of the applicant and their first-born child) did not make claims of their own.  The second named applicant also provided information that she was born in Nepal in [year], her language is Nepali, she is a Nepalese citizen and came to Australia on a Nepalese passport.  She did not state her religion.  No claims were made specifically in respect of the fourth-named applicant when she was subsequently added to the application by the operation of regulation. 

12. The applicant initially came to Australia as a student with his wife as a dependant.  Their student status was extended in 2012.  Prior to lodging the protection application the applicant applied for a further student visa, with the second and third named applicants as dependents) but his migration agent failed to lodge the required proof of English language ability and the visa was refused.  The applicant lodged a review application at the MRT but it was out of time and the MRT found that it had no jurisdiction.  In June 2016 the first and second named applicants had an interview with a case officer concerning a bridging visa application.  This is discussed further below. 

13. In February 2018 the applicant participated in a protection interview.  He confirmed that his objective was to seek Ministerial intervention.  At this stage he also claimed that his wife (applicant two) was a Muslim and that such inter-faith marriages were a big issue in Nepal, their families have ostracised and rejected them, and he fears discrimination against himself and his wife and children.  He claimed his parents had stopped supporting his studies in Australia.  He claimed he and his wife had been spat on and harassed. 

14. At the hearing the Tribunal provided the applicant with a copy of a non-disclosure certificate covering information concerning the applicant wife’s source of income.  The Tribunal advised the applicant that the information was not relevant to its consideration of the protection application. 

15. Only the applicant attended the hearing.  He said that there was not a lot of religious violence in Nepal but there was a high degree of discrimination.  He agreed that the marriage was not prevented legally but said that the way of looking at and talking to interfaith couples was very bad, especially among the high Hindu.  Neither set of parents supported the marriage.  He and his wife had people banging on their doors and windows.  His wife could not go anywhere safely without him.  The Tribunal asked if he had ever reported such incidents to the police.  The applicant said he did but they didn’t give him copies.  Asked what he reported, he said physical harm.  Things were said to them, such as that they were going against society.  The Tribunal observed that this was not physical harm.  The applicant said people tried to push them. 

16. The Tribunal put to the applicant that during a bridging visa interview he and his wife had indicated that they did not have any fears of returning to Nepal.  The applicant said they were told to say this by a consultant.  The Tribunal put to the applicant that his protection application itself did not disclose any concerns about his interfaith marriage.  The applicant said he could not recall what he had said in his application. 

17. The Tribunal put to the applicant that he had not lodged a protection application until he had been in Australia for several years, and then only appeared to have done so as it was needed to apply for Ministerial intervention.  This could indicate he did not have a subjective fear of harm.  The applicant said he was trying to migrate by the student pathway.  Asked what he thought would happen to him if he went back to Nepal, the applicant said he did not know.  There followed a brief discussion of the applicant’s daughters, in the context of which he said they were being brought up to be familiar with the religions of both parents. 

18. After the hearing the Tribunal wrote to the applicants inviting them to comment on adverse information in accordance with s 424A.  The letter read in part as follows:

    The particulars of the information are:

    • That in a bridging visa interview on 25 June 2014 [the applicant] and [the second named applicant]
    were asked if you had any fears of returning to Nepal and you said that you did
    not, and that [the applicant] wanted to open a restaurant back in Nepal one day.

    • That in your protection interview [the applicant] stated that he wanted the Minister
    to intervene in your case and you were making a protection application so that
    you could go to the Tribunal and then ask the Minister to intervene.

    This information is relevant to the review because it indicates that you do not fear
    harm in Nepal.

    If we rely on this information in making our decision, we may find that you do not have a well-founded fear of persecution or require complementary protection, which would be a reason for affirming the Delegate’s decision.

19. The applicant submitted his daughters’ birth certificates, and the Australian citizenship document and passport of his elder daughter, and replied as follows:

    I was born in Nepal and my intention is always to do something there. The fear is there as I have been in Australia for nearly 15 years with one daughter an Australian citizen and other daughter soon will be Australian citizen in 2026.  In my circumstances, I fall into category who has fear for life. Nepal is poor country and I have young daughter. I also feel safety for my daughters as they lack language and cultural aspects of Nepal. I do not have enough money. But people will not believe. I will be targeted.  It will be unfair for Australian child to depart to Nepal. In Nepal health, education and other services are very inferior than Australia. Due to health, it may affect long term sickness.  In a scenario, Minister intervenes, I can lodge SC 143 Parent Visa in Australia.

20. The DFAT Country Information Report Nepal dated 1 March 2024 states as follows:

    The 2015 Constitution specifies that Nepal is a secular state and guarantees freedom of religion. According to the 2021 Population Census (the most recent available), 81.2 per cent of Nepalis are Hindu, 8.2 per cent are Buddhist, 5 per cent are Muslim and 1.8 per cent are Christian.

    …

    While there are no legal barriers to inter-faith marriage, in-country sources told DFAT that inter-faith marriage remained a controversial issue for many families, including Hindu/Christian marriages and Hindu/Muslim marriages. Although Nepali society has generally become more tolerant of religious and caste differences, DFAT understands that such marriages remain uncommon… DFAT assesses that followers of minority religions are generally at low risk of official or societal discrimination on the basis of their religious practices or beliefs. DFAT assesses that people who marry outside their religion are generally at low risk of societal discrimination, but this varies by family and community. Inter-religious violence is rare…

    Five per cent of the population are Muslims, the vast majority of whom are Sunni. While found throughout Nepal, most live in the Terai. There are thousands of madrassahs (Islamic schools) in Nepal, both registered and unregistered. The Government organises annual Hajj pilgrimages.

    According to local and international media reports, and in-country sources, rising Hindu-nationalist sentiment has reportedly caused apprehension among Muslim communities in Nepal. Islamophobia from Hindu-nationalist groups has also been reported in international media.

    DFAT assesses that Muslims are at low risk of societal violence…

    FINDINGS AND REASONS

21. Based on the information in their application the Tribunal finds that the first, second and fourth named applicants’ country of nationality is Nepal, and assesses their claims against that country. 

22. The applicants’ refugee claims due to an interfaith marriage may be characterised as fear of harm based on their religion.  The Tribunal accepts that the applicant and his wife are indeed from different religions. 

23. For the purpose of refugee assessment an applicant must have a subjective fear of harm.  The Tribunal does not accept that the applicant or his wife have a subjective fear of harm arising from their interfaith marriage.  No such sentiment was expressed in their protection application itself, nor in the prior bridging interview.  The main purpose of the application has been expressed as to achieve a decision from the Tribunal enabling them to request Ministerial intervention.  This is reinforced by the fact that they did not apply for protection until they already been in Australia for several years.  The fact that they had an alternative plan to seek permanent residence is not a persuasive response to this – if they had a subjective fear of serious harm, only ever being on temporary visas ought prompt a consideration of seeking protection.  The Tribunal does not accept that the applicants were told by consultant to withhold fears in their bridging interview.  That was not a logical position for any “consultant” to take or for the applicants to follow.  Moreover, even when the application was lodged there was no reference to interfaith marriage or this being a source of fear.  The subject only came up at the protection interview. 

24. The country information is consistent with the above.  Inter-religious violence is rare, and interfaith marriages are controversial and unusual but there is no evidence they result in serious harm.  Hindu nationalism is likely to present more of a barrier to such marriages than would occur between Buddhist-Muslim families. 

25. Considering all the evidence, the Tribunal does not accept that the applicant and his wife were ever spat on or pushed or publicly harassed or that their families have rejected them, or that they ever had to report any mistreatment to the police.  It considers these to be embellishments of their claims. 

26. The applicant latterly expressed general fears for his daughters in regard to their health care and education in Nepal, and their lack of familiarity with Nepalese language and culture.  He also suggested he could be targeted by other people for money.  Assuming these claims could be characterised as being for refugee reasons, the applicant did not articulate in any persuasive detail what might happen to himself and his family.  The Tribunal is not satisfied that the chance of serious harm arising from the expressed circumstances is any more than speculative. 

27. In summary, based on the evidence before it, the Tribunal is not satisfied that the applicants face a real chance of serious harm for reasons of religion or any other reason.  They do not have a well-founded fear of persecution as required by s 5J(1).  The Tribunal finds that the applicants are not refugees as defined in s 5H(1).

28. Having concluded that the applicants do not meet the refugee criterion, the Tribunal considered whether they meet the complementary protection criterion.  Although subjective fear of harm is not a criterion for complementary protection obligations, the actions of the applicants can be relevant to an assessment of real risk, as is the country information.  Here the county information does not disclose a real risk of significant harm, and the applicants did not advance reasons why they might be harmed until late in the day.  The Tribunal has not accepted that the applicants face 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 they will suffer significant harm, as defined, in relation to those claims. 

29. Accordingly, the Tribunal is not satisfied that there are substantial grounds to believe that there is a real risk that the applicants will suffer significant harm on return to Nepal within the meaning of the complementary protection provisions.  

    CONCLUSION

30. In relation to the third named applicant subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is a non-citizen. Indeed, the object of the Act is to regulate the presence in Australia of non-citizens, and visas cannot be granted to Australian citizens (see s 4 and s 29 of the Act). 

31. The applicant submitted and Department records confirm that the third named applicant is an Australian citizen since March 2023. It follows that she does not satisfy the requirements of s 36(2), and cannot be granted a protection or any other visa.

32. For the reasons given above the Tribunal is not satisfied that any of the other 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.  None of these applicants are a member of the same family unit as any other person to whom Australia has protection obligations and who holds a protection visa of the same class It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c).

33. As the applicants do not satisfy the criteria for a protection visa, they cannot be granted the visa.

34. Considering the length of time the applicants have resided in Australia including that the two children, now well into school age, were born here and one is an Australian citizen, and undoubtedly will experience hardship if separated from the parents or have to go and live in a country that is unfamiliar to them and significantly less resourced, the Minister may wish to consider exercising his power to substitute the Tribunal’s decision with a more favourable one. 

    DECISION

35. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Genevieve Hamilton
    Member