1831968 (Refugee)

1831968 (Refugee) [2022] AATA 1663 (4 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1831968
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Rachel Da Costa
DATE:4 April 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 April 2022 at 3:53pm
CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – Rastriya Prajatantra Party Nepal (RPP-N) member – support for the monarchy – fear of attacks by Biplab Maoists – extortion – threats of killing – safe third country – political campaign work – return visit to Nepal – peace agreement with Biplab Maoists – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 22 October 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 27 March 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his protection visa application form the applicant provides the following details. He was born in [Town 1], Nepal on [date]. He is married. In Nepal he has his wife, [and specified family members]. He speaks with his family once a week by phone. In Nepal, he always lived in [Town 1], Bagmati district. He speaks, reads and writes Nepali and reads and writes English. He is a Hindu. In Nepal, he was employed from [specified year] to October 1994, October 2004 to April 2007 and April 2007 to October 2017 as [an occupation 1] at various [business 1s] in Kathmandu. He completed [School] in [year].
In August 2017, he travelled to [specified countries] on a one week trip for business. He last arrived in Australia [in] January 2018 as the holder of a Visitor visa, travelling on his Nepal passport issued [in] 2014.
Evidence before the Department
Protection visa application
In a statutory declaration attached to his protection visa application form, the applicant makes the following claims:
·     His family traditionally supported the Rastriya Prajatantra Party (RPP) because they support the King and consider him as the representative of God to take care of the people.
·     The applicant became a member of RPP (Nepal) in 2007. During the election, the applicant was actively involved in political activities and was involved in work to win the election. The election was postponed to April 2008.
·     The applicant engaged in door-to-door campaigning, distributing posters and election manifestos and helping the organisers arranging meetings and the election campaign.
·     In 2013, the applicant was involved in election and political activities again for the national election. During the campaign they faced harassment and intimidation from the opposition parties including the Maoists. They continued to express their political views to change Nepal to a Hindu Kingdom ruled by the King.
·     They started their political campaign in early 2017. Due to their election work and promoting the party’s political agenda the applicant came to the attention of the hard-line Maoists party who started threatening them. The Maoists warned that they will establish the next government whether it is by the Maoists Centre or the CPN(UML) and they would target anyone who supports the King.
·     During that time, one of the hard-line Maoists groups, the Biplab[1] Maoists, started particularly targeting them.
[1] The Tribunal notes that in different sources this name is also sometimes spelled ‘Biplav’.
·     Party leaders advised the applicant that it was better to take steps to leave the country if any Maoists came to power in the 2017 election. The leaders said the Biplab Maoists have support from the Maoists Centre and would use their influence to target political opponents.
·     He contacted an agent to help him get a visa in case he had to leave the country. He was granted the visa on 11 September 2017. He does not know what information the agent provided to obtain the visa.
·     He came to Australia [n] October 2017. His friend [Friend A] came too.
·     During the 2017 constitutional assembly election in November and December 2017 the applicant was not in Nepal. He called his wife and family and asked them to encourage people to vote for RPP.
·     In the 2017 elections, the CPN(UML) formed government supported by the Maoists Centre. He thought they would respect human rights and values and his family told him he could come back. His wife had some health issues. He and [Friend A] returned to Nepal.
·     He returned to Nepal [in] December 2017. [Friend A] told him the Biplab Maoists had demanded money from him and warned they would target RPP activists. He advised that the applicant would soon be targeted.
·     The Biplab Maoists started targeting people like the applicant who support the return of the monarchy. He knew he would soon be targeted for his political opinion and would become a victim of extortion from the Maoists.
·     He discussed with the party activists and his family and came back to Australia [in] January 2018.
·     The situation in Nepal was worsening and there was political chaos in Nepal which was moving towards a Maoist regime.
·     The applicant cannot go to India because he would be targeted and harmed by the Maoists there.
·     If he returns to Nepal, he would be targeted and seriously harmed by the Maoists, including the Biplab Maoists and other political parties that do not agree with his political stand of restoring the monarchy because:
o   He is a member of the RPP
o   He has an active and imputed political opinion promoting the monarchy and restoring the King’s rule
o   He holds a passive and active political opinion and stands against the Maoists and parties advocating Maoist ideology
o   He would face abduction and extortion
·     He would not be able to get protection from the authorities because they support the Maoists
·     Even if he moves to another area in Nepal he would continue to face harm from the Maoists because he will continue to engage in political activities
Documents provided to the Department
Prior to his interview with the Department, the applicant provided some printouts of articles as country information:
·     Document dated 7 July 2018 about two security personnel injured in a clash with Biplab Maoists.
·     Article from the Himalayan Times dated 16 August 2016 relating to protests by the All Nepal National Independent Students’ Union (Revolutionary) resulting in educational institutions closing.
·     Article from the Indian Express dated 2 January 2016 about threats made by the Biplab Maoists about an armed insurgency.
·     Article from The Himalayan Times dated 25 July 2016 about Biplab Maoists burning two taxis in Kathmandu.
·     Article from 16 November 2017 from the Himalayan Times referring to the police arresting members of the Biplab group.
·     Article from 13 April 2018 in the Himalayan Times referring to the arrest of senior Biplab Maoist group members.
·     Article from 9 May 2017 from the Himalayan Times referring to the arrest of a group of Biplab Maoists prior to local elections.
He also provided a copy of a referral from his General Practitioner dated 11 October 2018 to a psychologist for assessment and management relating to a withdrawn mood since finding out that his wife in Nepal has a [medical condition]. He provided a medical certificate dated 18 October 2018 from the psychologist stating that he attended her surgery for an appointment on 18 October 2018 and was required to attend also on 25 October 2018.
Interview with the Department
On 19 October 2018, the applicant attended an interview with a delegate of the Minister to discuss his claims. During the interview the applicant discussed his claims and reiterated why he fears returning to Nepal.
In the interview, the delegate explained to the applicant the qualification to the law relating to Australia’s protection obligations arising under ss 36(3) – (5A) whereby Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in, whether temporarily or permanently, a safe third country. The delegate put to the applicant that as a citizen of Nepal he had the right to enter and reside in India pursuant to the terms of the Treaty of Peace and Friendship between India and Nepal[2] and discussed the implications of that with the applicant.
The delegate’s decision
[2] Made 31 July 1950
On 22 October 2018, the delegate found that as a Nepali citizen, the applicant has statutory effective protection in India as set out in s 36(3) of the Migration Act and therefore the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The review application
On 31 October 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant did not provide a copy of the delegate’s decision to the Tribunal.
Additional statement
Prior to the hearing, the applicant provided an additional written statement to the Tribunal dated 27 January 2022 stating that:
· The Biplab Maoists led by Netra Bikram Chand and the Nepalese government signed a peace agreement but it will not stop the Biplab Maoists from committing human rights abuses and would further enhance their activities and they can now target people whom they consider as enemies with the influence they have now.
· If he returns to Nepal in the reasonably foreseeable future he will face serious harm because of his support for the RPP and his opinion against the Maoists.
The hearings
The applicant appeared before the Tribunal on 9 February 2022 and 8 March 2022 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearings by video using the Microsoft Teams platform (MS Teams) with the agreement of the applicant and his representative. The hearings were held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearings by video having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.
The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review and his representative attended the Tribunal hearings.
Nationality
The applicant claims to be a citizen of Nepal and provided to the Department a copy of his Nepal passport issued [in] 2014. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Nepal. The Tribunal finds Nepal is his receiving country for the purpose of assessing his claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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-LA, 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant gave evidence to the Tribunal that his representative helped him to fill out his protection visa application form and to write his statutory declaration. He said all the information was provided by him and it is all true and there are no mistakes.
During the hearing, the Tribunal discussed with the applicant his family, education, employment, where he lived in Nepal, his migration history, the problems he experienced in Nepal and why he fears returning there. The Tribunal found there to be discrepancies in aspects of the applicant’s evidence between his statutory declaration and the oral evidence he gave to the Tribunal. The applicant also raised several new claims in the Tribunal hearing, all of which undermined his credibility. Overall, the Tribunal did not find him to be a credible witness.
The Tribunal’s concerns and findings are set out below.
First, the applicant made new claims in the Tribunal hearing about being in hiding prior to leaving Nepal and his family being threatened, which raises concerns for the Tribunal.
In his statutory declaration, the applicant does not claim that he was in hiding in Nepal at any point. He claims that from early 2017 he and his political co-workers started their political campaign and engaged in election work and promoting their party’s political agenda. It was these activities that brought them to the attention of the hard-line Maoists who started threatening them. He also does not claim in his statutory declaration that his family were targeted or threatened by the Maoists.
In his interview with the delegate, the applicant did not claim that he had been in hiding or that his family had been threatened by the Maoists.
In the Tribunal hearing, the applicant gave evidence that from late 2016 or early 2017 the Biplap Maoists in his village area started to threaten him regularly when they planned to organise political gatherings. The Maoists said they would harm him because of his support for the RPP and he began to be afraid. They also began to threaten his father. He started to fear for the safety of himself and his family so from early 2017 he began moving around to hide himself. He sometimes hid at home, or at a friend’s place and sometimes in Kathmandu. The threats reached an extreme level.
The Tribunal put to the applicant that in his statutory declaration he said that from early 2017 he was involved in his party’s political campaign for the election and asked him how he could do that if he was in hiding and moving from place to place. The applicant responded that even when he was in hiding he was still involved and attended gatherings in other villages rather than his own but he still hid from the Maoists. The Tribunal expressed its doubt about whether this was plausible. The applicant said said he could not openly campaign and organise gatherings but he attended as a helper and supporter with senior leaders and politicians. He said he was thinking about the safety of himself and his family. The applicant also gave evidence that while he was in hiding the Maoists started to threaten his family members and that is when he decided he needed to leave Nepal for a while.
The Tribunal put to the applicant its concern that he had not previously raised in his statutory declaration or in the interview with the delegate his claims about moving around and being in hiding in Nepal in 2017. He responded that at the time his mind was not working and so whatever came into his mind he put in the statement and he had been worried about going into depression. He said he was not in his mind then but now he can say things confidently and recall them. The Tribunal does not accept this explanation. The applicant has not provided any evidence to suggest that he was suffering from a condition that affected his mind and prevented him from recalling key events at the time he made his statutory declaration. Nor does the Tribunal accept that the applicant being worried about going into depression explains his failure to mention having been in hiding. In the context of the information provided by the applicant in his statutory declaration about his election campaign activities in 2017 and the threats from the Maoists due to those activities, the Tribunal considers that his claim to have been in hiding since early 2017 is sufficiently significant that he would not have forgotten to or failed to mention it if it were true. The fact that he did not raise this claim until the Tribunal hearing raises concerns for the Tribunal about his credibility and the genuineness of his claims.
The Tribunal also put to the applicant that his evidence to the Tribunal about how and in what capacity he participated in the political campaign, including while being in hiding, was different from what he said in his statutory declaration which raised a concern about whether his evidence was truthful. The applicant responded that at the time he gave his statement he could not recall everything but where he is sitting now he is more stress free and so he is saying everything. The Tribunal does not accept this explanation. In his statutory declaration, the applicant claims that he was involved in election campaign work to promote his party’s agenda and it suggests he was an active participant in the campaign. There is no suggestion that he did this while in hiding, or that once in hiding he participated only as a helper or supporter who attended gatherings. In the Tribunal hearing, the applicant gave evidence that due to being in hiding he was constrained in his campaign activities, he could not campaign openly and only attended gatherings in other villages as a supporter. The Tribunal does not accept that these differences in the applicant’s evidence can be explained by his inability to recall everything and being stressed at the time he made his statutory declaration. In the Tribunal’s view, these differences cast doubt on the applicant’s credibility and the genuineness of his claims.

The Tribunal also put to the applicant its concern that he had only raised the claim about threats to his family for the first time in the Tribunal hearing. The applicant responded that again, he said what came into his mind back then but he could not think of everything and he is less stressed now and can share. The Tribunal does not accept this. In the Tribunal hearing, the applicant gave evidence that one of the reasons he decided to leave Nepal was to protect his family from threats that related to his involvement in politics. He did not mention anything about threats being made to his family in his statutory declaration or that this was a reason why he left Nepal. The Tribunal considers that threats of harm to a person’s family are a serious matter. Given the applicant’s statutory declaration was made much closer in time to the claimed events than the Tribunal hearing was conducted, if threats had in fact been made to the applicant’s family and that was one of the reasons the applicant decided he had to leave Nepal, the Tribunal considers that he would have remembered it despite his claim that he felt stressed back then and more relaxed now. The applicant’s failure to mention this claim in his statutory declaration raises and in the interview with the delegate concerns for the Tribunal about his credibility and the genuineness of his claims.
Secondly, the applicant’s evidence to the Tribunal about the claimed threats from the Maoists before he left Nepal for the first time raises concern for the Tribunal.
In his statutory declaration, the applicant claims that after they started their political campaign work in the lead up to the 2017 election, he started being threatened by hard-line Maoists, in particular the Biplab Maoists, who harassed and intimidated him as a political opponent of theirs. He knew the Biplab Maoists did not like RPP activists like him and that he would be targeted for his political opinion and become a victim of extortion.
In the Tribunal hearing, the applicant gave evidence that his problem with the Biplab Maoists began in 2016 and gradually got worse. They would tell him to stop supporting the RPP and to stop organising gatherings. They threatened him two or three times in 2016 but he didn’t take it seriously. He said from late 2016 or early 2017 they started to threaten him regularly and said they would harm him. He gave evidence that in 2017 the threats became extreme and he needed to escape in order to feel safe. The applicant gave evidence that when the Maoists threatened him, they demanded money and threatened to harm him if he didn’t pay. The Tribunal asked the applicant how many times this happened. The applicant responded that it happened many times and they said they would kill him if he didn’t pay. The Tribunal asked him whether he ever paid the Maoists any money. The applicant responded that he did not. The Tribunal put to the applicant that if the Maoists had threatened to kill him so many times if he didn’t pay, but he never actually paid them any money, this undermined his claims that their threats of harm were serious. The applicant responded that when they demanded money they said they would kill him if he didn’t pay, but they never said the amount and he did not have money to give them. The Tribunal clarified with the applicant that the applicant didn’t pay the Maoists and they didn’t follow through on their threat to kill him. The applicant responded that was correct but said if he had stayed they might have killed him. The Tribunal asked the applicant whether the Maoists ever actually harmed him in Nepal and he said he was never harmed. He ran away.
The Tribunal put to the applicant that it might have difficulty accepting aspects of his evidence about being targeted by the Biplab Maoists and why he came to Australia. The applicant responded that they wore masks and never revealed their names. The Tribunal does not accept this as an adequate response. The applicant gave evidence in the Tribunal hearing that the threats from the Maoists in his area became extreme and this is why he needed to escape from Nepal. He said they threatened many times to kill him if he didn’t pay. However, he also gave evidence that they never told him the amount to pay, he never paid them any money and they never harmed him. In the Tribunal’s view, the fact that the applicant says he never paid the Maoists any money despite their repeated threats to kill him seriously undermines his claims that the alleged threats were genuine. The Tribunal also considers the applicant’s claims about the threats to him from the Maoists increasing to an extreme level during 2017 difficult to reconcile with his claim (about which the Tribunal has expressed its doubts above) that he was in hiding for most of 2017 before he left Nepal. The applicant’s evidence raises concerns for the Tribunal about his credibility and the genuineness of his claims.
Thirdly, differences in the applicant’s evidence in his statutory declaration and his oral evidence to the Tribunal about circumstances during his brief return to Nepal from Australia from [December] 2017 to [January] 2018 raises concerns for the Tribunal.
In his statutory declaration, the applicant states that he returned to Nepal [in] December 2017. After returning to Nepal, his friend [Friend A] told him that Biplap Maoists are after him and demanding money from him and he warned the applicant that he would soon be targeted as an RPP activist. The applicant knew that he would soon be targeted for his political opinion and would become a victim of extortion. They discussed with their party activists and family members and decided to come back to Australia.
In the Tribunal hearing, the applicant gave evidence that when he returned to Nepal he feared to go back to his village and so he stayed in Kathmandu where he felt safer. He gave evidence that the Maoists found out he was in Kathmandu and they threatened his family that they would do something to him and they also threatened his parents and other family members. He said he was targeted and they started to demand money and threaten. That is why he came back to Australia.
The Tribunal put to the applicant that what he told the Tribunal about what happened during the time he returned to Nepal was different from what he claimed in his statutory declaration and involved a new claim that his family had been threatened, which raised a concern for the Tribunal. The applicant responded that in his statutory declaration and interview he said whatever came into his mind. What he was telling the Tribunal is why he returned to Australia and he was stressed at the time he made his statutory declaration and he might not have remembered everything that happened to him.
The Tribunal does not accept the applicant’s explanation for the differences in his evidence. The Tribunal does not accept that the applicant being stressed or saying whatever came into his mind can explain, for example, why he said in his statutory declaration that he left Nepal and returned to Australia in January 2018 because he knew he would soon be targeted by the Maoists, but he told the Tribunal that he and members of his family were actually threatened by the Maoists during this time and it was because of these actual threats that he decided to leave Nepal again. These differences in the applicant’s evidence about whether he was threatened or not, and whether his family was threatened, raise concerns for the Tribunal about his credibility and the genuineness of his claims.
Documents provided by the applicant
As referred to in paragraph 6 above, the applicant provided to the Department some printouts of news articles from 2016, 2017 and 2018 about Biplab Maoists as country information. These are considered in paragraph 61 below.
As referred to in paragraph 7 above, the applicant also provided a copy of a referral from his General Practitioner dated 11 October 2018 to a psychologist for assessment and management relating to a withdrawn mood since finding out that his wife in Nepal has a [medical condition], and an associated medical certificate dated 18 October 2018. The Tribunal asked the applicant whether he was receiving ongoing psychological treatment and the applicant said he was not. The Tribunal accepts this.
Findings
Having considered all the applicant’s evidence, for the reasons set out above the Tribunal does not accept the applicant’s central claims about being threatened by the Maoists due to his political activities in Nepal. In light of this, and in light of the Tribunal’s concerns about the applicant’s credibility and the truthfulness of his evidence more broadly, the Tribunal does not accept the applicant’s remaining claims which flow from his central claims.
The Tribunal accepts that the applicant was born in [Village 1] which is near [Town 1], Nepal. The Tribunal accepts that his parents and siblings live in [Village 1]. The Tribunal accepts that the applicant was a farmer in Nepal and also worked sometimes as [an occupation 1] in [business 1s] in Kathmandu, Nepal. The Tribunal accepts that the applicant has a wife and child in Nepal and that they live in Kathmandu with relatives because his wife has a [medical condition] and requires medical treatment.
On the basis of the applicant’s evidence, the Tribunal accepts that the applicant and his family are supporters of the Rastriya Prajatantra Party (RPP). The Tribunal accepts that the applicant was a member of the RPP from 2007. The Tribunal accepts that the applicant was involved with RPP campaign activities in his village for the 2008 and 2013 elections. The Tribunal accepts that these activities included door-to-door campaigning, distributing posters and election manifestos and helping the organisers arrange meetings. The Tribunal accepts that the applicant sometimes helped to organise gatherings in his village at other times as well and sometimes spoke at smaller gatherings. The Tribunal accepts that during the 2013 campaign, supporters of other political parties asked him why he supported the RPP. The Tribunal accepts that the applicant did not suffer any harm during the 2008 and 2013 election campaigns. The Tribunal is prepared to accept that the applicant was involved in RPP campaign activities from early 2017 in preparation for the election. The Tribunal finds that these activities were similar to the activities he had been involved with in past election campaigns.
In light of the Tribunal’s reasons and concerns set out above, the Tribunal does not accept that due to his election work and promoting the RPP’s political agenda, or for any other reason, the applicant started being threatened with harm by the Biplab Maoists, or any other Maoist group, in 2016. The Tribunal does not accept that from late 2016 or early 2017 the applicant was threatened regularly and he started to fear for his life and the safety of his family. The Tribunal does not accept that the Maoists started to threaten or target the applicant’s family. The Tribunal does not accept that the Maoists warned the applicant that they would establish the next government and target anyone who supports the King. The Tribunal does not accept that RPP party leaders advised the applicant that it was better for him to leave Nepal if the Maoists won the 2017 election. The Tribunal does not accept they told him that the Biplab Maoists would use the influence of the Maoists Centre to target their political opponents.
It also follows that the Tribunal does not accept that in early 2017 the applicant went into hiding because of his fear due to the threats of the Biplab Maoists, or that he was moving around during this time between his home, the homes of friends and Kathmandu in hiding. The Tribunal does not accept that the applicant continued to be involved in the RPP’s political campaign while he was in hiding by attending gatherings in other villages. The Tribunal does not accept that the applicant continued to show his support while in hiding by attending gatherings in other villages as a helper or supporter with more senior political leaders to protect the safety of himself and his family.
Given the Tribunal does not accept that the applicant was threatened by the Maoists, it follows that the Tribunal does not accept that through 2017 the threats to the applicant from the Biplab Maoists became extreme. It also follows that the Tribunal does not accept that when the Maoists threatened the applicant they demanded money and threatened to kill him if he didn’t pay. The Tribunal accepts that when the Maoists threatened the applicant they did not tell him the amount of money they wanted because the Tribunal does not accept that he was threatened at all. The Tribunal accepts that the applicant did not ever pay the Maoists any money. The Tribunal accepts that the applicant was never harmed by the Maoists.
The Tribunal accepts that the applicant contacted an agent to help him get a visa to leave Nepal. The Tribunal accepts that he does not know what information the agent provided to obtain the visa. The Tribunal accepts that the applicant came to Australia in October 2017 with his friend [Friend A]. The Tribunal accepts the applicant encouraged his family members to tell neighbours to vote for the RPP. The Tribunal accepts that the applicant’s family did not have any problems with the Maoists while he was away. Given the Tribunal does not accept that the applicant was threatened or harmed by the Maoists before he left Nepal in October 2017 and had to flee for his safety, the Tribunal does not accept that the applicant returned to Nepal in December 2017 because he thought the situation was better, or because [Friend A] told him the situation was better or because the applicant’s family told him he could come back as it was safe.
The Tribunal accepts that the applicant’s wife had some health issues. The Tribunal does not accept that after he returned to Nepal in December 2017, [Friend A] told the applicant that the Biplab Maoists had demanded money from him and warned him they would target RPP activists. The Tribunal does not accept that [Friend A] told the applicant that he (the applicant) would soon be targeted. The Tribunal does not accept that the Biplab Maoists started targeting people like the applicant who support the return of the monarchy. The Tribunal does not accept that the applicant knew he would soon be targeted for his political opinion and would become a victim of extortion from the Maoists. The Tribunal does not accept that the applicant discussed this fear with party activists and his family and this is why he came back to Australia [in] January 2018.
The Tribunal accepts that when the applicant returned to Nepal in December 2017 he stayed in Kathmandu. In light of the Tribunal’s reasons and concerns set out above, the Tribunal does not accept that this was because he feared to go back to his village. The Tribunal does not accept that the Maoists found out he was in Kathmandu or that when they found out, they started making threats of harm against him and his family again. The Tribunal does not accept that the Maoists started to demand money and threaten. The Tribunal does not accept that this is why the applicant came back to Australia in January 2018.
The Tribunal does not accept that the applicant left Nepal in October 2017 or January 2018 in fear of his life due to the Maoists or that he fears returning there for the reasons claimed.
Does the applicant meet the refugee criterion?
In his statutory declaration, the applicant claims that if he returns to Nepal he would be targeted and seriously harmed by the Maoists, including the Biplab Maoists and other political parties which do not agree with his support for the monarchy because he is a member of the RPP; he has an active and imputed political opinion promoting the restoration of the monarchy and declaration of Nepal as a Hindu state; he has a passive and active political opinion against the Maoists and parties advocating Maoist ideology; and he would face abduction and extortion to extort money from him. In the interview with the delegate, the applicant reiterated his involvement with the RPP and his fear of being targeted by the Maoists as the reasons he fears returning to Nepal. In his statement dated 27 January 2022, the applicant claims that if he returns to Nepal in the reasonably foreseeable future he will face serious harm because of his support for the RPP and his opinion against the Maoists. In the Tribunal hearing, the applicant gave evidence that he feared returning to Nepal because the Maoists would demand money and they might harm him. He said that even if he left the RPP they would demand money and they might think he has lots of money because he is returning from Australia.
As discussed above, the Tribunal has accepted that the applicant was a member of the RPP and had some involvement in political activities in his village in support of the RPP, but the Tribunal does not accept that he was threatened or harmed by the Maoists, including the Biplab Maoists, as a result (or at all). To the extent that the applicant’s claimed fears of harm if he returns to Nepal in the reasonably foreseeable future are based on his claims about the harm he suffered in the past (which, as explained, the Tribunal does not accept) the Tribunal does not accept the applicant’s claims. Accordingly, the Tribunal finds that if the applicant returned to Nepal in the reasonably foreseeable future he does not face a real chance of serious harm arising from these circumstances.
The Tribunal asked the applicant whether he would get involved in politics again if he returned to Nepal. The applicant said he would always support the RPP. The Tribunal asked him how he would show his support. He said if he returned and the situation got safer for him, he would go door to door and do what the party needed. The Tribunal asked the applicant what he meant by ‘safer’ and he said if the underground Biplab Maoists come into the government then things would be better and safer for him. As explained in paragraph 57, the Tribunal does not accept that the situation for the applicant was unsafe in the past, in the sense that it does not accept his claims that he was harmed or threatened by Maoists before he left Nepal. The Tribunal is prepared to accept that if the applicant returned to Nepal in the reasonably foreseeable future he would involve himself in politics in support of the RPP in the same way as he did in the past.
Therefore, the Tribunal has considered whether the applicant’s ongoing support for the RPP and future involvement in politics would put him at risk of harm if he returned to Nepal. As discussed with the applicant in the Tribunal hearing, country information indicates that political affiliation in Nepal is important for people, the political environment in Nepal is much more stable than it was in the past and an individual’s membership of a political party and their ability to be politically active and express their political views is generally respected.[3] Country information discussed with the applicant also indicates that support in Nepal for making it a Hindu state, and perhaps returning the monarchy, is returning but this is not a majority view. There have been rallies in support of these ideas by RPP members and others and there have been some clashes with police during these rallies. However, the country information does not indicate that supporters are being targeted by Maoists, including Biplab Maoists, or other political groups for expressing their views.[4] The applicant responded that this might be true at the government level and things look good from the outside but at the bottom for ordinary people is the problem. The Tribunal does not accept the applicant’s response as it is not supported by the country information. In light of the country information and the Tribunal’s findings above that the applicant has not suffered harm in the past as a result of his political involvement, the Tribunal finds that if the applicant returned to Nepal in the reasonably foreseeable future he does not face a real chance of serious harm arising from these circumstances.
[3] DFAT Country Information Report Nepal, 1 March 2019, 3.39, 3.41
[4] (accessed 7 February 2022); (accessed 7 February 2022)

The Tribunal has considered the applicant’s claimed opposition to and opinion against the Maoists and Maoist ideology, and to the Biplab Maoists in particular, and whether this would put him at risk of harm if he returned to Nepal in the reasonably foreseeable future. As discussed above, the Tribunal has found that the applicant did not suffer harm in the past due to his political involvement with the RPP and that he was not threatened or harmed by Maoists in the past in Nepal. As discussed above, country information which the Tribunal accepts, indicates that political affiliation in Nepal is important for people, the political environment in Nepal is much more stable than in was in the past and an individual’s membership of a political party and their ability to be politically active and express their political views is generally respected.[5] This includes supporters of the RPP like the applicant.
[5] DFAT Country Information Report Nepal, 1 March 2019, 3.39, 3.41
In relation to the Biplab Maoists, the Tribunal has considered the country information provided by the applicant about their activities in 2016, 2017 and 2018, however the Tribunal considers this country information to be out of date in light of more recent developments and therefore does not accept it. More recent country information discussed with the applicant in the hearing indicates that in March 2021, the Biplab group signed an agreement with the government and made a commitment to peaceful politics.[6] A lot of its leaders and cadres have been arrested and imprisoned. Country information also indicates that in recent years prior to signing the agreement, violent acts committed by the group were very targeted, not random and not usually directed at individuals.[7] The Tribunal discussed with the applicant his statement from 27 January 2022 in which he states that that even though the Biplab Maoists signed a peace agreement with the government it will not stop them from committing human rights abuses and their political influence will further enhance their ability to target their enemies. The Tribunal put to the applicant that the country information it has does not support the applicant’s claim. The applicant responded that the people involved at the grassroots level do not listen to the top level and the situation has not improved. He said it might be fine but only for people in Kathmandu. The Tribunal does not accept the applicant’s response as it is not supported by the country information accepted by the Tribunal. In light of this, as well as country information accepted by the Tribunal about political participation and expression in Nepal and the Tribunal’s findings above in relation to the applicant’s claims of past harm and his future political involvement, the Tribunal finds that that if the applicant returned to Nepal in the reasonably foreseeable future he does not face a real chance of serious harm arising from his claimed opposition to and opinion against Maoists and Maoist ideology.
[6] (accessed 7 February 2022); (accessed 7 February 2022)
[7] Country Reports on Terrorism 2020: Nepal, US Department of State, >
The Tribunal has considered the applicant’s claim that when he returned to Australia in January 2018 the situation in Nepal was worsening and there was political chaos in Nepal which was moving towards a Maoist regime. The Tribunal discussed country information with the applicant that indicates the overall security situation in Nepal has dramatically improved since the end of the conflict with the Maoists and the Maoists have the ability to control the national agenda without resorting to violence.[8] Country information does not support the applicant’s claim about political chaos in Nepal at the time or that it was moving towards a Maoist regime. Maoist parties are part of the elected government but the Tribunal does not accept that this is the same thing as a Maoist regime.[9] The applicant responded that this situation is true in the cities but it is different in the districts and villages. The Tribunal does not accept the applicant’s response as it is not supported by the country information. Accordingly, the Tribunal does not accept the applicant’s claim and finds that if the applicant returned to Nepal in the reasonably foreseeable future he does not face a real chance of serious harm arising from these circumstances.
[8] DFAT Country Information Report Nepal, 1 March 2019, 2.41, 3.45
[9] DFAT Country Information Report Nepal, 1 March 2019, 2.9
The Tribunal has also considered the applicant’s claim that if he returned to Nepal he would face abduction and extortion by the Maoists. The Tribunal has considered this claim generally and in the context of the applicant’s claim that it would be because he has spent time in Australia and the Maoists would think he has lots of money. As discussed above, the Tribunal does not accept the applicant’s claim that Maoists have threatened him in the past and demanded money from him and threatened to kill him if he didn’t pay. The Tribunal accepts that the applicant has never paid the Maoists any money. As discussed with the applicant in the Tribunal hearing, country information does not support the claim that Nepalis are targeted for extortion simply for having worked overseas in Western countries and are therefore perceived as wealthy.[10] Country information also does not indicate that the problem of extortion has escalated in the years since the applicant left Nepal. Country information indicates that the Biplab group was the most prominent group engaging in extortion activities and as discussed above, they were declared a criminal group in 2019, many of their cadres were arrested and imprisoned and in 2021 they signed an agreement with the Nepal government and made a commitment to carry out their political activities in a peaceful manner, which suggests their activities have declined. The applicant stated that he agreed with the country information but he has shared what he has been through and there is no guarantee of his life if he returns. In light of the Tribunal’s findings that the applicant has not been targeted for extortion in the past, that he has never paid the Maoists any money and the country information discussed above about the change in circumstances of the Biplav Maoists and Nepalese people not being targeted simply because they have worked in a Western country, the Tribunal finds that if the applicant returned to Nepal in the reasonably foreseeable future he does not face a real chance of serious harm arising from these circumstances.
[10] DFAT Country Information Report Nepal, 1 March 2019, 5.36 – 5.37
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Nepal now or in the foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[11] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, the Tribunal is not satisfied that 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. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[11] MIAC v SZQRB [2013] FCAFC 33
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
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.
…

[2022] AATA 1663

4 April 2022

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction