Background
Background to the litigation
It is accepted that the applicant is a national of the Federal Democratic Republic of Nepal (“Nepal”) on the basis of the information provided and verified by the Department, his Nepali passport and his oral evidence. The Tribunal will assess his claims on that basis. The Tribunal further accepts that the applicant does not have the right to reside in any country other than Nepal. The Tribunal finds that the applicant is not excluded from Australia’s protection by s 36(3) of the Act, and Nepal is the receiving country for the applicant for the purposes of s 36(2)(aa).Background The applicant is a [Age]-year-old citizen of Nepal who arrived in Australia [in] March 2014 with a student visa, issued 24 March 2014. The applicant is a single man and has no family in Australia, other than the son of his grandfather’s brother, and his wife, living in [Sydney], and whom the applicant refers to as his “brother and sister-in-law”. He has a brother living in [Country 1] working as [an Occupation], and another younger brother currently living in [Country 2]. The applicant’s parents currently live in Kathmandu city. The applicant grew up in the Terai in south-eastern Nepal, completing his secondary education in [City], approximately [Distance] km from the capital, Kathmandu. The applicant thought he moved with his family to Kathmandu when he was [age range] which would have been in about 2008. He lived with his family in Kathmandu until leaving for Australia in March 2014. The applicant completed his higher education[5] in [Subject 1] in Kathmandu when he was [Age] years old (2013). He said he has never worked before coming to Australia, where according to his application, he worked for a short period from December 2017 until early 2018 for a [Workplace] in [a suburb of Sydney]. At the time of decision, the applicant remains unemployed on a bridging visa, granted 17 May 2018 with no work rights.[5] referred to as “Plus 2”.Protection claims The applicant’s representative submitted to the Department on 19 April 2018 that:· the applicant is a Nepalese citizen, ethnically from the Terai where he was born in the Saptari District in southern Nepal;· as a member of this Ethnic Group from the Terai region, the applicant faced continuous threats from Madhesi Mukti Morcha party (MMM), which is an underground party, and which has targeted the applicant at various times, and the applicant’s claim of persecution is made because of the applicant’s political opinion. The Department application sets out that the applicant does not wish to return to Nepal because of existing civil conflict between the MMM party and the government. The applicant claims protection because:· there is conflict between MMM and the government, where the MMM party forcibly recruit people to train for violence, bomb blasting, killing and robbing the government bank;· people are threatened if they do not join MMM when approached; · there is civil conflict in the Terai region with daily violence, meaning threats to life and early death;· he decided to leave for a safe country for freedom and to start a new life, and if he returns there is a risk he may be forcibly taken by MMM by someone at gunpoint;· in February 2013, at night, many armed people came to the applicant’s house and threatened him that he would be harmed if he did not join MMM, which he refused. He was kicked and struck by a gun and was “seriously knocked down” to the ground and bloodied;· the applicant sought help from a non-government organisation who advised him to leave the country; the applicant moved to other parts of the country where he found it difficult to live and was nearly caught as MMM were searching for him, and finally he moved to Kathmandu in 2013;· the MMM has intelligence all around the country and if he is found they might kill or imprison him and he will be assaulted, mistreated, and starved;· the authorities cannot protect him because the government is not stabilised and changes every six months, and the government and police cannot make decisions and would therefore be unable to protect him and save the applicant’s life;· the applicant cannot relocate within the country because MMM is mobilising its members and its military and the applicant will be caught and punished and mistreated.
Evidence
Evidence Before The Court
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.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is:·Whether the applicant meets the refugee criterion and is a refugee and entitled to a protection visa because of a well-founded fear of persecution, and that there is a real chance, if the applicant returns to his country of nationality,[1] that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion;[2]or if not, ·whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to his country of nationality, there is a real risk that he will suffer significant harm.[3][1] Federal Democratic Republic of Nepal.[2] The Act, s 36(2)(a), and s 5H (“refugee”) and s 5J (“well-founded fear”) definitions.[3] s 36(2)(aa). The applicant’s credibility is in issue. The Tribunal has available an electronic copy of the Department’s file and the Tribunal’s file. At the time of his application, the applicant provided a copy of his passport and citizenship certificate which, together with the statements in the form itself and a submission from the representative dated 19 April 2018, comprised the supporting information. The applicant filed with the Tribunal a copy of the Department’s decision record. The Tribunal has also had regard to the Department’s Refugee Guidelines[4] and relevant country information, the applicant’s oral evidence and information generally available. The Department had invited the applicant to submit any additional information in support of his application by letter issued 15 May 2018, and then to attend an in-person interview. The Tribunal has listened to the applicant’s record of interview with a Department officer on 16 October 2018.[4] PAM3. At the hearing, the Tribunal outlined the Tribunal’s function in the review process, that it was hearing the matter afresh, and that it is not bound by the Department’s findings or reasoning. The Tribunal explained that the Department had refused the application as it was not satisfied that under Australian law the applicant was a refugee with a well-founded fear of persecution. The Tribunal explained to the applicant that it was an opportunity for him to explain why he was afraid to return to Nepal. The applicant confirmed he had provided all the information he wanted considered by the Tribunal before the hearing. Nationality It is accepted that the applicant is a national of the Federal Democratic Republic of Nepal (“Nepal”) on the basis of the information provided and verified by the Department, his Nepali passport and his oral evidence. The Tribunal will assess his claims on that basis. The Tribunal further accepts that the applicant does not have the right to reside in any country other than Nepal. The Tribunal finds that the applicant is not excluded from Australia’s protection by s 36(3) of the Act, and Nepal is the receiving country for the applicant for the purposes of s 36(2)(aa).Background
Decision
Reasons for decision
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.Alan McMurranMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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, where “significant harm” is defined to mean:(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.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.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is:·Whether the applicant meets the refugee criterion and is a refugee and entitled to a protection visa because of a well-founded fear of persecution, and that there is a real chance, if the applicant returns to his country of nationality,[1] that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion;[2]or if not, ·whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to his country of nationality, there is a real risk that he will suffer significant harm.[3][1] Federal Democratic Republic of Nepal.[2] The Act, s 36(2)(a), and s 5H (“refugee”) and s 5J (“well-founded fear”) definitions.[3] s 36(2)(aa). The applicant’s credibility is in issue. The Tribunal has available an electronic copy of the Department’s file and the Tribunal’s file. At the time of his application, the applicant provided a copy of his passport and citizenship certificate which, together with the statements in the form itself and a submission from the representative dated 19 April 2018, comprised the supporting information. The applicant filed with the Tribunal a copy of the Department’s decision record. The Tribunal has also had regard to the Department’s Refugee Guidelines[4] and relevant country information, the applicant’s oral evidence and information generally available. The Department had invited the applicant to submit any additional information in support of his application by letter issued 15 May 2018, and then to attend an in-person interview. The Tribunal has listened to the applicant’s record of interview with a Department officer on 16 October 2018.[4] PAM3. At the hearing, the Tribunal outlined the Tribunal’s function in the review process, that it was hearing the matter afresh, and that it is not bound by the Department’s findings or reasoning. The Tribunal explained that the Department had refused the application as it was not satisfied that under Australian law the applicant was a refugee with a well-founded fear of persecution. The Tribunal explained to the applicant that it was an opportunity for him to explain why he was afraid to return to Nepal. The applicant confirmed he had provided all the information he wanted considered by the Tribunal before the hearing. Nationality