1818708 (Refugee)

[2018] AATA 4072

1818708 (Refugee) [2018] AATA 4072 (5 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1818708

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Ms Christine Long

DATE:5 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 September 2018 at 1:46pm

CATCHWORDS
REFUGEE – protection visa – Nepal – social group – homosexual – attacked and injured by partner’s brother – partner committed suicide – police unable to protect the applicant –  fears physical and mental harm –face societal discrimination – credibility – delay in applying for protection – no well-founded fear of a real chance of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth) Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 June 2018 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 11 April 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.

   CRITERIA FOR A PROTECTION VISA

3. 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, he or she 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.

4. 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 because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

9. The Tribunal has before it the applicant’s departmental file which includes his application for protection visa and a copy of the delegate’s decision record dated 19 June 2018.

10. The applicant was interviewed by the delegate about his claims on 2 May 2018 and the discussion at that interview is referred to in the delegate’s decision record. The Tribunal also has before it the applicant’s application for review; a copy of the delegate’s decision record was provided to the Tribunal with the application for review.

11. On the applicant’s departmental file there are also two letters relating to the applicant’s treatment in Australia under [detoxification] programme/s; one letter is dated 9 May 2018 from [a doctor] stating that the applicant has been under the care of the writer from April 2017 and one letter is from the Drug and Alcohol team at [the Detention Centre] noting that the applicant has been in detention from March 2018 and is on [a] treatment programme under the care of the team with [another doctor].

    Claims made in Application for Protection Visa

12. In his application the applicant states that he was born in [an area of] Kathmandu in Nepal in [year]. He indicates that his ethnic group and his religion is Hindu. He indicates that his occupation is [an occupation 1] ([Company 1]). He indicates that he has never married or been in a de facto relationship. He indicates that his parents live in Kathmandu. He indicates that he is in contact with his relatives outside Australia via Facebook, viber calls and messenger calls.  He gives details of personal contact/s in Australia.

13. The applicant indicates that he left his country legally [in] February 2009 through an international airport which he names. He used a passport which he indicates was issued in Kathmandu, Nepal in [date] 2004; it expired in [date] 2014. He entered Australia as a student on 12 February 2009.

14. The applicant gives the addresses that he has lived at in Australia since his arrival in February 2009. He also indicates that he is/was employed in Australia for 15-20 hours per week for a [company] which he names. He also lists other employment in Australia including as [occupation 1] for [Company 1]. The applicant indicates that in Nepal he was educated to higher secondary level and that in Australia he has studied for a [diploma].

15. The applicant states that he left his country to get an opportunity to live a good and normal life; being gay in Nepal is hard and occasions humiliation, disgrace, threats of being killed by people/society. The applicant claims that you are treated like a criminal for being gay and treated as cursed by God. He claims that if he returns to his country he will be tortured by people both physically and mentally and will have to live his life with threats and hatred.

16. The applicant claims that in his country he was harmed physically and mentally; being gay is a crime in his country. He was treated as not normal. He was physically attacked for loving someone close to him. He was attacked with a heavy object on the back of his head while riding his bike; he broke his leg and damaged his [hand]. He complained to police but nothing happened/they did nothing as all people are corrupt; they had to take back the complaint as “we were getting threats to harm us again”. The applicant states that he cannot relocate to avoid harm because his country is small geographically “as well as mankind”; that is why he chose Australia to come to.

17. The applicant states that people are waiting to harm him in his country because they think they lost a loved one because of him; they want his life for the one they lost. They will attack him until they kill him.

18. The applicant states that he cannot get protection from the harm he fears in his country because there are no proper rules and regulations and all the authorities are corrupt; they do not care “until something happened to me or anyone”. 

19. The applicant submitted a statement dated 28 May 2018 in support of his claims describing his first sexual encounter as a gay man in 2005; the subsequent development of a sexual relationship with a gay man, [Mr A], in his country;  the assault on him and threats against him by [Mr A]’s elder brother when he discovered that the applicant and the man were having a relationship after finding letters written by the [Mr A] to the applicant; the applicant’s worry when he found out the brother knew about the relationship because he did not want anyone to know he was gay as it is a disgrace in his country;  the applicant’s disclosure to his mother that he is gay and her support of him; an assault on the applicant while he was riding his bike to his job [in] January 2006  when he was hit on the head/helmet from the back and injured by a bus when he fell on the road; his stay at hospital following that incident because of his broken leg and hand injury and his bed rest at home for six months because of the injuries; his recovery period of six months; the disclosure to the applicant’s mother from the [Mr A]’s family that they were responsible for the attack on the applicant because [Mr A] had overdosed and the family blamed the applicant; the filing of a complaint to the police about the incident by the applicant/his family and then the withdrawal of that complaint because of threats; the applicant’s application to travel to Australia to get the opportunity to live a good life where no one bothers people for being gay; his studies in Australia and the difficulties he encountered trying to get permanent residency in Australia; his news, in June 2013, via Facebook, that [Mr A] with whom he had the relationship in Nepal had committed suicide; threats/assaults his mother and father received  after the suicide from the man’s elder brother including a threat to hire someone to kill the applicant in Australia as they blamed the applicant for [Mr A]’s suicide; the applicant’s attempt to escape from his depression and feelings of guilt by taking [a drug]; the cancellation of his student visa because he could not attend his classes at his college; the fact that he lost everything  “beside my family support”;  his meeting in [Australian city 1] with [Mr B], a gay man, in April 2016 and his relationship with him and their plan to marry when [Mr B] obtained citizenship; [Mr B]’s return to his country on holidays;  the applicant’s inability to have a normal life in his country where he would have to live with fear and humiliation; the applicant’s wish to get a chance to have a better life, live with freedom and joy and “get my parents over here”.

20. The applicant was interviewed by the delegate about his claims on 2 May 2018. The interview is referred to and discussed in the delegate’s decision record, a copy of which was given to the Tribunal by the applicant with his application for review.

21. On 31 May 2018 the applicant submitted a further statement to the delegate in support of his claims. He forwards with that statement documents described as hospital records for the time he claims he received hospital/medical treatment following his injuries [in] January 2006. The documents include some documents headed [Hospital 1], in the patient name of [Applicant’s name] and [Applicant’s Alias] and other hand written pages, with dates ranging from [January] 2006 to [January] 2008; the hand written pages appear to be medical notes, in English, without specific reference by name to the patient being treated.

22. The applicant states in the statement dated 31 May 2018 that his mother approached the local police department for these documents as they submitted them when making the complaint; his mother also sought the complaint letter but the police department told her they could not find the complaint letter. After his mother got the documents someone rang her saying they were from the police enquiring about the applicant, including his flight schedules/ his return flight. When his mother became suspicious and asked the person calling for his details, his name and department, the person swore at her and hung up “and she could hear someone laughing behind the call”. The applicant states that he told his mother not to worry and to get help from [Organisation 1] about the calls. The applicant states that [Mr B], his partner in Australia is no longer in his life; he describes an encounter that his “brother”, [Mr C], had in [Australian city 1] at [a public event] when he saw [Mr B] with his ([Mr B]’s) relatives/wife and children. [Mr B] indicated that he could not help the applicant in this matter and asked that the applicant not involve him. [Mr C] did not tell him (the applicant) about the incident until “today”.

23. In response to a letter dated 8 June 2018 to the applicant from the delegate, the applicant wrote to the delegate again on 12 June 2018 providing some clarification of details in his initial visa application, his relationship with the person called [Mr B] in [Australian city 1], and an explanation of the dates in the documents described as medical records which he provided in support of his application for protection visa. In relation to the dates on the medical records the applicant explains that the medical records cover two periods, one period being when he was treated in hospital from [January] 2006 and the other period  [when he was receiving other treatment].

    Application for Review

24. In his application for review the applicant makes no new claims. The applicant provided a copy of the delegate’s decision record with his application for review.

25. At the hearing the applicant provided copies of the documents described as medical records from Nepal that he provided to the department in support of his application for protection visa, a copy of his statement dated 31 May 2018 and copies of the two letters relating to his treatment in Australia under [detoxification] programme/s. He also provided   a copy of a document dated 10 June 2018 described as from the applicant’s mother to the “[Police Office 1]” stating that the person who attacked her son [in] January 2006 while he was riding his motorcycle and a gang of 3/4 persons “are calling via different phone numbers giving threat enquiring saying when will your son return from Australia and they will take lives of me, the applicant, [another individual] and my son ([now] living in [Australian city 1], Australia) once he returns from Australia…...”; a copy of a document dated [January] 2006 described as an application by the applicant to “[Police Office 1]” essentially reporting that the applicant was attacked and hit from the back while riding his motorcycle by a gang of 3/4 persons including a person whom he names who ran away; this resulted in the applicant having an accident leading to injuries which were treated/operated on at a hospital.

    Tribunal Hearing held 16 August 2018.

26. The applicant appeared before the Tribunal to give evidence and provide arguments in support of his application for review. The applicant did not request an interpreter and the hearing was conducted in English. The Tribunal was satisfied that the applicant was well able to communicate both in writing and orally in English. At the commencement of the hearing the Tribunal reminded the applicant that if he was having any difficulties at all understanding its questions he should mention that immediately. The applicant did not mention to the Tribunal at any time during the hearing that he was having any difficulties understanding the Tribunal’s questions.

27. At the applicant’s request the Tribunal also spoke with the applicant’s witness, [Mr C], who attended the hearing and produced his passport issued in Chitwan in January 2015. The applicant told the Tribunal that the witness could give evidence to the Tribunal about the applicant’s relationship with the person called [Mr B] in [Australian city 1]. The applicant explained that he refers to the witness as his brother but he is not in fact his brother. He explained that the witness is not related by blood but it was arranged that he should come to stay with the applicant when he came to Australia.

28. The Tribunal spoke with the applicant about his passport issued in Kathmandu in June 2004 the original of which he said was with a friend at [a suburb]; his name, which he wrote down for the Tribunal, and the fact that he is not known by any other name; his history of drug taking in Australia and his addiction to [a drug] from 2012/2013; his treatment for his drug problem in Australia and his current treatment; that he stopped attending his college/studies in 2011; that he knew/realised he was without a visa to stay in Australia in 2014 but because of his depression/drug problem he could do nothing about that; his preparation of his protection visa application and statements in support of that application after learning about the availability of protection visas when he was detained, from “mates inside [the Detention Centre]”; his intention to remain in Australia when he left Nepal in 2009 and his difficulties getting permanent residency when the “rules changed” in relation to his qualifications; the address of his parents in Kathmandu, where he has always lived and where he lived just prior to coming to Australia; his contact with his parents, especially his mother, in Kathmandu; his employment in Kathmandu prior to coming to Australia; the main reason that he decided to leave Nepal and come to Australia which was to save himself and to get a better life/study; his fear of harm from the family/elder brother of the person with whom he claims he had a gay relationship in Nepal, [Mr A]; how he managed to avoid harm from those he feared in Nepal from early 2006 until he left Nepal in February 2009; his relationship with [Mr A] in Nepal, and how it developed, which he said was from around September/October 2005; an assault upon him from [Mr A]’s elder brother about three to four months after he had been in the relationship with him (although at another time he states that the assault from the elder brother happened 7 months after he was seeing [Mr A]);  his report to police about the assault incident and its later withdrawal because of threats; an assault involving his father; his accident in January 2006 and the report to the police about that accident; the fact that there was no major incidents between the time of the first assault and this accident in January 2006; how he knows that [Mr A]’s elder brother is responsible for his accident in January 2006 and his resulting injuries; that he did not have a relationship with [Mr A] in Nepal after the accident in January 2006; that he had no other gay relationships in Nepal; threats to his mother in Nepal including recently; his gay relationships in Australia including with a man called [Mr B] whom he met in 2016;  that he could not write down for the Tribunal [Mr B]’s name because [Mr B] told him not to give his name; his subsequent information that [Mr B] had a wife and family and would not help him when he was placed in detention; his information received while he was in Australia, via Facebook, that [Mr A] had committed suicide and threats to the applicant from [Mr A]’s brother because he blamed him (the applicant) for [Mr A]’s death; the main reason that the applicant does not want to return to Nepal being that [Mr A]’s brother will kill him; threats to his mother including after she went to the police station to get documents for him including threats that [Mr A]’s brother will arrange to have the applicant killed in Australia; the documents that the applicant has provided in support of his claims and why the medical records are in a name that is not the same as the applicant’s name; country information about the prevalence of document fraud in Nepal and country information about the present situation for gay people in Nepal which is considered progressive; when the applicant first mentioned that he did not want to return to Nepal for the reasons that he claims and why he did not make those claims earlier.

1. The Tribunal spoke with the applicant’s witness about his arrival in Australia in April 2017; the fact that he shared a house with the applicant and the man called [Mr B] from about October/November 2017 until the applicant was placed in detention in March 2018; his belief that the applicant and the man called [Mr B] were in a relationship; his meeting with [Mr B] at the time of “[a public event]” in [Australian city 1] when he saw [Mr B] with his [family]; why he would not give the Tribunal further details about [Mr B], including his mobile phone number.

   Information received from the applicant following the hearing

2. The Tribunal wrote to the applicant following the hearing allowing him until 27 August 2018 to provide further submissions/information in support of his claims. On 17 August 2018 the applicant sent the Tribunal a copy of his [State 1] photo ID card and a copy of his now exoired passport noted as issued in Kathmandu in [2014]. He also sent the Tribunal a copy of two documents dated 5/11/2018 and 5/14/18 described as from [Organisation 1]. The letter dated 5/11/2018 states that the writer believes the applicant is a “self Identified Gay Man” who is in Australia applying for protection. The letter dated 5/14/2018 states that homosexuality was legalized in Nepal in December 2007 and that the writer has known the applicant since 2005 when he was in [Organisation 1]. The writer describes violence against “LGBT” people and states that the applicant was the victim of attempted murder and “got lots of threats and verbal abuse from his same sex partner’s family”. The police did not help him. The writer states that he tried helping the applicant talk to his partner’s family but they denied “the homosexuality fact” and hid it because of fear of social discrimination. The writer states that he came to know from the applicant’s mother that he got attacked and injured badly and the police did not help him because his harassment was because of homosexuality. The writer then states that same sex marriage is not legal in Nepal. They cannot adopt children. Homosexual relationships face violence and discrimination from family and society so that same sex couples don’t reveal themselves. The writer states that same sex couples face threats and some end up getting murdered or commit suicide like the applicant’s partner did. The writer states that the applicant’s family in Nepal are still getting threats because the family (of the man who committed suicide) blames the applicant.

3. The applicant also sent the Tribunal what appears to be a print out from his social media page with posts on dates between the [date] April 2013 and [date] April 2013 relating to condolences for [Mr A] whom  the applicant claims committed suicide in Nepal.

   FINDINGS AND REASONS

4. Essentially the applicant claims that he left his country and cannot return there because he is a gay man who was, and will be, harmed and threatened by the family, including the elder brother, of a man, [Mr A], with whom he had a gay relationship in Nepal. The applicant clamed before the Tribunal that he came to Australia to escape from the relationship with [Mr A] but [Mr A] wanted him to come back. The applicant also claims that while he was in Nepal the brother of [Mr A] discovered he and [Mr A] were in a gay relationship and assaulted the applicant, and also his father. Later, in January 2006, the elder brother was responsible for assaulting the applicant while he was riding his motorcycle causing him to have an accident and suffer serious injuries for which he was hospitalised. The applicant claims that since he has been in Australia the gay man, [Mr A], committed suicide in Nepal and the family blames him for his death; the brother has broken windows at his house and threatened his mother. He claims that both he and his parents have been threatened and harassed by the family members/elder brother of [Mr A] in Nepal and that his mother has received threats, including recently, over the phone after she had been to the police to obtain documents for the applicant. He claims that the brother of [Mr A] has told his mother that he will arrange someone to kill him in Australia.

5. Although the applicant told the Tribunal that his main concern about returning to Nepal is that he will be harmed by [Mr A]’s elder brother/family he also claims in his application that he cannot live a normal life in Nepal because he is a gay man; he will suffer humiliation, disgrace and threats of being killed from people/society. He will be treated like a criminal for being gay; he will be tortured physically and mentally because he identifies as a gay man.

   Country Information  

6. In addition to the country information referred to by the delegate, the Tribunal consulted the article by Human Rights Watch (published in World Politics Review), 11 August 2017, “How Did Nepal Become a Global LGBT Rights Beacon?”  It also consulted the Response to Information Request, NPL105570.E, 8 August 2016, Immigration and Refugee Board of Canada in relation to the prevalence and availability in Nepal of fraudulent documents, including police certificates and reports, medical reports or hospital records and other documents.

7. The independent country information consulted by the Tribunal indicates that the LGBT rights situation in Nepal is progressive, and Nepal’s “new constitution has granted the right to equality to sexual minorities and allows the state to pass laws to protect, empower and advance the rights of sexual minorities”. Further the information states that although same sex sexual activity can still technically be prosecuted that law is not currently implemented (DFAT Country Information Report-Nepal, 21 April 2016, at para.3.60). Further, in the most recent report of US Department of State, Country Reports on Human Rights Practices for 2017- Nepal, it is reported that “no laws criminalize same-sex sexual activity, and lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons actively advocated for their rights. The constitution contains provisions outlining protections for LGBTI persons, but LGBTI activists continued to press for further legislation to increase protections for gender and sexual minorities”.

8. The Tribunal accepts however that the independent country information also indicates that there is still some harassment, discrimination and abuse of LGBT persons in Nepal by authorities and society generally, including within families, and that general community attitudes towards same sex relationships are often negative, particularly within rural areas.

9. Clearly however the Tribunal must determine whether, for the purposes of the ‘refugee’ criterion, the applicant before it has a genuine fear founded upon a real chance of persecution for one or more of the reasons of his race, religion, nationality, membership of a particular social group or political opinion, if he returns to his country, or, for the purposes of s.36(2)(aa) (‘the complementary protection criterion’), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, in this case Nepal, there is a real risk that the applicant will suffer significant harm.

   Identity and Country of Reference

10. The Tribunal accepts that the applicant is who he claims to be. He provided the Tribunal with a copy of his passport issued in Nepal in June 2004. The Tribunal finds that the country of reference for this application is Nepal.

    Residence in Nepal

11. The applicant told the Tribunal that just before he travelled to Australia in February, 2009 he was living with his parents at an address in Kathmandu which he wrote down for the Tribunal. He said that he has always lived there at that address with his parents who remain living there. He explained that his parents/the family have a three storey apartment block; they live in one apartment and rent out the other two apartments.

12. The Tribunal finds that in Nepal the applicant has always lived with his parents in Kathmandu at the address which he gave to the Tribunal and that he was living there just before he travelled to Australia in February 2009.

    Applicant’s sexual identity and gay relationship/s in Australia

13. The Tribunal has doubts about the credibility of the evidence that the applicant has given about his claimed partner, [Mr B], in Australia.

14. In the Tribunal’s view, in his attempt to explain why his claimed partner, [Mr B], in Australia has not assisted him in his application for protection visa, the applicant has given confused and at times inconsistent evidence about the whereabouts of [Mr B]. As recorded in the delegate’s decision record, a copy of which the applicant provided to the Tribunal in connection with his application for review, the applicant told the delegate at his interview on 2 May 2018, variously, that [Mr B] went back [overseas] for a holiday in March 2018, that he has broken up with [Mr B], that [Mr B] does not want to help him, that [Mr B] might be too scared to visit the detention centre or he might have abandoned him, that he hopes the relationship with [Mr B] will continue as he wants to marry [Mr B], that he is worried [Mr B] has not been in touch. He also said [Mr B] should have returned to Australia at the time of the interview with the delegate. In his statement dated 28 May 20018 made in support of his application for protection visa, the applicant states that he and [Mr B] were planning to get married once [Mr B] got citizenship “probably next year” but suddenly he ended up in detention; he repeats that “[Mr B] also not here as he went back to his country on holidays”. He then states in his statement made 31 May 2018 that he was told “today” by his “brother” [Mr C] about his encounter with [Mr B] and his wife/family in the city at [a public event]. The applicant also states in his statement dated 12 June 2018 that “the last thing I can assure you that if you let me (have) some time frame so that I can find him ([Mr B]) out and let him come to you to give you statement for sure …”.  He told the Tribunal however that the day that he was placed in detention in [the Detention Centre], that is 13 March 2018, before he made his application for protection visa, [Mr B] rang him and told him he had a family and said that he would not help him (the applicant) and asked the applicant not to give his name or details (to immigration authorities). The applicant later said that this conversation/phone call from [Mr B] happened the day after he was placed in [the Detention Centre], on 14 March 2018. He told the Tribunal that he had not mentioned this phone call from [Mr B] before. He agreed with the Tribunal that what he was now claiming was that he had known since 14 March 2018 before he made his application for protection visa that [Mr B] had a family and would not assist him at all in detention. The applicant said that he had not told the delegate that [Mr B] had called him and said he would not help him and that he had a family, because [Mr B] had asked him not to give his details and he then said he could not tell the delegate because he had earlier told the case officer that [Mr B] would help him. When the Tribunal asked him why he told the case officer this if he knew [Mr B] would not help him he said that he decided to “go with the flow” and tried to hide it. When the Tribunal asked the applicant why he had said that [Mr B] was holidaying in his country as it states in the delegate’s decision record the applicant responded that he had to say something and that this was not true. He then said variously that he had [Mr B] had a fight, and that he did not believe [Mr B].

15. The above evidence of the applicant about [Mr B]’s whereabouts, including his admission that he untruthfully told the delegate that [Mr B] was holidaying in his country, and the fact that neither the applicant, nor his witness, were prepared to give the Tribunal [Mr B]’s details, including his contact details, saying that he had asked them not to reveal those details, causes the Tribunal to be concerned about the applicant’s credibility in relation to his claims about his relationship with [Mr B]. The Tribunal takes into account however that the applicant’s witness stated that he believed the applicant was in a relationship with a person called [Mr B]. The witness said that this was based on his observation of the applicant and this person [Mr B] during the time he shared a house with the applicant and [Mr B] from about October/November 2017 until the applicant was placed in detention in March 2018. He also gave evidence about the encounter with a person called [Mr B] with his family in [Australian city 1] around the time of [a public event]. Having regard to this evidence, and not without some doubt about the matter, the Tribunal finds that the applicant identifies as a gay man and that he had a gay relationship with a person called [Mr B] in Australia for some months before he was placed in immigration detention for being without a visa to stay in Australia in March 2018.

    [Mr A]

16. The Tribunal does not accept as true however that the applicant had a relationship with a gay man in Nepal called [Mr A], or that that person has committed suicide and his family blames the applicant, or that [Mr A]’s elder brother has threatened the applicant and his family/mother at any time, including recently and/or after the applicant came to Australia. The Tribunal does not accepts as true that [Mr A]’s brother has assaulted the applicant on any occasion in Nepal /caused property damage to the applicant’s house in Nepal/threatened or assaulted the applicant’s parents in Nepal. The Tribunal does not accept as true that the applicant was injured in Nepal because of the actions of [Mr A]’s brother, with others/another when the applicant was riding his motor bike. Further the Tribunal does not accept as true that the applicant fears harm from the elder brother of [Mr A]/[Mr A]’s family or that [Mr A]’s elder brother will threaten, harass or harm the applicant if he returns to Nepal. The Tribunal finds that the applicant has given untruthful evidence about these claims to enable him to get a protection visa to stay in Australia and bring his parents to Australia as he told the Tribunal was his plan.

17. In the Tribunal’s view the applicant has not given consistent evidence about the development of his relationship with the person [Mr A]. In his statement dated 28 May 2018 the applicant states that he had his first sexual encounter with [Mr A] after a gathering/party at his place in 2005. He said that [Mr A] did not contact him but after a few days he went to see [Mr A]. He then said that he saw [Mr A] again nearly a month after when [Mr A] came to him and told him he ([Mr A]) was gay and said that he had feelings for the applicant. The applicant then states that he told [Mr A] to “stop it”. The applicant then said that one day, after maybe four months went by, he saw [Mr A] again at a party at a friend’s place; he spoke with him at the party and then they all left the party. He said that he was at home asleep when [Mr A] called him and told him he was outside his (the applicant’s) house. The applicant continues that he asked [Mr A] to come in and that night they had sex and it was then that the applicant realised he himself was homosexual. After that their sexual relationship developed until [Mr A]’s elder brother first assaulted the appicant by slapping him. He said that after that he called [Mr A] but [Mr A] did not answer his calls so he went to see [Mr A] at his house when [Mr A] told him his family knew about their relationship. The applicant states that he was then scared because he did not want people knowing he was gay and that, after that, things became worse and he did not contact [Mr A] because his brother threatened him (the applicant). He tried to move on but [Mr A] could not and [Mr A] started taking drugs. When the Tribunal at the hearing asked the applicant about the development of his relationship with [Mr A] he gave different details of the development of the relationship stating that he started the relationship with [Mr A] in September/October 2005, he then called [Mr A] a couple of days later and wanted to know what happened but [Mr A] did not answer. He then said that he saw him a couple of days later and had sex then and thereafter had a continual, regular relationship until the accident in January 2006 which the applicant claims was caused by the second assault on him by [Mr A]’s elder brother. He said that he saw [Mr A] every day and they met for sex three to four times a month although the others in the group did not know about them. When the Tribunal told the applicant that his account of the development of his relationship with [Mr A] in his statement was different from his evidence at the hearing he said that he was bad at dates and mentioned that the proper sex was the first incident. He also said that on the occasion that they had sex at his house he called [Mr A] on his mobile and asked him to come to his house and then they had sex. When the Tribunal mentioned that this was also different from what was in his statement and there is no mention of him calling [Mr A] to come to his house he said that he did not have to mention everything.

18. In addition to the concerns raised by the inconsistencies in the applicant’s evidence about the development of his relationship with [Mr A], in the Tribunal’s view if the very serious claims that the applicant makes about being threatened and assaulted by the family/elder brother of [Mr A] were true, including his claims that he has been threatened with harm in Australia after [Mr A]’s claimed suicide, he would have made these claims before he did so, which was in in his protection visa application made in April 2018. When the Tribunal asked the applicant at the hearing when he first mentioned that he did not want to, or could not, return to his country for the reasons he now claims, including that he fears harm from [Mr A]’s elder brother, the applicant said that he did not make these claims until April 2018 (in his protection visa application). When the Tribunal asked him why he did not make these claims earlier, he said that he thought [Mr B] would help him. When the Tribunal pointed out that he had said earlier that [Mr B] rang him when he first went into detention and told him that he would not help him, the applicant then said that [Mr B] did not call him to tell him that until the day after he went into detention and they planned to marry. When the Tribunal pointed out that he had said that he knew after the phone call from [Mr A] on 14 March 2018 that [Mr A] had a family  and would not marry him and asked him again why he did not mention his claims earlier the applicant said that his friend had said to him “maybe you go for refugee”. It is recorded in the delegate’s decision record, a copy of which the applicant provided to the Tribunal, that the applicant told the delegate that he did not mention being gay at his compliance interview on 13 March 2018 because he did not know then about protection visas, that he was on drugs for a long time and he did not want to mention he is gay or let the Nepalese community know he is gay. Given that the applicant told the Tribunal that he himself thought that he was unlawfully in Australia for many years, from about 2014, (although he was in fact unlawfully in Australia from 2012 as recorded in the delegate’s decision record), the Tribunal does not consider that the reasons that the applicant gave the delegate for why he did not make his claims earlier, are reasonable or plausible, especially given the serious claims he makes about his fear of harm in his country from [Mr A]’s elder brother/family.

19. In addition to the above in the Tribunal’s view it is not consistent with the applicant’s claims that he suffered the very serious assaults and threats from [Mr A]’s family /elder brother in Nepal,  that he was able to live at the same address in Nepal with his family from January 2006 until he left his country to study in Australia in February 2009; this was his evidence to the Tribunal. He told the Tribunal that the last “big incident” that occurred involving [Mr A]’s brother happened in January 2006 when he was assaulted from behind causing him to fall from his motor bike and become injured. After that there were threats; his mother received threats when she passed these people in the street. When the Tribunal asked the applicant how he managed to stay in his country without harm for those years he said that he was lucky and he stayed in the house because he injured his leg. When the Tribunal queried this, given that the period was just over  three years, he then said that he did not go to the areas or places where he knew these people were going to be. When the Tribunal queried this explanation stating that these people would have known where he lived the applicant said that he did not know. In the Tribunal’s view this explanation is not consistent with the applicant’s evidence to the Tribunal that these people smashed windows at his house after the first assault on him which he told the Tribunal was about 9 to 10 months before the accident in January 2006. The applicant then said that he ignored these people and did not see them after the attack on him although his mother had to walk through/past them at times.

1. The Tribunal does not accept as true that the applicant suffered an assault at any time from [Mr A]’s elder brother with others as the applicant claims, including when he was riding his motor cycle in Nepal in January 2006. When the Tribunal asked the applicant how he knew that the applicant’s elder brother was responsible for the assault causing the accident he said the he ([Mr A]’s brother) hit him from the back and the applicant recognised his ([Mr A]’s brother’s) bike; there were two people on the bike and the other person on the bike was [Mr A]’s elder brother’s friend. He said that then a bus hit him and he was run over. He then said that he heard [Mr A]’s brother’s voice when he fell down. The Tribunal does not accept that this account of how he knew it was [Mr A]’s brother who assaulted him while he was riding his bike is reasonable or plausible. The Tribunal also raised with the applicant that none of these details about how he came to know it was [Mr A]’s brother who was responsible for the accident are in his statement/s. The Tribunal pointed out to the applicant that his statement dated 28 May 2018 in fact indicates that he came to know that [Mr A]’s brother was responsible for his accident when he came back home from hospital five days after the accident and found out that the attack was done by the [Mr A] family as they called his mother and told her that they did it because [Mr A] had overdosed and they blamed the applicant. The applicant said that he misunderstood. The Tribunal finds that the applicant has given untruthful evidence about this claimed assault to give him a better chance to get a protection visa to stay in Australia.

   Documents submitted by the applicant in support of his claims

2. The Tribunal has considered the various documents from Nepal submitted both to the Department and to the Tribunal in support of the applicant’s claims. Those documents are described above in this decision. The Tribunal discussed generally with the applicant independent country information that it had consulted about document fraud in Nepal and told him that it had to decide whether the documents he produced in support of his claims were reliable evidence of the facts in them. Given the Tribunal’s adverse findings about the applicant’s credibility, and also given the independent country information consulted by the Tribunal in relation to the prevalence and availability in Nepal of fraudulent documents, including documents of the kind the applicant has produced in support of his claims, the Tribunal finds  that the documents produced by the applicant, including the documents described as police reports and medical records, and the documents from [Organisation 1], are not reliable evidence of the facts in them. Given the credibility concerns that the Tribunal has about this applicant the Tribunal also finds that the document which appears to be a copy of a print out from social media posts referring to condolences for the man [Mr A], whom the applicant claims committed suicide in 2013, is not reliable evidence in support of the applicant’s claims.

   Applicant’s return to Nepal as a person who identifies as a gay man

3. The Tribunal discussed with the applicant the country information that it had consulted about the situation for gay people in Nepal and raised with him the fact that that information indicates that the situation for gay people/gay rights in Nepal was much improved and reasonably progressive. The applicant agreed and said that he was proud of his country in that respect and his main concern was his fear that he would be harmed by [Mr A]’s elder brother if he went back to Nepal, for the reasons that he has given.

4. Having regard to the relevant country information that it has consulted in relation to the situation for gay people in Nepal, and given the applicant can return to live in the city, in Kathmandu, where he has lived all of his life with his parents, and also given that he has said that although he does not have a good relationship with his father he has told his mother he is gay and she is supportive of him, the Tribunal finds that, although the applicant may face some societal discrimination, harassment and negative community attitudes because he is gay, there is not a real chance or real risk that the applicant will suffer serious harm or significant harm in Nepal because he identifies as a gay man.

   CONCLUSION

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

6. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

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

   Ms Christine Long
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation
   …
   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)that is not inconsistent with Article 7 of the Covenant; or

   (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)for the purpose of intimidating or coercing the person or a third person; or

   (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   receiving country,  in relation to a non-citizen, means:

   (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:    For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:    For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K  Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L  Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA  Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)    the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …