1823563 (Refugee)

1823563 (Refugee) [2021] AATA 4317 (23 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1823563

COUNTRY OF REFERENCE: Nepal
MEMBER:Amanda Paxton
DATE:23 August 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 August 2021 at 9:24am
CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – opposition to Maoists – Nepali Congress (NC) member – fear of attacks by Maoists – physical assault – fear of kidnapping – confiscation of land – extortion – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 91
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

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 dependants.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 August 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Nepal, applied for the visa on 22 February 2016. 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 as outlined in s.36(2)(a) or s.36(2)(aa).
On 14 August 2018, the applicant validly applied for review of the delegate’s decision to the Tribunal, attaching a copy of the delegate’s notification and decision record to the application.
The applicant appeared before the Tribunal on 5 August 2021 to give evidence and present arguments in relation to his application. The applicant was not represented at the hearing. The hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
CRITERIA FOR A PROTECTION VISA
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.
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.
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 themselves 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).
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–5LA, which are extracted in the attachment to this decision.
Section 91R(2) provides that the following are instances of serious harm: (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.
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
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[2]
[1] Migration Act 1958, s.5AAA.
[2] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[3] Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted.
[3] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J, p.482.
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[4] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.[5]
[4] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].
[5] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J of the Act in Nepal and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In reaching its decision, the Tribunal has taken into account all of the evidence before it. It has also taken into account independent country information about Nepal, including that referred to by the delegate in the decision record, a copy of which was provided with the review application.
Nationality
The applicant claims to be a national of Nepal. He has provided the Department with a copy of the bio-page of his Nepali passport, issued [in] 2013 and expiring [in] 2023.[6] This and his other documentary and oral evidence supports this claim. On the available evidence, and in the absence of any contrary information, the Tribunal finds that he is a national of Nepal. This is therefore the country of reference for the purpose of assessing his refugee claims, and the receiving country when assessing his eligibility for complementary protection.
[6] [File number], AAT Doc Id [number].
Background
Based on the documentary evidence before it and the applicant’s consistent evidence in his written application to the Department and at his Tribunal hearing, the Tribunal is satisfied the personal details provided by the applicant are correct. The Tribunal accepts the applicant was born [on date] in Gulmi, Lumbini, Nepal and was a citizen from birth.[7]
[7] [File number], AAT Doc Id [number].
The Tribunal accepts the applicant arrived in [Australia] on [a date in] December 2015 as the holder of a [Tourist] visa, having departed Kathmandu, Nepal on [an earlier date]. The Tourist visa was granted on 26 November 2015 and ceased on 1 March 2016. The applicant has not departed Australia since his arrival.
The Tribunal accepts the applicant’s ethnicity is Aryan and his religion is Hindu as declared on his application, that he married [in] December 2002 in Gulmi, Nepal, and his wife and [children] reside in Nepal. The Tribunal accepts the applicant does not have family living in Australia, and that he can speak, write and read English, Nepali and Hindi.
Written claims for protection
The applicant’s written claims for protection are first put forward in the Form 866C. In summary, he claims that he left Nepal due to persecution starting in 1996 at the hands of Maoist armed revolutionaries who targeted those against their activities. His claims are as follows:
·     The applicant, being an active member of the Nepali Congress (NC), was critical of Maoist activities. He claims that he was beaten in the village and his family were threatened by Maoists with kidnapping and physical disability.
·     The Maoists confiscated the applicant’s land and properties in Gulmi, Nepal.
·     Maoists forced the applicant to support their slogans and their movement. To escape them he went to India for six months, but he was in danger of being killed or wounded mentally and physically by Maoists from Nepal who have easy access to India.
·     He returned to Gulmi and later he moved to Kathmandu and started a small [business] but the problem continued and he was subject to frequent threats and financial demands.
·     While in Nepal, the applicant experienced beatings and was the subject of death threats. Not only did the Maoists confiscate his land in his village, but the applicant claims that they followed him to Kathmandu and asked his [children] about him while they were at school. His wife is still being threatened and questioned about him.
·     When his [business] was destroyed by the April 2015 earthquake, the applicant began planning his departure for Australia.
·     If he returns to Nepal, Maoists will resume threatening him and his family, make financial demands, and he will be subject to kidnapping, physical punishment, hurt and death as revenge by the Maoists.
·     Due to the confiscation of his land and an earthquake in 2015 that devastated his [business], he says he will not be able to survive in Nepal. He will be homeless.
·     The authorities will not be able to protect him if he returns to Nepal as the police have stated that they cannot guarantee his life and government officials were hesitant to help him. His friends assisted him after he lost his [business].
·     The applicant cannot relocate within Nepal to guarantee his safety because it is a small country and Maoists are everywhere, and he does not have any money or property.
Relevant country information
In the following assessment, the Tribunal has taken into account country information provided by the DFAT Country Information Report for Nepal, dated 1 March 2019, and put to the applicant, which reports the following:[8]
[8] DFAT Country Information Report Nepal, 1 March 2019
Recent History
…
2.3 In 1996 the Unified Communist Party of Nepal (Maoist) (UCPN-M) began a nationwide violent insurgency against the government leading to a ten-year civil war. Almost 18,000 people were killed and over 1,300 disappeared before a peace accord was struck in 2006 following an agreement between the Maoists and an alliance of seven Nepali political parties.
2.7 On 25 April 2015 a 7.9 magnitude earthquake struck Nepal. The earthquake and its subsequent aftershocks killed an estimated 8,891 people and injured tens of thousands of people. Significant damage was incurred to national infrastructure, buildings and homes and reconstruction efforts continue several years after the disaster.
…
2.9 Several changes of government, including realignment of coalitions, resulted in two further changes of Prime Minister before national elections were held over two phases in November and December 2017. These saw landslide results in favour of the Left Alliance comprised of the CPN-UML and the CPN-Maoist Centre parties. The two parties merged in early 2018 to form the Nepal Communist Party (NCP), which now holds a close to two-thirds majority in the Federal Parliament, led by Prime Minister KP Oli for his second term. The coming years will see Nepal’s complex transition to a new federalist system.
…
Political Opinion (Actual or imputed)
3.38 All Nepali citizens 18 years and older are eligible to vote. Under the 2015 Constitution seats in the Federal Parliament are reserved for women through quotas, and substantial, proportional allocations made for Madhesis, Dalits, and other minority groups.
3.39 Political affiliation, both at an organisational and individual level, is an important aspect of identity. This was a cause of instability during the conflict and in the years immediately following. Political youth wings, bandhs (strikes, see Private Sector/Business Community), demands for donations from local authorities and the private sector, and the obstruction of tender-bidding processes in line with political interests all contributed to this instability.
3.40 A diverse and competitive array of political parties operates in Nepal, though the system has faced considerable instability in recent years. Unlike the 1990 constitution, the 2015 Constitution has no limitation on parties formed along ethnic lines leading to many ethnic groups to participate formally in political processes, motivated by a belief that they have been excluded from a society that has historically been ruled by dominant ethnic and caste groups.
3.41 Nepal has enjoyed several years of political stability. A lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. DFAT assesses the risk of a return to widespread violence is low.
Fear of Maoists
3.42 Communist parties won the 2017 elections in both the parliament and the provincial assembly. The main far left parties, Communist Party Nepal (Unified Marxist-Leninist) CPN-UML and Communist Party Nepal (Maoist Center) merged in 2018. Before political groups were allowed to politically organise in 2015, Maoists recruited from among ethnic minorities who participated in their insurgency.
3.43 Tens of thousands of people displaced by the long period of conflict in Nepal (see Recent History) remain displaced. As part of the peace process, Maoists and the government agreed on a programme to allow displaced people to return to their homes. The land once belonging to many displaced people had since become occupied illegally or been given away or sold by the Maoists during the civil war. Some displaced people lack documentation, preventing them from reclaiming their property.
3.44 While the two main Maoist parties have merged, the movement has a history of internal splits and the ideology of the two main groups, while merged, is inconsistent. Historical claims of abuses during the insurgency remain unresolved.
3.45 Maoists have the potential to control the national agenda without resorting to violence. In general, DFAT assesses that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants.
Private Sector/Business Community
3.87 There are widespread reports of threats against businesses throughout Nepal. Threats such as coercion, extortion and forced donations, as well as kidnappings or coercion to join political parties, have been identified as the most common forms of mistreatment. However, credible sources told DFAT that the most common occurrence, forced donation, was generally seen as part of ‘doing business’ in Nepal and was regularly encountered. The practice reflects the intensely political nature of Nepali society and the inability of Nepali political parties to formally and directly raise funds to support their activities.
3.88 Businesses may be targeted in bandhs, political strikes intended to shut down business, government or transport services. These have occasionally been violent. However, these attacks affect communities generally and not specifically against particular businesses. While bandhs had been prevalent over several years, since 2016 these have significantly abated. Despite occasional calls for a bandh by disaffected business or political groups, they rarely take hold beyond a specific area, and do not affect wide areas to the extent they have in the past.
3.89 Consistent with high rates of corruption generally, people in business may be required to pay bribes to officials to gain registration and operate in a highly bureaucratic environment. Women in business may be particularly subject to such practices. DFAT further assesses that people involved in business, including small businesses, are subject to corrupt practices that are consistent with other areas of life in Nepal, including by citizens not engaged in small business.
CONSIDERATION OF CLAIMS AND FINDINGS
Fear of Maoists

Having regard to the general consistency of the applicant’s oral evidence with evidence provided across his Protection visa application, his dealings with the Department and independent country information, the Tribunal accepts the applicant’s parents, now deceased, possessed land in the village of Gulmi and supported themselves through agriculture. The Tribunal also accepts that the applicant has siblings in Gulmi and elsewhere in Nepal.
On the same basis, the Tribunal accepts the applicant’s oral evidence that his father was identified as a supporter of NC, which, as the applicant described, supported multi-party democracy in opposition to Maoist parties. The Tribunal accepts the applicant’s oral evidence that his father had no formal role in NC and was not a leader in the district but known in the village as a leading supporter. Taking into account independent country information above that political affiliation is an important aspect of identity in Nepal, the Tribunal accepts the applicant’s evidence that his father, a landowner, was identified as a supporter of NC in the village.[9]
[9] DFAT Country Information Report Nepal, 1 March 2019, 3.39.
The Tribunal considered the applicant’s evidence of his own links to NC to be very vague and beyond saying he organised a meeting, he was unable to identify with any clarity any political activities in which he had been involved. For this reason, the Tribunal has serious concerns about the credibility of the applicant’s claim to have been an active member of NC. The Tribunal does not accept the applicant was an active member of NC when he lived in Gulmi. However, in light of his father’s accepted support for NC, the Tribunal is willing to accept the applicant had a limited political profile in the village as a general supporter of NC.
At hearing, the Tribunal discussed country information set out above indicating that at the time when the applicant finished school and worked with his father on their property, and for the early period of his life in Kathmandu, Maoist insurgents were involved in a violent nationwide struggle against the government. As discussed, over the ten-year period of civil war there was significant loss of life until peace was reached in 2006 following an agreement between the Maoists and an alliance of seven Nepali political parties, including NC.
The applicant told the Tribunal he was targeted by Maoists before he went to India in 1998. He was invited to provide more information about this claim but responded in vague terms and did not offer evidence that he was beaten at the hands of Maoists or forced to support the Maoist movement. However, he indicated that Maoists took goods and animals from the farm for their own purposes. Having regard to DFAT country information above, discussed with the applicant, that abuses at the hands of Maoist insurgents occurred in this period of civil war, and on the basis of the consistent evidence of the applicant, the Tribunal accepts the oral evidence of the applicant that in the period the applicant helped his father on the land in Gulmi, he and his family were subject to Maoist demands for donations and support in the form of produce. However, the Tribunal considers that had the applicant been beaten by Maoists or forced to support Maoist activities he would have provided specific and detailed evidence at hearing. On this basis, the Tribunal does not accept the applicant was beaten by Maoists or that he was forced to support the Maoist movement.
The Tribunal accepts the applicant’s consistent evidence that he left the farm in 1998 and went to India for six months. The Tribunal accepts the applicant’s oral evidence that he returned to the village to live with his parents because they were sick, and he lived in their house for one year before moving to Kathmandu in 2002 with his wife. The Tribunal further accepts the applicant’s open and clear statement at hearing that he has had no involvement with NC or any political party since his move to Kathmandu.
The Tribunal has assessed that the applicant had a limited profile as a general supporter of NC in his village, and that he had no political involvement in Kathmandu where he lived for 15 years. Considering these findings, the Tribunal considers it is not plausible that he was of adverse interest to Maoists or anyone else arising from his political involvement. The Tribunal does not accept the applicant was of adverse interest to Maoists in Kathmandu for this reason. Given the applicant’s very limited profile as a supporter of NC in Gulmi, the Tribunal does not accept the applicant’s claim in his Protection visa application that when he was in India he was afraid of being killed or wounded mentally and physically by Maoists who could follow him there because of his NC links. For the same reason, the Tribunal does not accept that Maoists followed him to Kathmandu, and questioned his wife and [children] about him or that his wife is still being threatened and questioned about him as claimed in his Protection visa application.
The Tribunal has accepted the applicant’s consistent evidence that he moved to Kathmandu with his wife in 2002 where he was involved in a small [business] in leased premises. On the same basis, the Tribunal accepts the applicant’s evidence at hearing, that the business went well until the earthquake in 2015 damaged the building including renovations in which he had invested his own money.
In respect of his claims to have been threatened, intimidated and beaten in Kathmandu by Maoists who knew him as a supporter of NC in the village, the applicant was very vague. He stated he had to move accommodation a few times because Maoists found him in Kathmandu. He claimed these people, Maoists who had confiscated family land, used to come and ask for a levy. The applicant said that he could have sought help from the authorities in Kathmandu, but he does not have links there and they would take more action if you had connections. The Tribunal would expect if the applicant had been threatened as claimed he could provide spontaneous detailed accounts of these incidents, but he could not. The Tribunal does not accept the applicant had to move sometimes in Kathmandu to avoid demands from Maoists who identified him from his village. The Tribunal does not accept the applicant’s claim at hearing that he was unsafe from Maoist threats and this prompted his departure for Australia. The Tribunal finds the applicant was not persecuted in Nepal by Maoists.
When asked what he fears on return to Nepal, the applicant did not identify fear of being targeted by Maoists as a reason. However, the Tribunal raised country information above indicating that the political landscape in Nepal has changed considerably even since his departure in 2016. As discussed, the civil war is over, political parties can now openly organise and do so, and there are democratic elections in which a number of political parties participate, including the Maoists and NC. Maoists have the potential to control the national agenda without resorting to violence, and in general, DFAT assesses that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants.[10] The Tribunal has also taken account of country information above discussed with the applicant indicating that the current political environment provides an environment where political views and involvement are generally respected.[11]
[10] DFAT Country Information Report Nepal, 1 March 2019, 3.45.
[11] DFAT Country Information Report Nepal, 1 March 2019, 3.41.
The Tribunal has considered the applicant’s response to this country information, i.e. at the top of political parties there is reconciliation but at the grass roots level there is still conflict, so it is hard for him to return to the village. However, taking all the evidence into account, the Tribunal does not accept that if the applicant was to return to Nepal he will suffer persecution by Maoists, that Maoists will threaten him and his family, make financial demands, and he will be subject to kidnapping, physical punishment, hurt and death as revenge or for any other reason by the Maoists anywhere in Nepal. It follows that the Tribunal does not accept the applicant will need protection from Maoists in Nepal or that he cannot relocate within Nepal because Maoists are everywhere. Accordingly, the Tribunal finds there is not a real chance or a real risk that the applicant would suffer serious harm or significant harm from Maoists should he return to Nepal.
Demands for a “levy”
The Tribunal has considered DFAT advice above, put to the applicant, that following the war, demands for donations and support for political parties who were not able to raise their own funds continued. The Tribunal also discussed the DFAT advice that while threats against businesses throughout Nepal were widespread and regularly encountered, the most common occurrence, forced donation, is regarded as a part of doing business. On this basis, the Tribunal accepts the applicant as a small businessman may have encountered demands for a “levy”. The Tribunal further considers that should the applicant establish another business on return to Nepal, he may again face similar demands. The Tribunal considers that this conduct does not amount to serious harm as indicated in s.5J(5) of the Act. For this reason, the Tribunal does not accept the applicant faces a real chance of persecution on return to Nepal. On the basis of the country information before it, the Tribunal accepts people may be subject to demands as a part of doing business in Nepal. The Tribunal considers that in these circumstances, the risks to individuals are as a result of business conditions in Nepal, and are risks faced by the population of the country in general and are not faced by the applicant personally. The Tribunal finds the applicant does not have a real risk of significant harm in Nepal for this reason.
Land confiscation
Consistent across his Protection visa process, the applicant has stated at hearing that his primary claim centres around Maoist confiscation of lands. The applicant stated that when he returned from India half the family property had already been confiscated. He explained that the applicant’s family initially had a lot of land so there remained land for them to support themselves. The Maoists confiscated the land because they said the applicant’s family had a lot of land while others were landless. He said that more land was confiscated after his parents died and he was living in Kathmandu. When his parents were alive, he explained, the land was protected because they were living there but after they had died, and as the applicant was not there, more land was confiscated. He said that the family still has a house and some land in the village, but it is in disrepair as there is no-one living in it.
DFAT country information as set out above was put to the applicant at hearing that while abuses occurred during and following the civil war and tens of thousands of people were displaced from land, as part of the peace process, the government agreed on a programme to allow the many displaced people to return to their homes.[12] In response the applicant said they had not done it. He was not able to explain why in a coherent way, but the Tribunal understood the applicant to be saying that while they offered this as part of the peace process, at the grass roots level this had not occurred. When the Tribunal enquired whether he had taken any action to pursue the matter, he said that he had but he was told he must go back to the village to follow this up. The applicant stated he can’t return to the village because he has fought with people there and is in conflict (“adversity”) with them. He said the local authorities are related to the people who now have his land and for this reason he believes they won’t support him to reclaim his land. He stated that because of his long absence from the village he has lost his links and support network there. In response to enquiry in relation to what he fears about return to the village he stated vaguely that anything could happen to him if he returns.
[12] DFAT Country Information Report Nepal, 1 March 2019, 3.34.
Overall, the Tribunal considered the applicant’s evidence that family land had been confiscated to be plausible in light of his consistent evidence and independent country information. On this basis, the Tribunal accepts the applicant’s family lost land in confiscation during the civil war and on the evidence of the applicant at hearing, the Tribunal accepts his family still has a house and some land in the village but that it is in disrepair and unoccupied.
The Tribunal acknowledges that DFAT report there have been significant difficulties for people seeking to reclaim property, as land has been occupied illegally or been given away or sold by the Maoists during the civil war, or where some displaced people lack documentation, preventing them from reclaiming their property.[13] However, on the evidence of the applicant, the Tribunal does not accept he has made efforts to reclaim the land at the village level. On the evidence before it, the Tribunal considers the applicant’s view that he would face conflict at the village level if he made efforts to reclaim land is purely speculative. The Tribunal has also considered this claim in light of country information discussed with the applicant that does not indicate that people returning to their home villages seeking to resolve historical abuses occurring during the insurgency, face harm at any level. The Tribunal is satisfied that the applicant does not face a real chance of serious harm or a real risk of significant harm in the event he returns to his village to seek to reclaim family land lost during the civil war or to remain there.
[13] DFAT Country Information Report Nepal, 1 March 2019, 3.43.
The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. For the reasons set out above, the Tribunal does not accept that if the applicant returns to Nepal now or in the foreseeable future that there is a real chance he faces persecution from Maoists for the reason of his support for NC, or any other reason, in Kathmandu, or Gulmi, or anywhere in Nepal.
Fear of return to Nepal for economic reasons
The Tribunal has accepted above that the building from which the applicant ran his business in Kathmandu was destroyed by the devastating earthquake of 2015. The applicant said that he and his family were safe, but they lost their investment in the building in the quake. He said that since his arrival in Australia he has been employed in Indian restaurants and supports his wife and children who continue living in Kathmandu in rented accommodation. The Tribunal accepts the earthquake undermined the applicant’s economic resources and that he is supporting his family from Australia.
At hearing, the applicant stated he fears return to Nepal because he is not well qualified and he would not be able to find work and he no longer has money for a business so it will be difficult to survive, and he will be homeless. The Tribunal acknowledges that Nepal is among the poorest and least developed countries globally.[14] The Tribunal also acknowledges that employment in Nepal has been seriously impacted by the COVID-19 pandemic.[15] The Tribunal considers that while the applicant may not be able to support himself and his family as he has done since he has been in Australia, he has considerable experience and skill in hospitality, including running his own [business] and working in restaurants in Australia, and he will gain some level of employment on this basis. The Tribunal has also accepted above that the applicant has access to some resources in Nepal, such as his remaining property and run-down house in the village, and that he does not face harm for any reason in the event he returns to his village. On this basis, the Tribunal is satisfied that the applicant will find some employment and he and his family will not be homeless. The Tribunal is satisfied the applicant does not face a real chance of serious harm as instanced in s 5J(5), such as significant economic hardship that threatens their capacity to subsist, denial of access to basic services, where the denial threatens their capacity to subsist or denial of capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist. Further the Tribunal finds that any economic difficulties the applicant may experience are not for a s.5J(1)(a) reason. The Tribunal finds the applicant does not have a well-founded fear of persecution arising from his economic circumstances.
[14] ‘Human Development Report 2020: The next frontier: Human development and the Anthropocene’, United Nations Development Program, 15 December 2020, p.365, 20210219162633
[15] ‘The real cost of Nepal’s second wave’, Bhetwal, A, Nepali Times, 25 June 2021, 20210628104324
The applicant told the Tribunal that he could return to Nepal, but he does not know what he would do especially as his wife is unwell with high blood pressure and diabetes and his children are at school. The Tribunal has considered the economic circumstances of the applicant, accepting that his wife is unwell, and his children are at school. The Tribunal finds on the evidence before it, that the applicant’s wife does not face denial of medical services, nor that his children face denial of basic education, for a s.5J(1)(a) reason, if at all. The Tribunal finds the applicant does not have a well-founded fear of persecution for this reason.
In considering whether there would be a real risk that the applicant will suffer significant harm in Nepal for economic reasons, the Tribunal has considered whether there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Nepal. As discussed above, the Tribunal considers that on the accepted facts, the applicant has considerable experience and skills in hospitality, and he will gain some level of employment on this basis. The Tribunal has also accepted above that the applicant has access to some resources in Nepal, such as his remaining property and run-down house in the village, and that he does not face harm for any reason in the event he returns to his village. The Tribunal also takes into account the applicant’s wife’s poor health and his children’s education, and is satisfied that his economic circumstances in Nepal will enable the applicant and his family to have access to basic medical and education services. Considering all the evidence before it, the Tribunal is satisfied that there is not a real risk the applicant will suffer significant harm as defined at s. 36(2A) in Nepal arising from his economic circumstances. Accordingly, the Tribunal is satisfied the applicant does not have a real risk of significant harm in Nepal on this basis.
Does the applicant have a well-founded fear of persecution if he returned to Nepal?
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, for the reasons given above, the Tribunal does not accept there is a real chance that the applicant will suffer persecution involving serious harm from Maoists or any other authority, organisation, person or group, for one or more of the five reasons mentioned at s.5J(1)(a) of the Act, if he was to return to Nepal, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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).

In MIAC v SZQRB[16] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear in the Refugee Convention definition.
[16] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Nepal.
Considering the applicant’s circumstances, individually and cumulatively, and having regard to the findings of fact set out above, the Tribunal finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Nepal, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from Maoists, or any other authority, organisation, person or group.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Paxton
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2021] AATA 4317

23 August 2021

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