1813545 (Refugee)

[2021] AATA 4749

1813545 (Refugee) [2021] AATA 4749 (21 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1813545

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Amanda Paxton

DATE:21 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 21 October 2021 at 3:58pm

CATCHWORDS

REFUGEE – Protection visa – Nepal – member of Communist Party of Nepal United Maoist Leninist – persecution from Maoist Revolutionaries – Maoist attack on house – inconsistencies relating to attack on house – civil war ceased – no profile – able to access mental health care in Nepal – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

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 applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Nepal, applied for the visa on 15 December 2014. The delegate refused to grant the visa on 17 April 2018 on the basis that the applicant was not is a person in respect of whom Australia has protection obligations under either the refugee or complementary protection provisions.

3. On 10 May 2018, the applicant validly applied for review of the delegate’s decision to the Tribunal, attaching a copy of the delegate’s notification and decision record to the application.

4. The applicant appeared before the Tribunal on 7 September 2021 to give evidence and present arguments. The applicant was invited to a hearing by MS Teams video conference, as the hearing was held when COVID-19 pandemic restrictions were in place.  In spite of a successful MS Teams test dial on 30 August 2021, the applicant experienced difficulty in obtaining a video conference connection at the time scheduled for hearing. The applicant agreed to appear by telephone connected to MS Teams platform, such that the applicant was able to hear his representative, the interpreter and Tribunal.

5. The applicant was represented in relation to the review by his legal representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

6. The applicant’s legal representative and the interpreter appeared by MS Teams video conference. The Tribunal considered the applicant’s responses were clear and appropriate to the Tribunal’s questions. The Tribunal was satisfied that the applicant was able to give evidence and present arguments to the Tribunal throughout the hearing. The applicant and his representative indicated they were also satisfied the applicant had been able to respond fully, give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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).

9. 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.

10. 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

11. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Credibility

12. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

13. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[2]

    [1]  Migration Act 1958, s.5AAA.

    [2] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.

14. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility. Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted.[3]

    [3] Guo v MIEA; Pan v MIEA (1996) 64 FLR 151 per Foster J at 194.

15. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[4] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.[5]

    [4] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, re-issued February 2019) (Handbook) at [196].

    [5] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.

    CLAIMS AND EVIDENCE

16. The issues in this case are whether 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

17. In reaching its decision, the Tribunal has taken into account all of the evidence before it. It has also taken into account independent country information about Nepal, including that referred to by the delegate in the decision record, a copy of which was provided with the review application.

    Nationality

18. The applicant claims to be a national of Nepal. He has provided the Department with a copy of the bio-page of his Nepal passport, issued [in] 2013 and expiring [in] 2023.[6] This and his other documentary (including translation of his birth certificate[7] and marriage certificate)[8] and oral evidence supports this claim. On the available evidence, and in the absence of any contrary information, the Tribunal finds that he is a national of Nepal. This is therefore the country of reference for the purpose of assessing his refugee claims, and the receiving country when assessing his eligibility for complementary protection.

    [6] [File number], f. 79.

    [7] Ibid, f. 85.

    [8] Ibid, f. 82.

    Written claims for protection

19. The applicant’s written claims for protection were first put forward in a statutory declaration[9] attached to the Form 866C and can be summarised as follows.

    [9] Ibid, ff. 34 - 36

    ·     The applicant claims he left Nepal due to persecution from the Maoist Revolutionaries.  He states that as a member of the Communist Party of Nepal United Maoist Leninist (CPN (UML)) he was targeted for refusing to join the Maoist Revolutionaries, an extremely violent rebel group, established in 1996. The applicant claims that anyone who refused to join the Maoist Revolutionaries or who opposed them, is subject to extremely terrifying treatment, including death, torture, beatings, sexual assault, looting of homes, confiscation of land and homes being set on fire.

    ·     The applicant, together with other party members, was responsible for enforcing the CPN (UML)’s political policies in the village of [Village 1] in relation to education, water, irrigation, health and implementing opportunities in the poorer villages.

    ·     In 2004, the applicant was living with his first wife, their son and his father.  Members of the rebel group came to the applicant’s home and despite his refusals they insisted he join their organisation. They became very angry and kicked and beat the applicant repeatedly until he fell to the ground and was almost unconscious.  Before they left, they threatened that if he did not join their organisation they would return, destroy his home and family, and kill him.

    ·     Around two weeks later, around 15 to 20 rebels returned, setting the applicant’s house on fire and confiscating his land. They made it clear to the applicant that he was being targeted because of his membership with the opposing party.  Before leaving, they threatened that next time they would kill the applicant.

    ·     The applicant claims that as he could no longer live in his house or on his land, he was forced to move with his family to Kathmandu, using the small amount of money salvaged before his house burnt down.

    ·     Due to the limited money they had, the applicant and his family (including his father) relied on the applicant’s sister for accommodation in Kathmandu.  They lived with the applicant’s sister for three to four months, before he found a small place to live with his family.

    ·     As the applicant was still a CPN (UML) member, and the rebels were everywhere in Nepal, he was still a target and feared for his life.  As he did not want to endanger the lives of his family, the applicant went to [Country 1] for two years, where he worked in a [workplace].  While in [Country 1], the applicant’s family in Nepal still moved around regularly because they were known to the rebels and not entirely safe. The applicant received information from his home village that he was still a target of rebels who were holding a grudge against him. 

    ·     The applicant returned to Nepal in 2007 and lived in Kathmandu from 2007 until September 2014 before travelling to Australia. While in Kathmandu, he was forced to live in different places to avoid detection by the rebels, living at various rental places and with other relatives.  On one occasion when he was not home, three unknown people came to his house asking about the applicant’s whereabouts.  The applicant’s family knew that the men were part of the rebels so they said that the applicant was not in the country.  The following morning the applicant again relocated as he feared for his life.

    ·     The Maoist Communist party was still very powerful and feared. The applicant felt that he could not go to the police because in Nepal the police cannot act against these violent people. The applicant was afraid that if he went to the police with any of his claims, the rebels would find out (which is common in Nepal), causing them to become more angry, and giving them more reason to attack him and his family.

    ·     The applicant believes that if he returns to Nepal, the rebel group members will be after him and he will live with anxiety and constant fear.  He believes he will have to keep moving every time he is informed that the rebels are getting closer (as they are targeting the applicant) which is becoming extremely hard for his family.

    ·     The applicant says that his village knows that he is currently in Australia because information travels quickly amongst people.  The applicant says that he hopes that if the rebels know that he is not in Nepal, they will not try to target his family.

    ·     The applicant seeks protection in Australia as he fears for his life should he be forced to return to Nepal.

20. The applicant provided the following evidence to the Department in support of his protection visa application: 

    ·     An identification card in the form of a Communist Party of Nepal Organised Membership Card[10] together with an English language translation.[11]

    ·     A letter of support dated [February] 2018 from the Communist Party of Nepal (Unified Marxist–Leninist).[12]

    ·     A letter dated [February] 2018 from [Rural] Municipality attesting to the applicant’s displacement due to political conflict.[13] 

    ·     An English translation of a newspaper article dated [September] 2004 documenting a house torched by Maoists.[14]

    ·     A translation of the applicant’s Birth Registration Certificate.[15]

    ·     The applicant’s Itinerary dated August 2014.[16]

    ·     An [electricity] bill.[17]

    ·     A translation of Marriage Registration between the applicant and his wife.[18]

    [10] [File number]. f. 101.

    [11] Ibid, ff. 66-80 & f. 93, ff. 101 – 102.

    [12] Ibid, f.105.

    [13] Ibid 104.

    [14] Ibid, FF 99 – 100.

    [15] Ibid, f.85.

    [16] Ibid, f. 84.

    [17] Ibid, f. 83.

    [18] Ibid, f. 82.

    Pre-hearing submission

21. A pre-hearing submission was lodged by the applicant’s legal representative on 12 August 2021 which included a copy of the applicant’s prescription for Citalopram 20 mg, an anti-depressant.[19]

    [19] AAT 1813545, Doc Id. 8701088, 12 August 2021.

22. In his prehearing submission, his representative states the applicant relies on his statement to the Department as well as some additional information provided in the submission, including updated and current country information relating to Nepal. In this submission the applicant’s claim to fear persecution due to his status as a member of the communist party in Nepal, the CPN (UML), is reiterated. It is claimed the applicant held strong political views and was a vocal member of the UML group, and assumed greater responsibilities in the group from 1993 in relation to education, water, irrigation, health matters and implementing opportunities for poorer villagers.  It is claimed the applicant had notoriety in the region and this led to threats against him from Maoist rebels after 1996.

23. Claims and evidence in addition to that provided to the Department previously are summarised as follows:

    ·     It is submitted that since the applicant’s arrival in 2014, he has been able to support the family he left behind in Nepal. Through his absence, his family have been able to avoid harm and live a relatively safe life, without threats from the Maoist Revolutionaries or other rebel groups looking for the applicant.

    ·     It is claimed that the newspaper article dated [September] 2004 provided to the Department in support his claim that his house was burned by rebels was published three months after the event because the media were intimidated by the rebels, and country information was provided in support of this claim.

    ·     Information about the Communist Party of Nepal Maoist (CPN (M)) led by Netra Bikram Chand (Netra Bahadur Chanda, or Biplav) is provided in support of the applicant’s claims that this group was responsible for action against him in 2004.

    ·     It is claimed the applicant is being hunted by a small number of Maoist Revolutionaries and that members of the Netra Bikram Chand group have placed a bounty on the applicant’s life. Should the applicant return to Nepal, his notoriety alone will warrant the price of his life.

    ·     It was submitted that the country information relied upon by the Departmental delegate was not current and additional country information relating to Nepal was provided. It is submitted that ongoing instability in Nepal continues to debilitate the county’s social and political landscape, that intraparty conflict threatens government security and that there is continued resistance of rival groups. [20]

    ·     It is submitted that the Maoists continue to grow in strength, pushing Nepal into conflict once again. It is submitted that this foreshadows a strong likelihood of violence against the applicant if he is to return. A newspaper report from April 2019 is submitted suggesting that a new Maoist conflict is on the horizon as Maoists continue to grow in strength.[21] And an article of 13 March 2019, setting out instances of bombings across Kathmandu conducted by Maoist group, Netra Bikram Chand, reports that the Chand-led Maoist party were declared a criminal group on 11 March 2019.[22] Information is also submitted suggesting that although a peace agreement was subsequently reached between the government this group in March 2021, the party’s factions continue to threaten the government and its people.[23]  A report states that the Chand-led Maoist rebel group has the upper hand in many of its strategic stronghold areas like Rolpa, Rukum, Kapilabastu, Dang, Sindhuli, and Lalitpur, with 10,000 to 12,000 active cadre support across the country.[24]

    [20] The times of India, ‘Nepal Crisis: Ruling CPN-UML forms 10-member task force to resolve party disputes’ (18 May 2021) < Aljazeera, ‘The spectre of a new Maoist conflict in Nepal’ (21 April 2019). < Ibid.

    [23] Crisis 24. ‘Nepal Country Report’ (2021). < Ibid. 

1. A list of reported attacks by the Chand-led Maoist revolutionary group is supplied and reports of active Maoist cadre support across the country are, inter alia, as follows:

   ·Abduction and murder of a schoolteacher (August 2021);[25]

   ·Five bomb attacks across Kathmandu and Lalitpur (26 May 2021);

   ·Bomb attack at the residence of ex-Minister for Communications, Gokul Baskota (11 March 2020);[26]

   Bomb attacks on Ncell Telecommunications tower, Kathmandu (22 February 2019 and 11 June 2016).[27]

   [25] The Kathmandu Post, ‘Chand party’s killing of school principal is a grim reminder of the Maoist conflict’ (3 August 2021) < Society for the study of Peace and Conflict, ‘NEPAL: New Left-Wing Extremism and Impending Threat’ (20 March 2020) < Ibid.

Relevant country information

In the following assessment, the Tribunal has taken into account country information provided by the DFAT Country Information Report for Nepal, dated 1 March 2019, and put to the applicant, which reports the following.[28]

[28] DFAT Country Information Report Nepal, 1 March 2019.

Recent History

…

2.3 In 1996 the Unified Communist Party of Nepal (Maoist) (UCPN-M) began a nationwide violent insurgency against the government leading to a ten-year civil war. Almost 18,000 people were killed and over 1,300 disappeared before a peace accord was struck in 2006 following an agreement between the Maoists and an alliance of seven Nepali political parties.

2.4 In February 2005 the then-king assumed absolute power in a coup supported by the army. A people’s movement in April 2006 and a joint alliance of democratic parties and the Maoists forced the king to relinquish direct rule. Parliament subsequently agreed to abolish monarchical rule, and Nepal became a republic in 2008 with the election of the first Constituent Assembly. The Maoists formed the first government, which proved to be short-lived, resigning in May 2009. A coalition government was then formed until it, too, resigned in July 2010. In September 2011, Dr Baburam Bhattaerai of the UCPN-M party formed government with the Madhesi alliance from the Terai. Political stalemate and questions concerning Nepal’s federalist structure and how to accommodate ethnic and linguistic minorities led to the dissolution of the first Assembly in 2012.

2.5 After repeated delays, elections for the second Constituent Assembly were held in November 2013. International observers described the elections as free and fair, with a voter turnout of 78 per cent despite threats of violence by a break-away Maoist group. The Nepali Congress (NC) and the Communist Party of Nepal (Unified Marxist-Leninist) or CPN (UML) were elected to govern Nepal under a coalition agreement that gave them an almost two-thirds majority in the Assembly. The UCPN-M, which had led the insurgency and had dominated the 2008 election, managed to secure only 80 of the 575 directly elected seats.

2.6 An 85 per cent majority vote by Constituent Assembly lawmakers on 16 September 2015 approved a new Constitution which was subsequently promulgated on 20 September 2015. The new Constitution was agreed upon after considerable negotiation and delays. The political stalemate surrounding the development of a new constitution had ended in June 2015 when the four major political parties agreed to proceed with negotiations, focusing on the key points of federalism, the form of government and elections, and the judiciary. Under the new Constitution, Khadga Prasad Oli of the CPN-UML was elected Prime Minister in October 2015.

2.9 Several changes of government, including realignment of coalitions, resulted in two further changes of Prime Minister before national elections were held over two phases in November and December 2017. These saw landslide results in favour of the Left Alliance comprised of the CPN-UML and the CPN-Maoist Centre parties. The two parties merged in early 2018 to form the Nepal Communist Party (NCP), which now holds a close to two-thirds majority in the Federal Parliament, led by Prime Minister KP Oli for his second term. The coming years will see Nepal’s complex transition to a new federalist system.

2.10 According to the CIA World Factbook’s July 2017 estimate, Nepal’s population is 29.3 million. Approximately 125 caste and ethnic groups are reported in the 2011 census. Nepali (a language of Sanskrit origin written in the Devanagari script) is the national language spoken by approximately 47 per cent of the population. Around 123 languages or dialects—including Maithili (spoken by 12 per cent), Bjojpuri (six per cent), Tharu (six per cent), Tamang (five per cent), Newari (three per cent), Magar (three per cent) and Bajjika (three per cent)—are also in use. English is widely spoken in the government and business sectors.

2.11 Nepal is divided into three natural east-west geographical zones. Along its southern border is a strip of flat, fertile land known as the Terai, an extension of the vast north Indian plain. The central strip comprises the Middle Hills, rising to 3,400 metres and interspersed with fertile valleys, of which the Kathmandu Valley is the largest. Most of the population is divided almost equally between the southern plains of the Terai region and the central hilly region. The northern strip is formed by the Himalayas, an unbroken mountain range containing eight peaks higher than 8,000 metres, where a much smaller number of people live.

2.12 Kathmandu, the capital, has an estimated population of 1.33 million people. Approximately 20 per cent of the population live in urban areas, a number which has grown rapidly in recent years. Inequalities exist across geographic regions and ecological zones, and between urban and rural areas. Ethnic and caste distinctions remain influential in Nepali society and the civil war period was characterised in part by a rise in identity-based politics and increased polarisation.

SECURITY SITUATION

2.41 The overall security situation throughout Nepal has dramatically improved since the end of the conflict. However, poverty, unemployment, weak rule of law and a culture of impunity are causes of insecurity in Nepal. Recent elections including in November 2017 were affected by violence including political candidates being shot at, improvised explosive devices and landmines being planted and violent protests. Political protests and demonstrations occur regularly and can turn violent without warning. Political parties have been known to enforce strikes (bandhs see Private Sector/Business Community), which can close down transport and business operations for extended periods, although these have occurred less frequently in recent years.

Political Opinion (actual or imputed)

3.38 All Nepali citizens 18 years and older are eligible to vote. Under the 2015 Constitution seats in the Federal Parliament are reserved for women through quotas, and substantial, proportional allocations made for Madhesis, Dalits, and other minority groups.

3.39 Political affiliation, both at an organisational and individual level, is an important aspect of identity. This was a cause of instability during the conflict and in the years immediately following. Political youth wings, bandhs (strikes, see Private Sector/Business Community), demands for donations from local authorities and the private sector, and the obstruction of tender-bidding processes in line with political interests all contributed to this instability.

3.40 A diverse and competitive array of political parties operates in Nepal, though the system has faced considerable instability in recent years. Unlike the 1990 constitution, the 2015 Constitution has no limitation on parties formed along ethnic lines leading to many ethnic groups to participate formally in political processes, motivated by a belief that they have been excluded from a society that has historically been ruled by dominant ethnic and caste groups.

3.41 Nepal has enjoyed several years of political stability. A lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. DFAT assesses the risk of a return to widespread violence is low.

Fear of Maoists

3.42 Communist parties won the 2017 elections in both the parliament and the provincial assembly. The main far left parties, Communist Party Nepal (Unified Marxist-Leninist) CPN-UML and Communist Party Nepal (Maoist Center) merged in 2018. Before political groups were allowed to politically organise in 2015, Maoists recruited from among ethnic minorities who participated in their insurgency.

3.43 Tens of thousands of people displaced by the long period of conflict in Nepal (see Recent History) remain displaced. As part of the peace process, Maoists and the government agreed on a programme to allow displaced people to return to their homes. The land once belonging to many displaced people had since become occupied illegally or been given away or sold by the Maoists during the civil war. Some displaced people lack documentation, preventing them from reclaiming their property.

3.44 While the two main Maoist parties have merged, the movement has a history of internal splits and the ideology of the two main groups, while merged, is inconsistent. Historical claims of abuses during the insurgency remain unresolved.

3.45 Maoists have the potential to control the national agenda without resorting to violence. In general, DFAT assesses that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants.

CONSIDERATION OF CLAIMS AND FINDINGS

At the commencement of the hearing, the Tribunal enquired about the applicant’s mental health, noting he has put forward evidence that he has been prescribed anti-depressant medication. He told the Tribunal that he was feeling fine. He stated he had been depressed for a long time and three or four months ago, on the advice of his brother, he discussed his mental health with his doctor and was prescribed the medication. His doctor will review the applicant’s mental health when the prescription finished. He told the Tribunal that the medication prevents him from over thinking and it can make him feel dizzy, but he was feeling fine for the hearing. The Tribunal observed the applicant responded appropriately to questions at hearing and the Tribunal was satisfied the applicant was able to give evidence and argument fully.

The applicant told the Tribunal that he had assistance from his legal representative in making his statement and that he understood the Department’s decision because his brother had explained it to him.

Background

Based on the documentary evidence before it and the applicant’s consistent evidence in his written application to the Department and at his Tribunal hearing, the Tribunal is satisfied the personal details provided by the applicant are correct. The Tribunal accepts the applicant was born on [date] ([age] years old) in [Village 1], [district], Nepal, and is a citizen of Nepal by birth.[29]

[29] [File number], f. 32.

The Tribunal accepts the consistent evidence of the applicant that he travelled to [Country 1] [in] April 2005 on an employment visa and remained there until [May] 2007. The Tribunal accepts the information provided by the applicant in his Form 866 that he arrived in Australia [in] September 2014 as the holder of a Sponsored Family Visitor visa and has not departed Australia since his arrival.

Based on the applicant’s consistent evidence in his written application to the Department, confirmed at hearing, the Tribunal accepts the applicant’s ethnicity is [deleted], that his religion is Hindu, and that he can speak, read and write Nepalese.[30] On the basis of his consistent evidence across his interview with the Department and at hearing, the Tribunal accepts the applicant’s parents are deceased, that he has one sister in Nepal, and a brother, an Australian citizen, who has been in Australia for more than 12 years. At hearing the applicant stated that his uncle’s sons remain in the village of [Village 1]. At hearing, the applicant confirmed that his father, who travelled to Australia with the applicant, returned to Nepal in 2016 and subsequently passed away.

[30] Ibid, f.32.

Based on the applicant’s consistent oral evidence and documentary evidence, the Tribunal accepts the applicant married his first wife in early 1989[31] and they had a son on [date].[32]  The Tribunal accepts the applicant married his second wife [in] May 2010[33] and his second son was born in Nepal on [date].[34] 

[31] Ibid, f.36.

[32] Ibid, f.15.

[33] Ibid, ff. 32, 34- 36.

[34] Ibid, f.15.

The applicant gave evidence that since his arrival in Australia, he has been working on farms, initially in Victoria, and for the past four years at a [farm] in Queensland.

Assessment of claims and evidence

Political affiliation

The applicant gave evidence at hearing that he grew up in [Village 1], a small village in [district], and that after High School he farmed [produce] among other things on the family land. He stated he commenced membership of the CPN (UML) in 1993 and has kept his membership current, the last renewal being in 2017. The applicant submitted a membership card of the CPN (UML) which includes a photo of the applicant and seals, as evidence. On the basis of this document and the applicant’s consistent testimony, the Tribunal accepts the applicant was a member of the CPN (UML).

The Tribunal has considered the applicant’s written claim that he, together with other party members, was responsible for enforcing and implementing the CPN (UML)’s political policies in the village of [Village 1]. The Tribunal has also considered claims made on the applicant’s behalf in the pre-hearing submission that the applicant was a vocal member of the CPN (UML) group and assumed greater responsibilities in the group from 1993.  

In response to questions about the nature of his role as a member of the CPN (UML) at hearing, the applicant described his activity as a member of the CPN (UML) as lobbying for health and education as well as providing water. When invited to expand on what he meant by ‘lobbying’, the applicant was unable to provide more detail and the Tribunal was not able to establish what the applicant did in relation to his interest in these areas. He said that because his parents were involved in agriculture this was his interest and that he put forward ideas about these things. The applicant told the Tribunal he did not have any role in the party.  

In considering the political profile of the applicant, the Tribunal takes into account evidence he provided at his interview with the Departmental delegate as set out in the delegate’s decision record provided to the Tribunal by the applicant, that he got people together in order to discuss and implement party plans. As set out in the delegate’s decision record provided to the Tribunal by the applicant, he stated at interview that he was actively involved in the CPN (UML) between 1993 and 1996. The Tribunal has also considered the letter dated [February] 2018 provided to the applicant by the President of the CPN (UML) in the [Rural] Municipality of [Village 1] which, without providing dates or any details, indicates the applicant worked in various committees. Giving weight to the applicant’s oral testimony at interview and at hearing, the Tribunal accepts the applicant was involved in CPN (UML) committees in [Village 1] between 1993 and 1996.

The Tribunal acknowledges that the period since 1993 spans almost 30 years and that the applicant may not be able to remember his political activities in detail. However, the Tribunal considers that if the applicant was a vocal member of the CPN (UML) group who assumed greater responsibilities in the group as claimed, he would recall some activities involved in lobbying for policies. The lack of detail in the applicant’s response raised serious concerns about the credibility of the applicant’s claim to have had political responsibilities in the community or a role in enforcing or implementing CPN (UML) policy in [Village 1].

Taking into account all the evidence before it and giving weight to the oral evidence of the applicant, the Tribunal accepts the applicant was identified in the village as a member of the CPN (UML) and that he was involved in activities associated with the party between 1993 and 1996. However, on the basis of the applicant’s own testimony that he did not have any role in the party, the Tribunal does not accept the applicant assumed greater responsibilities or had a profile other than as an ordinary member of the CPN (UML) since 1996. The Tribunal does not accept the applicant was a vocal member of the UML or that he had notoriety in the region for his political involvement. The Tribunal finds the applicant was identified as an ordinary member of the CPN (UML) in [Village 1] prior to his move to Kathmandu in 2004. The Tribunal does not accept the applicant had any role or responsibility for enforcing or implementing CPN (UML) policy in [Village 1] as claimed.

2004 Maoist attack

In his written statement the applicant claims that in 2004 he was assaulted by Maoist Revolutionaries insisting that he join them. He claims that in response to his refusal his house was set on fire. At hearing the applicant expanded on these claims, stating that during the insurgency in Nepal Maoist Revolutionaries were attacking people and forcing them to join the party, threatening to kill them if they did not.

In considering the applicant’s claims, the Tribunal has taken account of the applicant’s oral evidence, a newspaper article in [newspaper] dated [September] 2004, a letter from the Ward President of [Rural] Municipality dated [February] 2018 and letter from the President of [Rural] Municipality, CPN (UML) dated [February] 2018, and DFAT country information about this period in Nepal.

The applicant’s own evidence concerning his assault and the house fire was confused and inconsistent. At hearing, the applicant stated that in the middle of 2004, Maoists approached him and beat him badly and the next day they burned the house. Inconsistent with this claim, the applicant later stated at hearing that his house was burned a couple of days after the visit by the rebels. He also referred to a newspaper article (discussed below) in the [newspaper] dated [September] 2004, which states that the applicant provided them with a report that ‘last Monday the cadres of Communist Party of Nepal Maoist have torched and destroyed the house of’ the applicant and that he was ‘fatally attacked by the cadres of Communist Party of Nepal Maoist some time ago.’ In further enquiry, the applicant stated that the house was burned 10 to 15 days after he was beaten. The letter from the [Municipality] is unclear in this respect, indicating that the applicant was displaced because of the Maoist conflict and that he was seriously beaten while he was displaced. The Tribunal acknowledges that a long period has passed since 2004 and that memory can lapse over time. However, the Tribunal considers the time between the assault and the fire is significant and would be memorable, and the Tribunal would expect consistency in accounts. The lack of consistency and confusion across these accounts about the timing of the assault relative to the claimed burning of his house leads the Tribunal to have serious concerns about the credibility of these claims.

As set out in the delegate’s decision record provided to the Tribunal by the applicant, the delegate was concerned that the date of the newspaper article did not support the applicant’s claims because it was published three months after the claimed time of the incidents. At hearing, the applicant stated that during that period no one could report incidents because they were scared of reprisal from the rebels, so the newspaper made the report later in the year. The Tribunal noted that according to the article, the applicant had provided the information to the paper, so the Tribunal would expect it to be consistent with the applicant’s account of events. The Tribunal enquired why the newspaper article would report that the fire happened ‘last Monday’. In response, the applicant repeated that journalists were scared to publish reports. The applicant also stated he was in Kathmandu when the story was published, and that it happened a long time before. The Tribunal was not satisfied this explained why the newspaper would inaccurately report that an event occurred more recently.