1823809 (Refugee)

1823809 (Refugee) [2023] AATA 3556 (2 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1823809
COUNTRY OF REFERENCE:                   Nepal
MEMBER:David McCulloch
DATE:2 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 02 August 2023 at 11:10am
CATCHWORDS
REFUGEE – protection visa – Nepal – cognitively not able to meaningfully participate in Tribunal’s hearing – particular social group – widows in Nepal who suffer significant mental health issues – not culturally appropriate for applicant to live with daughter – Communist Party Nepal Maoist (Biplov) (CPNM Biplov) – not paying the demanded donation to political parties – credibility concerns – claimed death or disappearance of husband – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Nepal, applied for the visa on 22 October 2015. The applicant attended an interview with a delegate of the Department on 28 February 2018. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 25 July 2023 at 1.30pm to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son, [Mr A], who gave evidence in person and the applicant’s daughter, [Ms B], who gave evidence by telephone from Nepal.
The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The Tribunal notes that [Mr A] communicated in English.
It has been indicated on behalf of the applicant that she has significant mental health issues. A considerable amount of medical evidence has been provided of diagnoses of mental health conditions during the applicant’s time in Australia. In the interview with the delegate, it became apparent to the delegate that the applicant was not cognitively able to participate in the hearing. Her son, [Mr A], was present and spoke on the applicant’s behalf at the interview.
The Tribunal requested contemporaneous medical evidence outlining the applicant’s mental health conditions. Provided is a report dated 12 May 2023 of a psychiatric assessment of the applicant by [Dr C]. Included in the report is the fact that at times the applicant talks but at other times does not. She suffers from social withdrawal. She does not respond to queries and uses minimum words. The report indicates that cognition is impaired in terms of her alertness and concentration. She has impaired judgement and insight. The report concludes that the applicant needs further observation and longitudinal reviews. She suffers from PTSD and grief which is partially remitted. She suffers from psychotic depression which has remitted and had a brief episode of delirium which has resolved but with evolving neurocognitive disorder therefore she needs further reviews as either an outpatient or inpatient.
At the commencement of the hearing the Tribunal asked the applicant simple questions with some degree of responsiveness from her. However when there was any deviation from very simple questions the applicant was not able to meaningfully respond.
Similarly to the delegate, the Tribunal at the hearing formed the view that the applicant was not able to meaningfully participate in hearing and answer the Tribunal’s questions. The Tribunal therefore relies on the evidence at the hearing given by the applicant’s son in Australia and daughter who participated in hearing by telephone from Nepal.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, 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.
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. The Tribunal has before it the DFAT Country Information Report – Nepal, 1 March 2019.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant’s migration history is cited from the delegate’s decision record, and the applicant’s Movement Record. The applicant was granted a Visitor (Subclass 600) visa on 19 August 2013. The applicant first arrived onshore [in] September 2013 on that Visitor visa. The applicant departed Australia [in] September 2014 on a Bridging visa A. The applicant returned to Australia [in] May 2015 on a Visitor (Subclass 600) visa. The applicant applied for a Protection (Subclass 866) visa on 22 October 2015, which is the subject of this review. She was granted a Bridging visa A on 30 October 2015 which remains in effect to the date of this decision.
The following information is apparent from the protection visa application form. The applicant was born on [date] in [Village 1], Baglung, Nepal. The applicant is of Nepalese ethnicity, whose religion is Hindu. The applicant speaks, reads and writes Nepali. The applicant is widowed. She began her relationship [in] December 1975 and became widowed [in] April 2015. The applicant has one daughter who resides in Nepal who she is in contact with fortnightly by phone. The applicant has a son with whom she resides in Australia. The applicant has otherwise always resided in Baglung, Nepal. The applicant has never undertaken formal education or been employed. The applicant was supported by her parents in Nepal before her marriage. She was then supported by her husband once married. The applicant remains unemployed and is now supported by her son in Australia.
The applicant submitted the following Statutory Declaration, declared on 19 October 2015, at [Suburb 1], which sets out her claims for protection (headings and footings omitted, not corrected for spelling or grammar):
1.I came to Australia as a holder of family sponsored visitor visa.
2.I applied a visitor visa for Australia. Our initial plans was to come to Australia to celebrate Nepalese greatest festival Dashain which falls on 22 October 2015. My husband was also planning to apply a visitor visa. However, my husband passed away, in a tragic accident, before the grant of a visitor visa to me. He was working at our farm when he fell down from tree and lost his life.
3.Our married relationship lasted for forty years. We are blessed with two children. My son is a citizen of Australia. My daughter resides in Nepal.
4.After my husband’s death I was trying to cope it with the full support from my children. In the meantime Nepal was shocked by terrible Earthquake on 25 April 2015. Our family home turned into rubble by the effect of the Earthquake. I was still performing rituals of my husband when Earthquake strike occurred in Nepal.
5.In Baglung district political activity of Communist Party Nepal Maoist (Biplov) (CPNM Biplov) is very high. CPNM Biplov is the faction which did not agree in the peace talks and actively working to establish communist system in Nepal. They are actively working to fight against the Government of Nepal. CPNM Biplov is forming their own army.
6.Our family in Baglung is considered a rich family because our family own farm lands. We have been always targeted by rebels in the past and now as well. The political parties have demanded donations from us on many occasions. The local leaders are also aware that my son is residing in Australia. They are under the impression that he has earned a huge amount of money while working in Australia.
7.My late husband had donated the requested amount several times. The demand of donations was ongoing until the death of my husband. My husband was managing to pay the donations. I was never involved in such activities.
8.Immediately after the death of my husband, local leaders of the CPNM Biplov contacted me and asked me to continue the support my husband was providing to them. As I was never involved in such activities I refused them to provide the donations. Also I was not in position to donate the requested amount as I was not able to generate any income from my farmlands because of my unhealthy mental and physical condition. I was threatened of my life once I refused to pay donations.
9.I did not want to support political parties financially as I was not aware of the political issues and did not want to get involved. Being in fear of my life I wanted to leave my home town as soon as possible. I left Nepal immediately after I finished death rituals of my late husband.
10.My son was also unable to attend for the final rights of his father due to recurring aftershocks and closedown of only international airport in Nepal. My son wanted to support me during the toughest and saddest time of my life. Because of the demand of donations form Maoists I told him not to come to Nepal. I was in fear that my son will also be in trouble if he comes to attend final rights of his father.
11.Even after my arrival in Australia I was not able to cope with the situation thinking that the Maoist did not even spare me for asking donations while I was mourning. Because of all these incidents my mental health started to deteriorate. My son and his family were worried about my disastrous situation. When I came to Australia I still couldn’t cope with the lost and grief My sleeping disorder, feeling of sadness and fear of being physically harmed made my family upset here. My son contacted in [Hospital 1], NSW. After few consultations they have advised me to have some medicines. I have started to take medication.
12.After recognizing my the circumstances I will face upon my return to Nepal and my changing behaviour my son decided to keep me here under contributory parent visa by paying large amount of money. I requested to waive no further stay condition 8503 that was attached to my visa. I was advised that I couldn’t apply for another visa even the condition 8503 is waived due to condition 8531 attached to my visa.
13.I say that, in this situation I am not able to go back to my country Nepal. I fear that I will be harmed for not paying the demanded donation to the political parties. Also, I will not be able to settle properly in the society being a widow with a mental condition. I afraid that I will be isolated and treated very badly there. It is quite evident that people throw stones and beat people living with mental illness. My community will not involve me in any social activities there. This will worsen my situation more critically. I want to live without any fear and discrimination. I am positive towards my treatment which has been started here.
On 25 May 2018 the Department sent the applicant a s 57 Natural Justice letter, inviting the applicant to comment on information and provide evidence of all medical appointments she has attended since 2013 and posing other questions. The applicant provided a response on 18 June 2018.
The applicant submitted the following documents to the Department in response to the s 57 letter:
·An undated letter written by the applicant’s son answering the Department’s questions.
·A Mental Health Discharge Summary from [Hospital 1] for the admission period of 28 September 2015 to 13 October 2015.
·A letter written by [Dr D], [Clinic 1], dated 19 February 2018. The letter states that [Dr D] has been treating the applicant since January 2018 and diagnosed the applicant with severe mental health issues and trauma.
Independent information
The 2019 DFAT report on Nepal provides the following information (underlining added):
Mental Health
2.24 Mental health facilities are poor and availability throughout the country is not consistent. Decades of conflict and natural disasters have left many Nepali people vulnerable to mental health disorders. Stigma about mental health conditions prevents identification of conditions and access to treatment. Stigma is particularly associated with mental health disorders that involve psychosis, such as schizophrenia.
2.25 Victims of torture and conflict may have access to government provided facilities which are supposed to be free, but in practice charge money. Drugs that are used to treat people with mental health problems may not be in line with current international medical practice, or not available at all.[1]
[1] DFAT, Country Information Report – Nepal, 1 March 2019, p. 11.
[…]
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.[2]
[2] DFAT, Country Information Report – Nepal, 1 March 2019, p. 19.
[…]
Women
3.61 The 2015 Constitution prohibits discrimination on the basis of gender in relation to inheritance and government employment and allows for ‘positive discrimination’ to establish special opportunities in relation to education, health, employment and social security. The constitution also prohibits physical, mental, sexual and psychological violence against women and establishes the right to compensation for such violence.
3.62 The World Economic Forum’s Global Gender Gap Report 2017, an index that measures gender-based gaps in accessing resources and opportunities ranked Nepal 111 out of 144 countries.
3.63 The practice of ‘chaupadi’, in which women are expelled from their homes during menstruation and sometimes after childbirth, persists, despite being outlawed in 2005 and prohibited in the 2017 criminal code. The practice sees menstruating women, particularly in rural western parts of the country, affected by ‘untouchability’. These women will live in sheds that are otherwise used by cattle or specially designed for this purpose as ‘menstruation sheds’ where they may be exposed to extreme temperatures and wild animals including venomous snakes. During this time they are not allowed to access green vegetables, fruit, other plants or milk and have limited access to water. Women are expected to engage in outdoor manual labour during this time. These conditions may be life threatening. Chaupadi may be known by different names including chhue, bahirhunu, chaukulla or chaukudi, depending on the district. While mostly associated with rural areas, particularly in the west of the country, taboos about menstruation can be found across the country, including in urban areas and among women who remain displaced by the 2015 earthquake and living in temporary shelters.
3.64 Nepali women and girls across society, regardless of their economic, caste or ethnic status, are vulnerable to violence in many forms, including rape, sexual abuse and human trafficking. Nepal’s laws contain a narrow definition of rape and have a 180-day limitation period for filing complaints. Penalties for marital rape are low and the crime is rarely reported. The 2017 criminal code set new, higher gaol sentences for rape, however DFAT is not aware of whether this provides an effective deterrent. Police frequently fail to register complaints or investigate and prosecute rape cases, and often divert cases to settlement though informal justice mechanisms, particularly in rural areas.
3.65 Reports of sexual assault to police are increasing as awareness of the criminal nature of that act and the police response increases. Most rapists are close family members and women from low socio-economic communities are particularly vulnerable.
3.66 According to the 2018 statistical update to the United Nation’s Development Fund’s Human Development Report, 25 per cent of women have experienced intimate partner violence in Nepal. Domestic violence shelters do exist in small numbers in some districts. They do not provide long-term solutions, often limited to 45 days of residence, and women who temporarily live in shelters are often forced to return back to their violent domestic situation due to a lack of alternative options. Many women lack financial independence and are reluctant to seek help in situations of violence because of the risk to their security and livelihood.
3.67 The 2009 Domestic Violence Act provides for monetary compensation and psychological treatment for victims, but authorities generally do not prosecute domestic violence cases. The legislation has a reconciliation and mediation approach and compensation must be pursued through the courts.
3.68 Sexual harassment is a commonly reported problem. The practice is banned, but women’s groups report that penalties are not severe enough to act as a deterrent. Women who work in the informal sector are particularly vulnerable to sexual harassment.
3.69 The mistreatment and killing of women for allegedly practising witchcraft is still prevalent in Nepal. Allegations of witchcraft most often relate to the onset of sickness or death amongst people and animals. Diseases spread through epidemics are also believed to be related to black magic. Victims are often beaten and forced to consume human excrement. Victims are usually poorly educated, economically vulnerable, from low-castes with little support around them. Widows are particularly vulnerable. Women do not often report cases because of a fear of being abandoned by their families and ostracised from their communities. The Anti-Witchcraft Act 2015 provides for jail sentences of 5 to 10 years and fines of up to AUD$1,400 for those convicted of maltreatment of anyone on accusations of witchery.
3.70 Nepali police have set up special women’s cells in police stations that are staffed by female police officers to facilitate the reporting of crime by women in all districts. NGOs report that many of these cells are not fully operational, but that the situation is improving and that the police have continued to resource and improve these services.
3.71 Nepali women rarely receive the same educational, employment and economic opportunities as men. Girls in particular are vulnerable to early marriage which disrupts or ends their formal education. Single women and widows are particularly vulnerable. While a widowed woman is legally entitled to her late husband’s estate, many widows are unaware of their rights or unable to enforce them due to traditional attitudes and weak legal protections.
3.72 Part 2 of the 2015 Constitution has introduced positive changes to the citizenship rights of women. Children’s citizenship can now be conferred through a mother or father, whereas in the past citizenship had to be attested to by a husband or father.
3.73 Current laws allow foreign women married to Nepali men to immediately obtain Nepali citizenship while foreign men married to Nepali women can only become a naturalised Nepali after domiciling permanently in Nepal for fifteen years. These men also face other restrictions including restrictions on employment and restrictions on the length of visas that they are able to obtain. Legislation stemming from the constitutional changes has not been finalised. The United States 2015 Human Rights Report for Nepal noted the ongoing difficulties faced by people whose citizenship was based on naturalization (rather than descent). However, endorsement from a husband is required for citizenship by descent for women, which this has been known to be refused by husbands (or their families, in the case of widowed women), for example in property disputes; a non-citizen cannot own property.
3.74 Women’s NGOs report that it is difficult to obtain a divorce in Nepal. Legal changes have made it possible for a woman to divorce her husband and still keep some of the property, and even to gain child custody rights. However, such court cases can be lengthy and expensive and it can take many months to obtain a divorce if the woman makes any kind of property or custody claims.
3.75 DFAT assesses that women in Nepal face high levels of societal and official discrimination and a moderate risk of violence. However, the experience of individual women varies. Women from poorer or lower-caste backgrounds experience a higher risk of discrimination and violence.[3]
[…]
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.[4]
[3] DFAT, Country Information Report – Nepal, 1 March 2019, pp. 22–23.
[4] DFAT, Country Information Report – Nepal, 1 March 2019, p. 25.

The 2023 Country of Origin Information Services Section (COISS) of the Department of Home Affairs Common Claims report on Nepal provided the following information:
Members of the Maoist splinter group, the Netra Bikram Chand (Biplav)-led Communist Party of Nepal, continued to be arrested and imprisoned, after the government declared it a criminal group in March 2019. The group was suspected to have been involved in a number of bombings in Nepal. In May 2018, Nepal’s Home Minister Ram Bahadur Thapa said the group’s activities were aimed against the state. In February 2019, the Chand-led Communist Party of Nepal claimed responsibility for the bombing of the Kathmandu offices of multinational telecommunications company, Ncell, in which one person died and two were seriously injured. The Chand-led group said that the attack was to punish the company for not paying taxes to Nepal’s government and apologised for the death of a civilian. In March 2019, police said they had arrested at least 70 cadres of the Chand-led group across the country and seized weapons following the February bombings. Also in March 2019, a government cabinet meeting declared the Chand-led party a criminal group and decided to curb its activities. Scores of its leaders were subsequently arrested, as were hundreds of cadres. In June 2019, police in Sarlahi killed Kumar Paudel, a district leader of the Chand-led group, in what an investigation by the National Human Rights Commission (NHRC) concluded was an extrajudicial killing.[5]
[5] COISS, Common Claims – Nepal, 13 April 2023, pp. 24–25.
The Tribunal notes the following extracts from a COISS research report dated 10 April 2018 concerning the situation in terms of widows and those with mental health issues in Nepal (underlining added):
Is there any information to suggest that widows with mental illness may face further harm in Nepal than just simply being a widow?
Specific information was not located on whether widows with mental illness may face further harm in Nepal other than just being a widow. Sources indicate that both widows and persons suffering from mental illness face social stigma and discrimination in Nepal.
The US Department of State (USDOS) report on human rights practices in Nepal for 2016 indicates that ‘traditional attitudes stigmatizing and shunning widows persisted’ in Nepal.[6] A June 2016 article in the Kathmandu Post refers to ‘a patriarchal mindset’ still prevailing in Nepal, and to social stigma attached to widowed women having ‘profound consequences on them, including economic deprivation. Many widows also regularly face physical, psychological and sexual abuse and torture’.[7] Another June 2016 article from Reuters refers to Nepal as ‘a country where widows face hostility, abuse, discrimination and even enslavement’, and to widowhood remaining ‘surrounded by taboos in this patriarchal society’.[8]
[6] ‘Country Report on Human Rights Practices 2016 – Nepal’, US Department of State, 3 March 2017, OGD95BE926881, Section 6, p.31
[7] ‘Widow woes’, Kathmandu Post, 23 June 2016, CX6A26A6E17047
[8] ‘Women Widowed in Nepal’s Quake Struggle to Survive Amid Discrimination, Abuse’, Reuters, 22 June 2016, CX6A26A6E17033
In relation to persons suffering from mental illness, a May 2016 article in Himal Southasian indicates there is ‘[s]ocial stigma, lack of awareness and discrimination against those suffering from mental illness’ in Nepal. The article states that in a 2011 report, the Nepal Government’s Health Sector Support programme ‘mentioned that young women in arranged marriages, widows and post-natal women are particularly vulnerable’ to suicide in Nepal. There was a ‘lack of public awareness’ of mental illness, which was ‘exacerbated in a situation where no governmental framework and infrastructure is in place. The allocated budget for mental health treatment did not even make up one per cent of the total health budget in 2014-15. There is only one public psychiatry hospital in Nepal, the Mental Health Hospital in Lagankhel, Kathmandu, which provides only medication but no therapy or counselling’.[9] The USDOS report on human rights practices in Nepal for 2016 states that ‘[a]ccess to mental health services was available in larger cities, but the Ministry of Women, Children, and Social Welfare decreased its allocation for mental health organizations during the year from NRs 1.5 million to 1 million ($15,000 to $10,000)’.[10]
[9] ‘The silent epidemic’, Himal Southasian, 11 May 2016, CX6A26A6E20528
[10] ‘Country Report on Human Rights Practices 2016 – Nepal’, US Department of State, 3 March 2017, OGD95BE926881, Section 6, p.38
A June 2015 desk review commenced after the April and May 2015 earthquakes in Nepal summarising existing information with regard to mental health and psychosocial wellbeing in Nepal, includes an overview of mental health epidemiology in Nepal. This indicates that the risk factors for depression, post-traumatic stress disorder, and anxiety in Nepal include being widowed.[11]
[11] ‘Nepal Earthquakes 2015: Desk Review of Existing Information with Relevance to Mental Health & Psychosocial Support’, Inter-Agency Standing Committee (IASC) Reference Group for Mental Health and Psychosocial Support in Emergency Settings, 18 June 2015, CISEC96CF110200, pp.32-34
…
Who are the perpetrators of violence against widows?
There are reports of widows facing abuse or exploitation both within and outside their households. Some widows who remain with their in-laws may be may be confined to the house and treated like servants. Widows are among the groups more vulnerable to gender-based violence in Nepal, with those perpetrating the violence not always held accountable, especially if they occupy a position of power, such as a policeman, or if they are affiliated with an influential political party.
The June 2016 Reuters article indicates that ‘Nepal has around half a million widows’, with many having ‘lost their husbands during the war or to HIV. Others were widowed when their husbands died in accidents while working overseas as migrant labourers’. Some widows, who were married off as teenagers to much older men, were left destitute when their husbands died. According to the article, ‘[i]f they remain with their in-laws they may be confined to the house and treated like servants, activists say. In some cases the family may even blame the widow for her husband’s death’. Widows were ‘[o]ften forced into virtual seclusion’, and were ‘not supposed to remarry or move out of their in-laws’ homes’, leaving ‘many open to exploitation’. Most widows in Nepal were illiterate, with two thirds under the age of 35, ‘compounding the risks of abuse, activists say’.[12]
[12] ‘Women Widowed in Nepal’s Quake Struggle to Survive Amid Discrimination, Abuse’, Reuters, 22 June 2016, CX6A26A6E17033
The previously mentioned June 2016 article in the Kathmandu Post refers to ‘a patriarchal mindset’ still prevailing in Nepal, and to the social stigma attached to widowed women having ‘profound consequences on them, including economic deprivation. Many widows also regularly face physical, psychological and sexual abuse and torture’. Widows were ‘more vulnerable to sexual abuse and exploitation both within and outside their households owing to their current marital status, for they no longer have a male guardian to “protect” them’.[13]
[13] ‘Widow woes’, Kathmandu Post, 23 June 2016, CX6A26A6E17047
A March 2016 report by a UN Country Team (UNCT) Gender Theme Group notes that a United Nations Population Fund (UNFPA) 2013 perception study ‘revealed that women from lower-caste or religious minority groups, widowed, divorced, or separated women, and women belonging to the hill regions, were significantly more likely to report lifetime experiences of violence’ in Nepal.[14]
[14] ‘Position Paper on Ending Violence Against Women and Girls in Nepal’, UN Country Team (UNCT) Gender Theme Group, March 2016, CIS38A80123671, p.3
The June 2015 desk review commenced after the April and May 2015 earthquakes in Nepal summarising existing information with regard to mental health and psychosocial wellbeing in Nepal, indicates that the gender-based violence rate in Nepal was ‘higher among certain vulnerable groups’, including widows. The ‘violence comes in many forms including abandonment, abduction, and sexual assault. Those who perpetrate the violence are not always held accountable, especially if they are in a position of power, such as a policeman, or if they are affiliated with an influential political party’.[15] The document also indicates that widowhood is locally stigmatised, and Nepali war widows ‘are at increased risk of sexual violence because of their marginalized social status’.[16]
[15] ‘Nepal Earthquakes 2015: Desk Review of Existing Information with Relevance to Mental Health & Psychosocial Support’, Inter-Agency Standing Committee (IASC) Reference Group for Mental Health and Psychosocial Support in Emergency Settings, 18 June 2015, CISEC96CF110200, p.25
[16] ‘Nepal Earthquakes 2015: Desk Review of Existing Information with Relevance to Mental Health & Psychosocial Support’, Inter-Agency Standing Committee (IASC) Reference Group for Mental Health and Psychosocial Support in Emergency Settings, 18 June 2015, CISEC96CF110200, p.45
A survey referred to in a January 2017 document by Women for Human Rights, who describe themselves as ‘a nongovernmental organization working for the socio-cultural, economic and political rights of the single women (widows) of Nepal’, found that 78 per cent of widows were ‘found to be victims of various forms of violence against them. Verbal violence was registered at 80%, 12% encountered physical violence whereas 8% underwent sexual harassment’.[17]
[17] ‘WHR in Brief’, Women for Human Rights, 3 January 2017, CISEDB50AD5633
…
Have the authorities in Nepal made any progress in regard to the issue of widows and or witchcraft since 2015?
In relation to widows, as previously mentioned in the answer to Question 1 above, the USDOS report on human rights practices in Nepal for 2016 indicates that ‘traditional attitudes stigmatizing and shunning widows persisted’ in Nepal.[18]
A June 2016 report published by UN Women Nepal indicates that in recent decades, Nepal had ‘made large investments in improving girl’s access to basic education, maternal and child health and ensuring a kind of universal social security to the elderly, widows, single women, and selected marginalized groups such as Dalits. But such services still remain outside the reach of a large section of women’.[19] The report also notes that the ‘social security system with a universal pension for all senior citizens, widows, Dalits and physically disabled persons’, which had ‘been established to ensure some income for particularly disadvantaged groups’, was rudimentary.[20]
Also in June 2016, Reuters reported that ‘[a]lthough Nepal has taken major steps to empower women since the end of its decade-long civil war in 2006, widowhood remains surrounded by taboos in this patriarchal society’. The article notes the comments of Lily Thapa from Women for Human Rights (WHR), a Nepali organisation which campaigns for widows’ rights, who said ‘[t]here is superstition and stigmatisation’ and ‘[w]idows have no status’. She also said that women who had lost their husbands in the 2015 earthquake in Nepal ‘faced a multitude of problems’, including many widows lacking documents to claim their dead husband’s property or facing ‘difficulties getting rebuilding grants because their marriage was not registered, as is common in Nepal’.[21] Widows were reported to be among the groups who were more likely to remain in shelters and to have found it much harder to move home following the 2015 earthquakes in Nepal.[22]
Lily Thapa also said, however, that things were ‘slowly improving’ for widows in Nepal. She noted that ‘several discriminatory laws and policies have been amended in recent years. For example, a widow who remarries no longer needs to return her deceased husband’s property’. Also, social protections had ‘been strengthened, with all widows now entitled to a monthly allowance’. Campaigners said, however, ‘it will likely take many years for old prejudices to die out’.[23] A January 2017 document by Women for Human Rights lists changes to discriminatory laws and policies against single women in Nepal.[24]
Another article from November 2017 also refers to comments by Lily Thapa, who said widows in Nepal ‘face abuse, discrimination, and harassment. They are deprived of many social and economic rights, including property’. Thapa and WHR were ‘creating change by addressing that social stigma, including at the national policy level, by mobilizing their members as change makers in their communities and actions such as the Red Color Movement’. Thapa said that the widows' movement had ‘gained a good momentum with a lot of positive outlook and support to the cause. Yet there is still [a] long way to go to change the stereotype mindsets of the people against widowhood, which is the most difficult part to do away with’. At the political level, widows were ‘making an impact. Recent local elections in Nepal were described by Thapa as a “milestone in the engagement of women in the political process.” Despite being marginalized in society, widows were nominated as candidates by a number of parties, with some even winning’.[25]
Article 38(3) of Nepal’s 2015 Constitution prohibits ‘physical, mental, sexual, psychological or other form of violence or exploitation on grounds of religion, social, cultural tradition, practice or on any other grounds’ against women, while under Article 43 of the Constitution, ‘helpless single women’ are among those who ‘have the right to social security, in accordance with law’.[26] A May 2016 AsiaNews.it article comments that ‘despite such constitutional guarantees, discriminatory practices are widespread in Hindu societies’, with ‘[s]o-called child widows, and women who were briefly married… subject to such discrimination’.[27] The USDOS report on human rights practices in Nepal for 2016 also indicates that the law ‘grants widows complete access and authority to the estate of their deceased husbands; however, traditional attitudes stigmatizing and shunning widows persisted, and communities often ignored the law while the government did not take sufficient measures to enforce it’.[28]
The June 2016 Reuters article notes that earlier, ‘[i]n 2008, in recognition of the large number of war widows and popular aversion to widow remarriage, the government put forward a scheme to pay men a 50,000 rupee ($460) incentive to marry widows’. Widows protested, ‘saying the proposal was open to abuse by traffickers and would turn them into commodities. Nepal’s Supreme Court ordered the government to ditch the initiative’.[29]
In relation to witchcraft, Nepal passed legislation in 2015 which provides for imprisonment and fines for those who physically or mentally abuse persons accused of practicing witchcraft. It is also reported, however, that while government agencies occasionally rescued victims and offered them rehabilitation services, communities often forced victims into mediation with perpetrators in violation of the law.
[18] ‘Country Report on Human Rights Practices 2016 – Nepal’, US Department of State, 3 March 2017, OGD95BE926881, Section 6, p.31
[19] ‘Substantive Equality: Non-negotiable’, UN Women Nepal, 8 June 2016, CIS38A80123609, p.176
[20] ‘Substantive Equality: Non-negotiable’, UN Women Nepal, 8 June 2016, CIS38A80123609, p.6
[21] ‘Women Widowed in Nepal’s Quake Struggle to Survive Amid Discrimination, Abuse’, Reuters, 22 June 2016, CX6A26A6E17033
[22] ‘Voting amidst the ruins’, Nepali Times, 24 November 2017, CISEDB50AD7641
[23] ‘Women Widowed in Nepal’s Quake Struggle to Survive Amid Discrimination, Abuse’, Reuters, 22 June 2016, CX6A26A6E17033
[24] ‘WHR in Brief’, Women for Human Rights, 3 January 2017, CISEDB50AD5633
[25] ‘Calling for action to support widows at the ACFID National Conference’, Devex, 1 November 2017, CISEDB50AD8352
[26] ‘Constitution of Nepal’, Amended to 28 February 2016, Government of Nepal, 20 September 2015, CISEC96CF17383
[27] ‘Against Hindu discrimination, widows wear dress in protest’, AsiaNews.it, 4 May 2016, CX6A26A6E20539
[28] ‘Country Report on Human Rights Practices 2016 – Nepal’, US Department of State, 3 March 2017, OGD95BE926881, Section 6, p.31
[29] ‘Women Widowed in Nepal’s Quake Struggle to Survive Amid Discrimination, Abuse’, Reuters, 22 June 2016, CX6A26A6E17033
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
The Tribunal is satisfied that the applicant is a citizen of Nepal and accordingly her claims will be assessed against Nepal.
As noted above, the Tribunal determined that the applicant was not cognitively able to effectively participate in the Tribunal hearing and answer the Tribunal’s questions. The Tribunal therefore relied on the evidence in the hearing of the applicant’s son in Australia and daughter giving evidence by telephone from Nepal.
The Tribunal is satisfied that as a result of the applicant’s mental health conditions, evidence of which has been provided, she is unable to effectively look after herself in Nepal.
On balance, the Tribunal is persuaded that if the applicant returned to Nepal without family or other support to facilitate housing and day-to-day care, she would face a real chance of deliberate harm amounting to serious harm as a consequence of a combination of her mental health issues and her being a widow. The Tribunal considers that it is the applicant’s mental health conditions that are the principal reason for the harm that she would suffer. Without an ability to effectively communicate or care for herself the Tribunal considers there is the real risk of the applicant being unable to manage effectively her own affairs and thus potentially left destitute and subject to deliberate serious harm from individuals in Nepal that would pray upon the applicant’s mental health conditions and weaknesses. Independent evidence is cited in this decision as to discrimination and prejudice against and potential mistreatment of those in Nepal with mental health issues. The potential mistreatment is compounded by the applicant being a widow which can lead to discrimination and mistreatment as is apparent from independent information.
The Tribunal considers that the essential and significant reason for the harm would be the applicant belonging to a particular social group of widows in Nepal who suffer significant mental health issues.
However, the Tribunal has some not insignificant credibility concerns with aspects of the applicant’s claimed situation and claimed fears of harm in Nepal, particularly that she faces harm from a Maoist splinter group who have been asking for donations and threatened her.
The first concern relates to the circumstances of the claimed death or disappearance of the applicant’s husband. The statutory declarations provided as part of the application for the protection visa indicate that, prior to the April 2015 earthquake, the applicant’s husband was killed when he was working on the farm and fell from a tree to his death. It is indicated that funeral rites were taking place at the time of the earthquake on 25 April 2015.

In contrast, in the report of the applicant’s psychiatrist dated 12 May 2023, it is indicated that the husband left home in 2013 or 2014 without leaving any information about his whereabouts and is still not in contact.
In the Tribunal hearing, in contrast, the applicant’s son gave evidence that his father was killed during the earthquake on 25 April 2015 when he and his mother were in the family home which collapsed around them. However, he indicated that the body of his father was never found.
The Tribunal put to the applicant’s son this was inconsistent with the applicant’s statement about her husband being killed before the earthquake after falling from a tree on the farm. The applicant’s son then changed his evidence to indicate that this was the case. The Tribunal expressed to [Mr A] its significant credibility concerns with his evidence in this respect noting that it would be thought that he would be clear as to the circumstances in which his father died, noting the significance of this event.
[Mr A] indicated that he was not close to his father to whom he had not spoken since 2007 and indicated that he was relying on what his mother had told him.
The applicant’s daughter was asked about the circumstances of her father’s death. She indicated, consistent with the initial evidence of the applicant’s brother in the hearing, that her father was killed during the earthquake when the family home collapsed. She indicated that she travelled to her mother’s village to take care of her mother and a search took place for her father but they did not find him.
The applicant’s daughter did not give an explanation for the various inconsistencies in evidence given elsewhere as to the claimed circumstances of the death or disappearance of the applicant’s husband.
The applicant’s daughter indicated that she stayed with her mother in the village area for two to three days before she took the applicant to Kathmandu as a precursor to her travelling to Australia.
The Tribunal has not insignificant broader credibility concerns as to the applicant’s claimed circumstances as a result of the stark inconsistencies as to the claimed circumstances of the death or disappearance of the applicant’s husband.
The Tribunal also has credibility concerns as to the truth of written claims by the applicant that after the death of her husband she was approached and threatened by the Biplov Maoist group asking for donations and threatening the life of the applicant. In the hearing, when the Tribunal explored with both the applicant’s son and daughter what happened after the death or disappearance of the applicant’s husband, neither gave evidence that there were difficulties faced by the applicant as a result of requests for money and threats from a Maoist group. It was only when the Tribunal put to both the son and the daughter the applicant’s written claims to this effect, that both then changed their original account of difficulties faced by the applicant during this period to say that it was the case that there were requests for money and threats by this Maoist group.
The Tribunal is not persuaded in the way this evidence was given that either the applicant’s son or daughter are being truthful in relation to this evidence.
The Tribunal considers that the claims that there have been demands for money from this Maoist group and threats as a result of the applicant not paying have been constructed to seek to make a claim for protection which is not true.
The Tribunal has broader credibility concerns with the stark inconsistencies in evidence relating to the circumstances of the claimed death or disappearance of the applicant’s husband.
This might create concerns for the Tribunal that the applicant’s husband is still alive and living in Nepal. The Tribunal emphasised to the applicant’s son its concerns as to this evidence that there would be such confusion between the evidence of the son and his sister as to the circumstances of the husband’s death or disappearance.
The applicant’s son maintained that he is relying on what his mother told him and that he himself has had no contact or connection with his father for quite a number of years. The applicant’s son indicated that the core issue is the mental health condition of his mother and that she will not be in a position to look after herself in Nepal. He indicated that he is willing to take any step he needs to including the payment of bonds to facilitate the ability of his mother to stay in Australia under his care.
The Tribunal’s view as to the truthfulness of claims that the applicant faced threats from the Biplov group only results in the Tribunal disbelieving this claim and is irrelevant to claims of harm based on the applicant’s mental health issues, being a widow and not having family support in Nepal.
The credibility concern in relation to stark inconsistencies as to the circumstances of the claimed death or disappearance of the applicant’s husband has a broader impact as to the circumstances claimed by the applicant, particularly the level of support the applicant may have on return to Nepal.
One avenue of conjecture is that her husband is still alive. That, however, begs the question as to why the applicant and her husband agreed to separate with him not coming to Australia. It would be an unreasonable conjecture for the Tribunal to conclude that the applicant would have the support of her husband on return to Nepal. However, the evidence on this issue does create a degree of disquiet for the Tribunal.
The Tribunal is left therefore to consider if the applicant would have family or other support apart from her husband on return to Nepal. This was explored with the applicant’s daughter in the hearing given that she would be the obvious person to house and care for her mother.
The applicant’s daughter indicated that it would not be possible for her to accommodate her mother as it is culturally inappropriate for this to happen in Nepal. The applicant’s daughter indicates that living in her home together with her husband and [number] children is her father-in-law. She indicated that culturally it is not possible for her mother to live in the household with her husband’s father.
Before the applicant’s daughter joined the hearing, the applicant’s son gave similar evidence that the applicant could not live with his sister for the same reasons.
Both the applicant’s son and daughter gave evidence that the applicant and her husband would not travel to the home of the daughter to visit because culturally this was not appropriate. The applicant confirmed that this was the case.
On balance, including the Tribunal taking a searching and sceptical approach to the claims made in light of the not insignificant credibility issues relating to the circumstances of the death or disappearance of the husband, the Tribunal is nevertheless satisfied that it would not be culturally appropriate or practical for the applicant’s daughter to house and care for the applicant given her living arrangements with her husband’s father. The Tribunal accepts as reinforcing this, evidence by the applicant’s son and daughter that the applicant and her husband would previously avoid visiting their daughter at her family home.
The Tribunal is prepared to accept that the applicant has no other family or community support that would facilitate individuals housing and caring for her. As indicated, the Tribunal determines that the applicant would need individuals to be willing to house and care for her to avoid her having to fend for herself, which the Tribunal determines she would not be in a position to do.
As indicated, there is some disquiet as a result of the stark inconsistencies in evidence in relation to the claimed death or disappearance of the applicant’s husband. However, the Tribunal considers that in the light of all of the evidence notwithstanding the credibility concerns that it needs to give the applicant the benefit of the doubt that she does not have family support to house and care for her on return to Nepal.
Given those findings, the Tribunal reiterates what is indicated above that the applicant faces a real chance of serious harm as a consequence of being a member of the particular social group of individuals who have significant mental health issues and are a widow.
The Tribunal considers the harm that the applicant would face would be systematic and discriminatory.
Given that these are conditions inherent to the applicant the Tribunal considers the risk of harm faced by the applicant extends to all parts of Nepal and that she cannot relocate within Nepal to avoid the real chance of serious harm.
While under relevant treaties the applicant would have a right to enter and reside in India under s.36(3) given the applicant’s mental health conditions and the fact that she is a widow without any support in India the Tribunal considers that she faces a real chance of serious or significant harm in India based on her conditions, similar to the harm that she faces in Nepal. Thus s.36(4) applies and the applicant still meets protection criteria notwithstanding having the right to enter and reside in India.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
David McCulloch
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.
…

[2023] AATA 3556

2 August 2023

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Natural Justice