1816778 (Refugee)

[2019] AATA 6366

1816778 (Refugee) [2019] AATA 6366 (5 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1816778

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Paul Windsor

DATE:5 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 05 September 2019 at 11:47am

CATCHWORDS
REFUGEE – protection visa – Nepal – Federal Circuit Court remittal – procedural fairness – failure to disclose s 438 certificate – particular social group – inter-caste marriage – previous protection visa application refused on refugee criterion – complementary protection criterion – credibility concerns – fraudulently altered passports – inconsistent evidence – delay in seeking protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2

CASES
AMA15 v MIBP [2015] FCA 1424
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run
Juan (1996) 40 ALD 445

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA (1994) 34 ALD 347

SZRNJ v Minister for Immigration [2014] FCCA 782

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 on 5 August 2015 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. [Mr A] and [Ms A] made the application for Protection visas to the then Department of Immigration and Border Protection (the Department) on 31 December 2013.  Their daughter, [Child B], who was born in [City 1] in Victoria Australia on [Date 1], was included in [the] parents’ application on 11 August 2014.

3. A summary of the relevant law applicable in this case is at Attachment A.

   Previous Protection visa application by [Mr A]

4. In this case, [Mr A] has previously made an unsuccessful application for a Protection visa (in the name of [Mr C], date of birth [Date 2], the identity he used when he entered Australia).  This application was lodged on 26 February 2010 and refused on 2 June 2010[1].  The date of refusal was prior to the implementation of the complementary protection provision. 

   [1] See folios 47-50 of Tribunal file 1816778.

5. As the current Protection visa application was lodged on 31 December 2013, prior to legislative amendments to section 48A of the Act that came into effect on 28 May 2014, and in light of the findings in SZRNJ,[2] section 48A of the Act did not apply to prevent [Mr A] lodging a subsequent Protection visa application on the basis of complementary protection claims and member of the same family unit criteria at subsections 36(2)(b) and (c).  In this regard, while the Tribunal notes that the delegate has considered [Mr A]’s claims against both the refugee and complementary protection criteria for a Protection visa, the Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), and subsections 36(2)(b) and (c), where an applicant has previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of this authority, the Tribunal has considered [Mr A]’s claims in relation to the complementary protection criterion in s.36(2)(aa) and the member of the same family unit criteria at subsections 36(2)(b) and (c) only.

   [2] SZRNJ v Minister for Immigration [2014] FCCA 782.

   Background

6. In the Protection visa application [Mr A] claimed to be a citizen of Nepal who was born in Nawal Parisi Nepal on [Date 3].  He stated he is a Hindu.  He indicated he was married in Chitwan, Nawal Parisi [in] February 2009.  He stated he entered Australia on ‘OTHERS PASSPORT’ [in] September 2009.  [Ms A] claimed to be a citizen of Nepal who was born in Nawal Parisi Nepal on [Date 4].  She stated she is a Hindu.  She indicated she was born on [date].  She stated she entered Australia on ‘OTHERS PASSPORT’ [in] September 2009 (as discussed below she actually entered Australia [in] September 2010).[3]

   [3] See folios 2-45 of the Departmental file.

7. In the Protection visa application [Mr A] and [Ms A] claimed their lives were in danger in Nepal from their parents, relatives, other village people and society because theirs was an inter-caste marriage and [Mr A] married without his father’s approval.[4]

   [4] See folios 20-23 and 36-39 of the Departmental file.

8. The delegate refused to grant the visa because she found the applicants’ claims to protection were not credible and that they do not hold a genuine subjective fear of harm in Nepal; and was not satisfied that there is a real risk they would suffer significant harm if returned to Nepal.  The delegate also found that s.36(3) of the Act applied in this case as she was not satisfied that the applicants had taken all possible steps to avail themselves of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia (that country being India).

9. The applicants sought review of this decision by the Tribunal on 11 August 2015.  They did not provide the Tribunal with a copy of the delegate’s decision record.

10. On 9 December 2016 the Tribunal, differently constituted, affirmed the decision not to grant the applicants Protection visas.

11. [In] May 2018 the Federal Circuit Court of Australia quashed the Tribunal’s decision of 9 December 2016 noting that it had been conceded that the applicants had been denied procedural fairness, constituting a jurisdictional error, because a certificate had been issued pursuant to s.438(1)(a) of the Act, the existence of which was not disclosed to the applicants, and at least some of the documents which were the subject of the certificate were relevant, or potentially relevant, to the issues arising in the review.[5]

    [5] See folio 616 of the Departmental file.

12. The applicants appeared before the currently constituted Tribunal on 28 August 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

13. The applicants were represented in relation to the review by their registered migration agent.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Claims

14. [Mr A]’s claims from his Protection visa application are summarised as follows:[6]

    ·He could not live in Nepal because of his marriage.  He faced family and societal pressure.  His family threatened to destroy them and to punish and kill him because he was engaged to someone of a different caste.  The situation in the village was intolerable and they had to flee for their safety.

    ·His wife was beaten and threatened that she would be killed.  She was kicked out of the house and made to live in a shed for three weeks.

    ·His daughter is living with her grandparents.

    ·If he goes back they will take revenge on him and may do anything, for example beat him, burn him, and punish him physically, mentally and socially.  He fears his and his wife’s lives are in danger from his parents, relatives, other village people and society.  In the past relatives were harmed and girls forced to marry.

    ·The authorities won’t protect him because they do not care.  These events are normal/regular and family matters are not investigated by the police.

    [6] See folios 36-39 of the Departmental file.

15. [Ms A]’s claims from her Protection visa application are summarised as follows:[7]

    ·She could not live in Nepal as she was threatened by family, relatives and villagers because of her marriage.

    ·They were harmed a few times.  She has been hurt, beaten and treated very badly.  She was kicked out of the house and asked to live in the shed for three weeks.

    ·She fears worse if she returns.  They will surely beat her, punish her and may burn her alive.  The village people are backing her husband’s father.

    ·They are at risk anywhere in Nepal.  She fears harm from her father and her husband’s father, relatives and other village people.  Things like this happen to people in their village.  There have been cases where people have been beaten to death and girls get married to the person chosen by their parents or suffer serious harm.

    ·Her husband’s father did not like them getting married without telling him so he is doing his best to break up the marriage.

    ·Their daughter is living with their grandparents.

    ·They wanted a place where they could live safely without fear.

    ·The authorities won’t protect her.  They did nothing during and after the event with one of the village people so they believe they will do nothing for them.  They have no protection.

    [7] See folios 20-23 of the Departmental file.

16. The representative made a submission in support of the review application on 16 August 2019.[8]  It is submitted that the applicants have a well-founded fear of persecution as they are members of a particular social group based on their inter-caste marriage.  The representative asserts that the applicants’ fear has been generated by their own family members as a by-product of the long-standing practice (in Nepal) of not accepting inter-caste marriages.  The representative states that, further, ‘the applicant as a deviant from the norms and values of the community is at real risk of persecution at the hands of his family members and community’ and that, ‘adding to the detriment of the applicant, 70% Pahadiyas (people living in hill) have been displaced in Madhesh after 2008, in the wake of new ethnic sentiment’ and thus, ‘not only as a deviant but as a member identified as a Pahadiya Community in Madhesh, the fear owed by the applicant is not ‘far-fetched’ but ‘real’’.

    [8] See folios 22-27 of Tribunal file 1816778.

17. The representative also comments that the applicants advised they had to obtain fraudulent documents to enter Australia as they did not have enough time for the preparation to sit for the English test and prepare other documents required for the Student visa application and as they wished to flee Nepal as soon as possible they used fraudulent documents.  The representative comments that they would not have left their child, who was only nine months old when they decided to flee their home country, in the custody of a third party in Nepal if they did not have to flee their home country.

18. The representative states they are further advised that the inconsistencies between the information provided with the application and at the first Tribunal hearing is because the applicants were unable to understand the questions raised by the Department during the interview and Tribunal hearing.

    Findings and reasons

    Identity

19. Considering the identity documents provided to the Department (in particular the Nepalese passport [number] submitted by [Mr A], which was found by the Department to be genuine, and his Nepali Citizenship Certificate; the Nepali Citizenship Certificate submitted by [Ms A] at the interview with the delegate; and the Birth Certificate submitted for [Child B]), and noting the delegate’s consideration of and findings in relation to this matter, the Tribunal finds that the applicants are citizens of Nepal as claimed.  Accordingly, the Tribunal finds that Nepal is their country of nationality for convention purposes and is their ‘receiving country’ for complementary protection purposes.[9]

    Key Issues

    [9] See folios 99 and 120-128 of the Departmental file.

20. The key issues in this review are whether [Ms A] and/or [Child B] face a real chance of suffering treatment amounting to persecution involving serious harm from their parents, siblings, relatives, other village people and society if they were to return to Nepal, because [Mr A] and [Ms A] entered into an inter-caste love marriage against the wishes of their families and against community norms; and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Nepal, there is a real risk that [Mr A], [Ms A] and/or  [Child B] will suffer significant harm for the purpose of s.36(2)(aa) of the Act.

21. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

    Credibility

22. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

23. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, 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.

24. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

25. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

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

27. For the reasons set out below the Tribunal found the applicant’s evidence generally to be vague, lacking in detail, inconsistent and unconvincing.  The Tribunal did not find key elements of the applicants’ claims to be credible and finds that they have concocted these claims to support their case for protection.  

    Section 438(1)(a) certificate and Federal Circuit Court of Australia decision of [May] 2018

28. At the start of the hearing the Tribunal explained to the applicants that the decision of 9 December 2016 by the previous Tribunal had been quashed by a Judge of the Federal Circuit Court of Australia (FCCA) [in] May 2018 on the basis that it was affected by jurisdictional error because the existence of a certificate made under s.438(1)(a) of the Act was not disclosed to them, and the Judge considered that at least some of the documents that were the subject of the certificate were relevant, or potentially relevant, to the issues arising in the review.

29. The Tribunal advised the applicants that it was now disclosing the presence of the certificate to them.  The Tribunal showed the applicants a copy of the certificate and explained that it was issued by a delegate of the Minister for Immigration and Border Protection on 5 August 2015.  The Tribunal explained that the certificate stated that the information at folios 63-72 and 77-90 of the Departmental file in their case, file [number], should not be disclosed, because disclosure of that information would be contrary to the public interest because the documents at those folios are internal working documents.

30. The Tribunal put to the applicants that it does not accept that this certificate is a valid certificate.  The Tribunal explained this is because the Tribunal considers that the delegate simply stating that documents are ‘internal working documents’ does not explain why disclosing the documents to them would not be in the public interest, and the Tribunal does not consider that disclosing the documents to them would not be in the public interest.  The applicants indicated they did not have any questions regarding whether the certificate was valid or not but wished to know about the documents in question.

31. Noting that the FCCA found at least some of the documents were relevant, or potentially relevant, to the issues arising in the review, the Tribunal advised the applicants that it would share the contents of the relevant documents with them.  The Tribunal explained that it would do this formally, in accordance with the requirements of s.424AA of the Act.  Accordingly, the Tribunal put to the applicants that it has some information that it wishes to put to them that, subject to their responses, the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.  The Tribunal explained that it would tell them what the information is, why it is relevant to the review and then invite them to comment on or respond to the information.  The Tribunal also advised the applicants that they may seek additional time to comment on or respond to the information if they wish, and if necessary the Tribunal could adjourn the review, if the Tribunal considers that they reasonably needed additional time to comment on or respond to the information.

32. The Tribunal explained to the applicants that the information covered by the s438(1)(a) certificate at folios 63-72 and 77-90 of Departmental file [number] was as follows:

    ·Folio 63: a copy of a Department ‘Movement details’ record for [Mr C] indicating this person last entered Australia [in] Sept 2009.

    ·Folio 64: a copy of a letter from the Department acknowledging receipt of passports in the names of [Ms D] and [Ms A].

    ·Folios 65-67: a Departmental document referring four passports to the Department’s Document Integrity Section, those passports being in the names of:

    ­   [Mr A]

    ­   [Mr C]

    ­   [Ms D]

    ­   [Ms A]

    ­Folios 68-69: a copy of an internal Department email indicating that preliminary investigations indicate that the passports in the identity of [Mr C] and [Ms D] have been photo substituted and that someone else had applied for the original subclass 572 student visas; and requesting that Departmental movements records be amended for [Mr A] and [Ms A] to reflect that they entered Australia [in] Sept 2009 and [in] Sept 2010 in the identities of [Mr C] and [Ms D] respectively. 

    ­Folios 70-72: copies of emails indicating that the above requested action had been completed.

    ­Folios 77-90:  a copy of a Document Examination Case Report dated 31 March 2014 from the Department’s Document Integrity Unit advising that:

    ­   Nepalese Passport [number] in the name of [Mr A] was found to be genuine and unaltered.

    ­   Nepalese Passport [number] in the name of [Mr C] was found to be fraudulently altered by photo substitution.

    ­   Nepalese Passport [number] in the name of [Ms A] was found to be fraudulently altered by bio-data page substitution.

    ­   Nepalese Passport [number] in the name of [Ms D] was found to be fraudulently altered by photo substitution.

1. The Tribunal said to the applicants that it considered this information to be relevant to the review because it indicates that they obtained fraudulently altered passports to travel to and enter Australia, and this indicates that they were prepared to enter into fraud to come to Australia which may reflect on their overall credibility and cause the Tribunal to doubt the truthfulness of other evidence they have provided, and to affirm the decision under review.  The applicants indicated that they understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review.  They indicated they did not need additional time to comment on or respond to the information but wished to comment on the information immediately.  [Mr A] said it has been ten years now since he came to Australia and commented ‘if that is not true’ then he would have returned to Nepal.  He added that they also left their [number] month old daughter behind and she is now [age] years old but they have not been able to meet with her.  He commented that they have to provide an education to their children and would like to give them a good education but if they return back to Nepal there might be a problem and they might get killed  He added they would like to live in Australia.  The Tribunal asked him if he agreed that they came to Australia through using fraudulently altered passports.  He replied ‘yes’ and said that was because of the agent.  The Tribunal asked [Ms A] if she had any comments.  She said ‘no’ and indicated that she agreed with her husband’s comments.

   Evidence given at the hearing by [Mr A]

2. The Tribunal asked [Mr A] about the statement by his representative that they had no choice but to obtain fraudulent documents and to leave their daugher behind and asked him why that was the case.  He said it was because they had a love marriage which their families did not agree to, so their lives were in danger and they wanted to flee to Australia.  He said all the ‘village people’ were against them.  Noting the representative stated they did not have enough time to sit the English test and prepare the documents for a Student visa, the Tribunal asked [Mr A] why they did not try to get visas and come legally.  He said he is not ‘so literate’ and does not understand all the criteria and a friend suggested they come this way and an agent arranged everything.  The Tribunal asked [Mr A] why the agent didn’t also provide a false passport for his daughter.  He replied that they wanted to bring her but couldn’t, so they left her with his friend, [Mr E].  When pressed he said the agent couldn’t arrange a passport for his daughter.  The Tribunal asked [Mr A] how much it cost them to get the documents.  He said it was AUD8-9,000 each.  Noting advice from the Department of Foreign Affairs and Trade (DFAT) that Nepal is among the poorest and least developed countries in the world,[10] the Tribunal asked [Mr A] how he could afford to pay AUD16-18,000.  He said he had worked in [Country 1] previously, so had some savings, and four of his friends also helped him.  When the Tribunal asked the names of his four friends he indicated one was [Mr E] but said he forgot the names of the others.  The Tribunal asked [Mr A] where these friends got that sort of money from.  He replied he and his wife were not safe and said they would return the money.  The Tribunal again asked [Mr A] where his friends got that amount of money from.  He said he was not sure.  The Tribunal asked [Mr A] whether the agent might have agreed to arrange the false passports on the basis that they work in Australia and pay him back.  [Mr A] asked what the Tribunal meant.  The Tribunal explained that AUD16-18,000 seemed at lot of money for a Nepali to have and was asking him whether he was sure it was not the agent who gave him the documents on the basis that he work in Australia and repay the agent.  [Mr A] replied that [Mr E] and his friends helped them and the agent also helped them and took some money.  When asked how the agent helped them he said they still had to return money to the agent as well as to his friends.  When pressed he said he had to return AUD3-4,000 to the agent and AUD12-13,000 to his friends.

   [10] DFAT Country Information Report, Nepal, 1 March 2019, section 2.14.

3. The Tribunal asked [Mr A] why he stated in his Protection visa application that he had left his daughter with grandparents if that was not the case.  He said it might be a mistake.  The Tribunal queried [Mr A] that his application indicates that it was prepared with the assistance of a Registered Migration Agent, [Mr F].  He acknowledged this was the case.  The Tribunal asked him if [Mr F] is from Nepal and speaks Nepali.  He indicated this was the case.  The Tribunal asked [Mr A] how [Mr F] could have got that wrong in the Protection visa application.  [Mr A] said it was not in the application.  The Tribunal put to [Mr A] that for both he and his wife the applications state that their daughter is living with grandparents.  He replied that he might have made a mistake and not written it down correctly.  The Tribunal queried [Mr A] whether his daughter might be at risk remaining in Nepal.  He indicated she is not safe.  He said she is living with [Mr E] in the village of [Village 1] in Baglung district and they have not disclosed to anyone that she is there.

4. [Mr A] said he is a Hindu from [Caste 1].  When asked if that is part of the Chhetri caste is said [it] is a sub-caste of the Chhetri caste.  He indicated it is a high caste.  He said he grew up in [Village 2] in Nawal Parisi district in Nepal and the nearest major towns were Chitwan and Butwal but said he was living in [Village 1] before he came to Australia.  He indicated [Village 1] is 8-10 hours’ drive from [Village 2].

5. [Mr A] said he used to do [Occupation 1] when he was in Nepal.  He indicated that he had also worked in [Country 2] and in [Country 1], as a [Occupation 2] in [businesses].  He said he spent 2-3 years in [Country 2].  He indicated he returned to Nepal maybe two years before he left for Australia (in his Protection visa application he indicated that he returned to Nepal from [Country 1] [in] September 2008 (this is confirmed by the stamps in his passport), just over a year before he departed Nepal to come to Australia [in] September 2009).  He said he met his wife after he returned from [Country 1] but could not recall how long after he returned that was.  When asked he said he thought it was 4-5 months before they married [in] February 2009 but was not sure as he has forgotten everything.  He said they met on a bus when he was travelling to Chitwan.  He said his wife was living in [Village 3] which was 3-4 km from his village ([Village 2]).

6. The Tribunal asked [Mr A] what caste his wife is.  He said she is [Caste 2].  When asked if that is part of the Brahman caste group he said he was not sure.  He indicated it was a higher caste than his caste.  When asked which castes are higher than Chhetri he said Brahman.

7. When asked if he told his parents about his relationship [Mr A] said he did not inform them.  When asked if he asked for their permission to marry his wife he said he did not.  When asked why not he said he talked to them once and they were not interested at that time and he felt like he did not have their support.  The Tribunal asked him whether he told them he had met a girl, was in love and wanted to marry.  He said he did.  The Tribunal asked him why his parents were not interested.  He commented they said the castes are not the same therefore it is not good for them to marry.  The Tribunal asked why he decided to elope and marry without his parents’ permission given he might have known the likely consequences if they did not approve.  He said it was because they loved each other.  He commented that his parents did not agree when he expressed his feelings in front of them so he eloped and got married.  The Tribunal asked where he went.  He said he went to a friend’s house.  The Tribunal asked who the friend was.  He replied that he has forgotten his friend’s name.  The Tribunal asked which village.  [Mr A] said they went to Chitwan (which he had indicated was [number] hours drive from his village) for 3-4 days and then went to [Village 1].

8. The Tribunal asked [Mr A] where he got married.  He replied in the temple.  The Tribunal asked in which town.  He said in [Village 1].  Noting that in his Protection visa application it states [Mr A] was married in ‘Nawal Parisi, Chitwan’, The Tribunal commented that in his Protection visa application he said he married in Nawal Parisi, not [Village 1].  [Mr A] replied that it has been a long time and he has forgotten.  The Tribunal asked him if it was Chitwan.  He said it was not Chitwan but he can’t remember if it was in [Village 1] or Nawal Parisi. 

9. The Tribunal asked [Mr A] what happened after they married.  He said his family were against it, were ‘so aggressive’ and started to beat them so they ran away.  He added that they threatened to kill them wherever they found them.

10. The Tribunal asked [Mr A] where they stayed the night they were married.  He said they stayed in a cattle house.  The Tribunal asked in what town. He said he has forgotten.  The Tribunal asked if it was his home village or another village.  He said he can’t remember as he has a lot of tension and stress.  The Tribunal asked him if he ever returned to his home after he was married.  He replied ‘no’, adding that they went to meet his parents but his parents would not allow them to enter their home.  He said they beat them so they ran away.  He commented that the moment they saw him and his wife in front of the house they started beating them and then all the villagers came and beat them.  He said they ran away to a friend’s house one to one and half hours away but he can’t remember where.  When asked how long after they were married this occurred he said he can’t recall.  When asked if it was a few days or a week he said he has forgotten everything.

11. The Tribunal asked [Mr A] if he and his wife were hurt after being beaten by the whole village.  He said his wife was hurt and has a scar on her [Body Part 1].  He said he also has a scar on his [Body Part 2].  The Tribunal asked him if they went to hospital.  He said they didn’t but friends helped them with bandages.  The Tribunal queried [Mr A] that in his application he did not say that he had been harmed.  He replied that it was not in his mind at that time.

12. The Tribunal asked [Mr A] about the statement in his application that his wife was kicked out of the house and made to live in a shed for three weeks.  He said yes that’s true.  When asked he said he could not remember when it occurred.  When asked whether it was at her home and by her parents he indicated it was both of their parents.  He commented he is under a lot of tension because the people who are caring for his daughter are telling him to take her.

13. The Tribunal asked [Mr A] whether he and his wife were ever attacked on other occasions.  He replied ‘yes’.  When asked how many occasions he said he has forgotten.  When asked where they were attacked he said he can’t remember.  When asked if they were ever attacked in [Village 1] he said he has forgotten.

14. The Tribunal queried [Mr A] that he had indicated that [Village 1] is 8-10 hours’ drive from his village and asked if they would be safe there.  He replied that his friend [Mr E] said they are searching for them so they were in fear and he advised them to leave.  The Tribunal asked [Mr A] whether people ever came to [Mr E]’s home in [Village 1] and attacked him or his wife.  He replied that they threatened them that wherever they saw them they would kill them and commented that his friend told him he saw family looking for them in [Village 1].  The Tribunal queried [Mr A] that he came to Australia a year before his wife did.  He replied that she was in hiding.  The Tribunal queried [Mr A] that surely the families would have found her in [Village 1] if she had stayed there another year after he left and had a child.  He replied they were not safe there so they fled from [Village 1].  When queried that his wife stayed there another year [Mr A] replied that his friend helped her stay there safely.  The Tribunal asked [Mr A] if they were not safe in [Village 1] why didn’t they go to a major city in Nepal such as Kathmandu.  He replied that their families had threatened to kill them anywhere.  The Tribunal asked [Mr A] who was caring for his child now and whether she at risk of harm.  He said [Mr E] is caring for her.

    Evidence given at the hearing by [Ms A]

15. [Ms A] said she is a Hindu of [Caste 2].  She said that is part of the Brahman caste group.  She said her husband is a member of the Chhetri caste and her caste is higher than his.  She indicated that she was born in [Village 4] in another district but moved to [Village 5] in Nawal Parisi district when she was 18 or 19 years old.  She said [Village 5] is about a half hour drive from her husband’s village ([Village 2]). 

16. [Ms A] indicated that her father passed away when she was young and her mother passed away two-three years ago.  She said she has three [siblings] who all work in [Country 2] but come and go between [Country 2] and Nepal.

17. [Ms A] indicated neither she nor her husband had ever worked in Australia as they have not had working visas.  When asked how they supported themselves she said previously they had support from the Red Cross and now they are being supported by friends. The Tribunal put to [Ms A] that they were unlawful non-citizens when she applied for protection on 31 December 2013 and queried her that they would not have been eligible for Red Cross support while they were unlawful non-citizens.  She replied that friends also helped them at that time and they were not aware of protection but friends helped them to go to the Red Cross for help.  She said they were told that if they applied for protection they could work legally and earn money and added that their agent [Mr F] also helped them.  The Tribunal put to [Ms A] that her husband had applied for protection previously in June 2010 and asked why, in that case, they would not have known about the protection process until December 2013, three and a half years later.  She replied that she was not sure about that.  She indicated that when they were reunited her husband could not remember if he had applied.  

18. The Tribunal asked [Ms A] if she sought her family’s permission to marry [Mr A].  She said she asked her mother but her mother did not agree because she was from a higher caste than him.  The Tribunal asked her why she went ahead and married her husband against her mother’s wishes.  She said for ‘love’.  She indicated that she told her mother she was proposing to go ahead and marry and her mother did not agree and they were all angry with her.  She indicated that she remained living at home and was threatened by her mother and her [siblings] (she said her second elder [sibling] was at home at the time).  The Tribunal asked why they did not prevent her marrying if they did not approve.  [Ms A] replied that she and her husband ran away. 

19. The Tribunal asked [Ms A] where she and [Mr A] married.  She indicated it was in [Village 2] – her husband’s village.  The Tribunal asked her how that was running away.  She said it was not in the same village.  When queried that she had contradicted what she just said and asked how far the village where they married was from her husband’s village, [Ms A] said she is not sure because they did not stay there long.  When asked where they stayed on the night of the wedding she said they went to her husband’s home.  She said they were not allowed to stay and his family were aggressive and did not accept the marriage as they were planning for him to marry another. 

20. The Tribunal asked [Ms A] what else happened.  She said they were so aggressive and were very rude and the villagers also came and started beating them.  The Tribunal asked who beat them.  She said all the villagers.  The Tribunal asked her if they were injured.  She replied ‘yes’, commenting that she has a scar on her [Body Part 1] and on her [Body Part 2].  The Tribunal asked if her husband was injured.  She said he was beaten but not injured.  The Tribunal put to [Ms A] that her husband had told the Tribunal he had a scar on his [Body Part 2].  She replied ‘yes but commented that it is not big like hers.  The Tribunal asked if they went to hospital.  [Ms A] said ‘no’.  When asked if they received treatment for their injuries [Ms A] said friends helped them to get medicine.

21. The Tribunal asked [Ms A] how they were able to escape if the whole village was beating them.  She commented that ‘somehow’ they ran from there.  The Tribunal asked where they ran to.  She replied she was not aware of the place as her husband took her there.  She said it was a ‘cattle house’.  The Tribunal asked how they got to this place.  [Ms A] said they went by bus.  She said she did not know how long the bus trip took as she was injured.  The Tribunal asked how they were able to catch a bus if the whole village was beating them.  She said the bus stopped near there.

22. The Tribunal asked [Ms A] if they went to [Village 1].  She said ‘no’, adding that they went there a week later. The Tribunal asked if it was Chitwan.  She replied ‘yes’ and said they went there because her husband had a friend there.

23. The Tribunal asked [Ms A] why her statement of claims refers to her fearing harm from her father when he died when she was a child.  She indicated that it was not true that she fears harm from her father and that she is not sure how that happened to be in the statement.  The Tribunal also queried her about the statement in her application that she was kicked out of the house and asked to live in the shed for three weeks.  She indicated that they did not write that and she does not know how that came to be in the statement.

24. The Tribunal asked [Ms A] if there were other incidents while they were in Nepal.  She indicated there were, a couple of times.  She said her [siblings] were also against her marriage and threatened that if they saw her and her husband they would kill them.  The Tribunal asked her to tell it about the other incidents.  [Ms A] said her [sibling] beat us a couple of times.  The Tribunal asked where this occurred.  She said it was when they were living in [Village 1].  She said they went shopping and her [sibling] saw them and beat them on the way.  The Tribunal asked [Ms A] why this is not mentioned in the protection visa application.  She replied that she told the agent that but does not know what he wrote.  The Tribunal asked her if her agent was a Nepali and spoke Nepali.  She replied ‘yes’.  The Tribunal asked her how the agent could have got it wrong.  She could not explain.

25. The Tribunal put to [Ms A] that her husband indicated that [Village 1] is 8-10 hours from [Village 2] and asked how her [siblings] knew they were there and why they would have travelled there a couple of times to beat her.  She said it is their main market and her [siblings] have a friend who lives there and had told their friend to tell them if he saw her.  The Tribunal commented that it finds it difficult to believe that she would have stayed in [Village 1] by herself when pregnant with her daughter and then leave her daughter there with a friend if her [siblings] knew she was living there and had beaten her.  She replied that there was nowhere else she could go.  She added that she used to live in the village and they found her in the market and did not know where she was staying.

26. The Tribunal asked [Ms A] if she ever made a police report.  She said she did complain when they beat her in the market but the police did not help.  When asked why the police did not help she said she was not sure.

27. The Tribunal also asked [Ms A] why they did not relocate to a big city like Kathmandu.  She said they did not have anything to go to there and her [siblings] had told their friends that if they find her and her husband they will kill them.  The Tribunal put to [Ms A] if that was the case why her [siblings] had not killed her when they found her in [Village 1].  She replied that it was in the market and maybe if they had got the chance they would have killed her.  She said all the people in the market saved her and so her [sibling] did not get a chance to kill her.  The Tribunal queried why her [siblings] would not have just forced her to go home with them.  She said she was 3-4 months pregnant and in her culture they do not return the girl to the family when she is pregnant.  The Tribunal asked why they beat her if that was the case.  She replied they were so angry and said to her that they had helped her when she was younger.

1. The Tribunal asked [Ms A] if she has any contact with her family now.  She said no.  The Tribunal asked if she had ever had any contact with them.  She said not really.  She added that she heard from friends that her mother wanted to talk with her.  The Tribunal asked why she did not call her mother.  She said she called twice but now her mother has passed away.

   Delay in seeking protection

2. The Tribunal asked [Mr A] why he and his wife did not apply for protection until 31 December 2013, after a long period as unlawful non-citizens.  He said they were not aware of the rules.  He indicated that they were living in [City 2] and are now living in [City 1].  He said he went there to do farm work.  The Tribunal asked [Mr A] if the agent who arranged their passports told him to go there for farm work.  He replied ‘no’ and when asked, said they went there because a friend told him he could get work there.  When queried who this friend was he said he could not remember his name but he was a Nepali he met in Sydney.

   Previous protection application

3. The Tribunal asked [Mr A] if he had applied for protection before.  He indicated that he had but said he was not aware of what was in the application or the outcome.  He said an agent applied for him.  The Tribunal asked [Mr A] if he asked the agent what was in his application.  He said the agent got his signatures in a train station.  He could not remember which train station but indicated it was in Melbourne.  When asked why he met an agent in a train station [Mr A] indicated that it was because he was from Nepal and had a problem.  He said a friend recommended the agent.  [Mr A] commented that the agent was not a Nepali and spoke in English and his friend helped him.  When asked if he told the agent what his problem was he replied ‘yes’ and commented that he explained about his love marriage and leaving his daughter behind.  The Tribunal asked [Mr A] if those things were included in the application.  He said he was not sure.

4. The Tribunal put to [Mr A], in accordance with the requirements of s.424AA of the Act, that it had information that would be the reason or part of the reason for affirming the decision under review.  The Tribunal put to [Mr A] that in his first protection visa application he claimed that his father was killed in Nepal; the politics were bad during the time his father was in the Nepali army as they were between the government and the Maoist; and the people who killed his father were looking for him and will want to kill him if he returns to Nepal.  [Mr A] indicated that he understood why the information was relevant to the review.  He indicated that he did not require more time to comment on or respond to the information but wished to respond immediately.  [Mr A] commented that he was not aware of what the agent wrote and he just signed the form.  He added that it was due to his friend that he met with this agent and did that.  He said he was not aware of whatever it was the agent mentioned and what he is stating now is the true story.

5. In light of the decision of the Federal Court in AMA15 v MIBP [2015] FCA 1424 discussed above, the Tribunal advised [Mr A] that it would be considering his claims in relation to the complementary protection criterion in s.36(2)(aa) and the member of the same family unit criteria at subsections 36(2)(b) and (c) only.

   Assessment - Claim to fear harm due to inter-caste love marriage against the wishes of their families

6. The Tribunal accepts that [Mr A] is a Hindu of the Chhetri caste and that [Ms A] is a Hindu of the Brahman caste.  The Tribunal accepts that [Ms A] is of a higher caste than [Mr A] and therefore that theirs is an inter-caste marriage.  As discussed with the applicants at the hearing, the Tribunal notes that country information indicates that there are no legal barriers to inter-caste marriage and that the government has been providing monetary incentives of 100,000 rupees (about AUD1200) to each inter-caste married couple since 2009.[11]  The Tribunal commented that there is not a large caste difference between them, such as one being high caste and the other being a Dalit (untouchable), as they are both higher castes,[12] but acknowledged that while discrimination on the basis of caste is outlawed, DFAT advice is that it continues to be widespread in Nepali society.  The Tribunal commented that the DFAT advice indicates that attitudes to inter-caste marriages are changing in Nepal, especially in urban areas and among younger people with less traditional attitudes, and that the risk of family disapproval and associated violence depends on individual circumstances.  [Mr A] commented that the rules in Nepal are not stable and anything can happen at any time.  He added that he was not sure that one lakh (100,000) rupees was being made available to inter-caste marriages as he had not heard of that before.  [Ms A] said it is right that in urban areas inter-caste marriages may be encouraged but said in rural areas people follow tradition.  She added that in some villages where people are more educated, people are starting to accept inter-caste marriages, but that is not the case in their village when they were married.

   [11] DFAT Country Information Report, Nepal, 1 March 2019, sections 3.49-3.55.

   [12] Brahman and Chhetri of Nepal, Encyclopedia.com, 1996, >

   The Tribunal notes the advice from DFAT indicating that, despite the law criminalising acts of discrimination on the basis of caste and government efforts to encourage inter-caste marriages, disapproval of such unions, which may include acts of violence, remains a possible outcome.  Given the relevant country information, the Tribunal accepts it is possible that [Mr A]’s parents and [Ms A]’s mother and [siblings] may not have approved of the union, both because it was an inter-caste marriage and because it may have occurred without the permission of [Mr A]’s parents and [Ms A]’s mother and [siblings].  The Tribunal also accepts, therefore, that the couple may not have been permitted to stay at [Mr A]’s family home.  Having carefully considered all the available evidence, however, the Tribunal does not accept that the applicants suffered discrimination amounting to persecution or suffered violence or significant harm, or face a real chance of suffering treatment amounting to persecution involving serious harm or a real risk of suffering significant harm should they return to Nepal.  The Tribunal has reached this conclusion for the following reasons, considered cumulatively.

7. Firstly, when [Mr A] first applied for protection on 26 February 2010, five months after arriving in Australia on a fraudulently altered passport in the name of [Mr C], no mention was made in the statement of claims in his Protection visa application that he had fled Nepal because he feared harm from his father, family, relatives, village people and the community because he had entered into an inter-caste love marriage against the wishes of his and his wife’s families.  Instead, claims were made that his father had been killed because his father was in the army and had come between the government and Maoists who were in political conflict at that time; and the people who killed [Mr A]’s father were looking to kill him.  The Tribunal does not find convincing [Mr A]’s explanation that he just signed an application form and did not know what was in it.  He indicated that he had a friend assisting him at the time and it is reasonable to expect that, if he actually had his own claims for protection, [Mr A] would have conveyed these to the agent through his friend, and the agent would have captured in the application at least some sense of [Mr A]’s claims around fearing harm due to entering into an inter-caste love marriage.  The Tribunal considers that the reason this did not occur is that [Mr A] did not have a genuine claim on this basis, so the agent concocted the claim about Maoists (noting that [Mr A] indicated at the hearing that his father had been in the army).

8. Second, [Mr A] would have become an unlawful non-citizen as a consequence of his first protection visa application being refused on 2 June 2010, and when [Ms A]  arrived in Australia [in] September 2010 (on a fraudulently altered passport in the name of [Ms D]) the couple did nothing to regularise their statuses in Australia until 31 December 2013 (when they lodged the Protection visa application which forms the basis for this review), over three years after [Ms A] arrived in Australia.  The Tribunal would expect that, having left their infant daughter behind with a friend, if they feared they (and their daughter in Nepal) could be harmed because of their relationship, they would have been highly motivated to apply for protection on that basis as soon as possible.  The Tribunal does not accept the reasons put forward for the long delay, that they were not aware of the rules or the process.  This seems implausible given [Mr A] had already made a Protection visa application, with the assistance of a friend, in February 2010.  The Tribunal considers it much more likely that the applicants came to Australia to work due to limited economic opportunities in Nepal (noting that [Mr A] indicated that he had spent years working in [Country 2] and [Country 1]), and working in Australia was their priority.  In this regard, the Tribunal does not accept the evidence by [Ms A] that neither of them ever worked in Australia and that they have survived with the support of friends and the Red Cross, noting that [Mr A] indicated at the hearing that he went to [City 2] and then to [City 1] to do farm work.

9. Third, the Tribunal finds there are significant inconsistencies between the applicants’ written claims and their evidence at the hearing.  They both stated in their applications that their daughter was living with grandparents.  They both stated that [Ms A] was kicked out of the house and made to live in a shed for three weeks.  [Ms A]’s application states that she fears harm from her father and her husband’s father.  In his Protection visa application [Mr A] did not indicate he had been physically harmed in Nepal, but stated that his wife was beaten.  At the hearing they both contradicted all these claims (except [Mr A], who when asked about his wife being forced to live in a shed, said that’s true, but then could not provide any details other than it was by both of their parents).   At the hearing [Ms A] indicated that her [siblings] had found them in [Village 1] and they/she had been beaten there by a [sibling] on two occasions, but she did not mention these claimed incidents at all in her written statement of claims.  The Tribunal found unconvincing the explanation given for these contradictory statements/omissions (that the agent must have made a mistake), noting that the agent for the current applications was a Registered Migration Agent of Nepalese background and a Nepali speaker.  The Tribunal would expect that a Nepali speaking Registered Migration Agent would have been able to capture their claims accurately, without making significant errors.

10. Fourth, there were a number of significant inconsistencies between the evidence of [Mr A] and [Ms A] at the hearing.  [Mr A] initially said they were married in [Village 1] but then said he could not remember where they were married but indicated it was not Chitwan.  [Ms A] initially indicated they married in her husband’s home village of [Village 2] but then altered her account to say it was another village but did not know where because they did not stay there long.  She said that on the night of the wedding they went to her husband’s family home but he said they stayed in a cattle house but could not remember where that was.  When asked how long after they were married they went to his parent’s home [Mr A] said he could not recall.  When asked if he was injured after they were attacked by the whole village [Mr A] said he has a scar on his head.  When [Ms A] was asked she said her husband was beaten but not injured.  When [Mr A] was asked if they were ever attacked on other occasions he said they were but could not recall how many occasions or where, including if it was in [Village 1].  When [Ms A] was asked this question she said there were a couple of other incidents, which occurred when they were living in [Village 1], where they were beaten by her [siblings].

11. Fifth, much of the applicants’ evidence at the hearing, particularly [Mr A]’s evidence,  was vague, lacked detail and was unconvincing.  As outlined above, [Mr A] repeatedly said he could not recall time frames, the names of friends, places he had been or broad details of claimed significant events, such as how often he was attacked, or where he spent the night of his marriage.  In his Protection visa application he stated he was married in Chitwan but at the hearing he indicated that he could not recall where he was married, and when queried if it was in Chitwan said it was not.  When asked if he told his parents about his relationship with [Ms A] he initially said he did not inform them.  When asked why he subsequently altered his account and said he did talk to them but they showed no interest.  He then commented that his parents said it is not good for them to marry because their castes are different.  While the Tribunal accepts that ten years have passed since the claimed events and that [Mr A] might be feeling some stress in relation to his circumstances in Australia and in the context of the Tribunal hearing, the Tribunal does not accept that he would not have been able to recall broad details of significant events and incidents if the events/incidents occurred as claimed and he was being truthful in his evidence.   Similarly, when the Tribunal asked [Ms A] how they escaped from the village when all the people from the village were attacking them she said ‘somehow’ they escaped, without any elaboration.  When the Tribunal indicated that she had contradicted herself in her evidence regarding where they were married, she said she is not sure because they did not stay there long.  When queried that her evidence that her husband was beaten by the villagers but was not injured was contradicted by his evidence she said ‘yes’ but commented that his scar was not big like hers.

12. Sixth, the Tribunal found the accounts by [Mr A] and [Ms A] of being beaten by the whole village, sustaining injuries but being able to get away and catch a bus to another town to be highly improbable.  Neither [Mr A] nor [Ms A] could recall where they went (other than they stayed in a ‘cattle house’) or how long the claimed bus trip took.

13. Seventh, [Ms A] claims that her [siblings] found them/her while she was living in [Village 1] and she was twice attacked there but managed to escape.  The Tribunal found highly improbable her evidence that while she was beaten she was not killed (as she claimed was threatened) or abducted by her [siblings] because she was saved by all the people in the market and because she was pregnant at the time and a pregnant woman is not returned to her home.  The Tribunal did not find convincing and her evidence that her [siblings], having travelled 8-10 hours to [Village 1] and found her twice and beaten her, did not kill her on either of those two occasions, and did not find her again and kill her, if that was their intention, because she was in hiding in [Village 1] and they had found her while she was in [Village 1] market.  In reaching this conclusion the Tribunal notes that [Ms A] herself claimed that she and her husband could not relocate anywhere in Nepal because her [siblings] had the capacity to find them wherever they went in Nepal.

14. Eighth, the fact that [Mr A] and [Ms A] left their daughter behind and she has lived with others in Nepal for nearly nine years since [Ms A] departed Nepal in September 2010 strongly suggests that the family are not at risk of harm should they return to Nepal.  The Tribunal considers that if family members from either side of the family wished to harm or kill the applicants they could have used their daughter to seek to force the applicants to come forward.  Given [Ms A]’s evidence that her [siblings] found out she was living in [Village 1], where the applicants claim their daughter has remained, it would seem likely that her [siblings], if so motivated, would have been able to find out where she and her daughter were living in [Village 1], in line with the applicants’ claims that they could not safely relocate anywhere in Nepal because their families could find them wherever they went.  While the Tribunal accepts that the applicants’ daughter may be living with [Mr A]’s friend [Mr E] as claimed, the Tribunal considers it is also possible and perhaps likely that she is or was living with grandparents as stated in the Protection visa applications.

    Displacement of Pahadiyas in Madhesh

15. At the hearing the Tribunal asked [Mr A] about the comment in his representative’s submission of 16 August 2019 that 70% of Pahadiyas (hill people) have been displaced in Madhesh after 2008, in the wake of new ethnic sentiment.  He commented that he did not understand and was not sure what his representative meant by that comment.  Accordingly, and having regard to its findings above, the Tribunal finds there is nothing to support the representative’s assertion that ‘not only as a deviant from the norms and values of the community’ but ‘as a member identified as a Pahadiya Community in Madhesh’ [Mr A] has been or would in the future be at real risk of harm in Nepal, because 70 per cent of Pahadiyas have been displaced in Madhesh after 2008, in the wake of new ethnic sentiment.

16. Given its findings above, the Tribunal does not accept that [Mr A] or [Ms A] suffered serious or significant harm while they were in Nepal, from their parents, siblings, relatives, other village people or the community due to their inter-caste marriage or because they married without the permission of their families or because they are Pahadiyas. 

17. As noted at paragraphs 4-5 above, the Tribunal has considered [Mr A]’s claims in relation to the complementary protection criterion in s.36(2)(aa) and the member of the same family unit criteria at subsections 36(2)(b) and (c) only.  The Tribunal’s conclusions in relation to these matters appear below.  In relation to [Ms A] and Miss [Child B], the Tribunal concludes that [Ms A] and [Child B] do not face a real chance of suffering persecution involving serious harm should they return to Nepal due to them being members of particular social groups comprising persons who have entered into inter-caste or love marriages (without the consent of their families), or are the children of such unions, or for any other Refugees Convention reason, including because they might be identified as ethnic Pahadiya.

    Complementary protection

18. Having concluded that [Ms A] and [Child B] do not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) of the Act in relation to all three applicants - [Mr A], [Ms A] and [Child B]. 

19. In considering whether there is a real risk that any of [Mr A], [Ms A] and [Child B] will suffer significant harm, as a necessary and foreseeable consequence of them being removed from Australia to Nepal, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[13]

    [13] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

20. In light of the Tribunal’s credibility findings, and given the Tribunal does not accept that [Ms A], who’s claims are essentially the same as [Mr A]’s claims, faces a real chance of suffering persecution involving serious harm in the reasonably foreseeable future if she returns to Nepal, the Tribunal, having regard to the findings of fact set out above, also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Nepal, there is a real risk that any of [Mr A], [Ms A] and/or [Miss A] would suffer significant harm in the form of being arbitrarily deprived of their life; having the death penalty carried out on them; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment by their parents, siblings, relatives, other village people and/or members of the broader Nepali community, the Nepali authorities (including the police), or anyone else, should they be returned to Nepal.

    Conclusions

1. For the reasons given above, the Tribunal is not satisfied that [Ms A] and [Child B] are persons in respect of whom Australia has protection obligations under the Refugees Convention.  Accordingly, neither [Ms A] nor [Child B] satisfies the criterion set out in s.36(2)(a).  As noted at paragraphs 4-5 above, the Tribunal has not considered [Mr A]’s claims in relation to the refugee criterion set out in s.36(2)(a).

2. Having found that neither [Ms A] nor [Child B] meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) for all three applicants.  The Tribunal is not satisfied that any of [Mr A], [Ms A] and/or [Child B] are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

3. There is no suggestion that any of the applicants satisfy 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, none of the applicants satisfy the criterion in s.36(2).

   DECISION

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

   Paul Windsor
   Member
     Relevant law

   
   
   ATTACHMENT A

5. 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.

   Refugee criterion

6. 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).

7. 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.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘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.

18. 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.

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.

    Member of the same family unit

20. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant.  Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.  Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.  The expression is defined in r.1.12 of the Regulations to include spouse or de facto partner and dependent children.