1833189 (Refugee)

1833189 (Refugee) [2022] AATA 714 (7 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1833189
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Alan McMurran
DATE:7 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 07 February 2022 at 12:06pm

CATCHWORDS
REFUGEE – protection visa – Nepal – ethnicity and political opinion – threats of forced recruitment by ethnic/political organisation, and one attack – credibility – delay in applying for protection – non-attendance at university, student visa cancelled and no appearance at review hearing – generalised, vague and inconsistent claims and evidence – concession that claimed attack did not happen – no threats or harm after family relocated – no political membership or activity – previous stated willingness to return – country information – internal relocation and right to enter and reside in third country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1), (4)(b), (5), 36(1A)(b), (2)(a), (aa), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
CPE15 v MIBP [2017] FCA 591
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Lay Lat (2006) 151 FCR 214
MIMA v Rajalingam (1993) FCR 220
Mok Gek Bouy v MILGEA (1993) 47 FCR 1
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v MIEA (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
SZSMQ v MIBP [2013] FCCA 1768
SZTOO v MIBP [2015] FCCA 1631
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged with the Tribunal on 12 November 2018 for review of a decision made by a delegate of the Minister for Home Affairs on 17 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 20 April 2018.
The delegate found the applicant is not a person in respect of whom Australia has protection obligations, as outlined in paragraphs 36(2)(a) or (aa) of the Act and refused to grant the visa because the applicant has statutory effective protection in a third country (India) and is not owed protection obligations by Australia.
The delegate made no finding as to whether the applicant has a well-founded fear of persecution if he returns to Nepal but found that the applicant has a right to enter and reside in India and would not be prevented from doing so. The delegate refused to grant the visa on the basis that the applicant did not satisfy any of the criteria referred to in paragraph 36(1A)(b) of the Act.
On 17 January 2022, the Tribunal conducted a virtual hearing using MS Teams, and the applicant appeared to give evidence and present arguments. The Tribunal determined that it was reasonable to conduct a virtual hearing having regard to the nature of the matter, and to the Tribunal’s statutory objective of providing a mechanism of review that is fair, just, economical, informal, and quick and in accordance with the Tribunal’s current COVID-19 Practice Direction.
The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The Tribunal did not detect any issues with interpretation and no objection was made to the hearing process, and the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments in the manner afforded to him by the Tribunal.
The applicant was assisted by a registered migration agent from a firm of lawyers and migration agents. The representative did not appear with the applicant for the hearing but provided written submissions before and after the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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). 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.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
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, 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
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.
In his interview with the Department, the applicant said MMM persecuted him as a young person, forcing him to be involved, but not his parents as they were too old. He said he was not interested in ethnic violence and as a consequence might be kidnapped or killed. Even in Kathmandu, he felt it was not safe as MMM “have people there and can do things”.
He said in Australia, he “dropped out” of [University] due to non-attendance and not paying fees and stopped studying in 2017. He said he was surviving by borrowing from his brother and other people in Australia. He had delayed applying for the protection visa from 2014 until 2018 because he thought he would study, and furthermore, he did not know about being able to apply for protection until later. He knows about the open border with India which is also accessible to MMM who might find him and kill him. Indian people also “interrupt the life” of Nepali people living in India.
Claims at the hearing – 17 January 2022
The applicant submitted answers to the Tribunal’s questions stating that:
·     his family had moved to Kathmandu after he finished school; he thought it was in 2013, but also said it was when he was “about [Age]” which would put the move around 2008/9; he said the family moved in order to protect himself and his brother from further approaches by MMM and had “stayed there” (Kathmandu) until he came to Australia.
·     his parents sent him to study in Australia in 2014 for his safety, while his middle brother moved to [Country 1] and his younger brother to [Country 2].
·     MMM had made telephone threats several times while he was living in Kathmandu with his parents and brothers. His middle brother had also been contacted by telephone by the group.
·     he had returned once to the Terai after moving to Kathmandu, to [City] where he had been to school, in order to celebrate a festival. He was not harmed on that occasion, although he said he was threatened.
·     before moving to Kathmandu, he was approached several times by a group of 8 to 10 people while he was a student in [City], each time in the evening when he was riding his bicycle on his way home from school. On one occasion there was a fight and he was struck and received some bruising, but otherwise was not seriously harmed.
·     on each occasion he was stopped on his bicycle, he was told if he did not join the group and become involved in their political activities he might be killed;
·     he refused to join.
·     the group had never gone to his family home in his village while he was living there.
·     his brother had also been struck once in the head in a fight but not seriously harmed.
·     he cannot return to Nepal because he will be again threatened by the group, MMM, and forced to join them. He is unsure what they might do to him and thinks they might still kill him if he does not become involved in their political activities.
·     he has never been a member of any political group or party, has not participated in any political activity and is not actively interested or involved in Nepali politics.
·     in Australia, he occasionally listens to FM news about Nepal but has heard nothing recently about MMM. He has not been contacted by the group while in Australia.
·     he has no wish to return to Nepal and will not go there and would rather remain in Australia.
·     he does not wish to return to see his family or parents and does not want to return to Nepal for any reason.
·     he would not try and live in India where they speak different languages and where he would have no support, and will not go there.
·     if returned to Nepal, the same things might happen to him as he experienced before he left, where he was threatened by MMM.
·     he did not make the statement to the Department on 6 October 2016 about returning to Nepal and concerning the cancellation of his student visa, which cancellation he did not recall. He did not know who made the statement.
The Tribunal asked the applicant about the cancellation of his student visa on 17 October 2016. The Tribunal asked if he recalled his statement to the Department dated 6 October 2016, that he had said he wanted to go back to Nepal and take care of family members.
The applicant said he did not recall that statement and went on to deny that he had made any statement at all. He said then (October 2016) he did not have contact from anybody “so that’s not my statement”. He was asked who may have made the statement for him and he said he had “no idea about that”. He said he did not recall his visa being cancelled.
The applicant was reminded by the Tribunal that he had made an application to review the decision by the Department to cancel his student visa, and that he had not appeared for the Tribunal hearing in March 2018. He did not remember, and on the applicant’s request the Tribunal agreed to provide his representative with a copy of the applicant’s statement to the Department from October 2016. The Tribunal read parts of the statement to the applicant at the hearing, including: “I wanted to go back to Nepal and take care of my family members but my parents told me that the after-shocks were still threatening people’s day-to-day lives.” And also: “my parents …suggested me that if I could not do [a Subject 2] Degree, I must at least get any degree in Australia and go back to Nepal which brings many opportunities.”

The Tribunal provided the applicant’s representative with a copy of the applicant’s 2016 statement immediately after the hearing. On 21 January 2022, the applicant replied to the Tribunal with a Statutory Declaration declaring:
I, [the application], of [Address], unemployed, in the State of New South Wales solemnly and sincerely declare as follows:
1.I came to Australia to study [Subject 2] at [University]. There were two purposes to come to Australia. First, to study and develop my career in the field of [Subject 2] and secondly, to escape from the fear of forcefully joining to Madhesi Mukti Morcha, a political organisation fighting for ethnic rights.
2.I now recall that the Department had sent me notice of intention to cancel my visa in September 2016. I responded accordingly.
3.When the Tribunal asked about my response to the Department, I did not remember about it at that time as it was out of my mind. I remembered later that I did give my explanation to my previous student visa consultant. He was the one who wrote a response to the Department on my behalf. This may be the reason that I did not fully remember when the Tribunal asked me about it.
4.I say that, it is also true that the devastating earthquake of 2015 destroyed our house. My father lost job and hence, I could not pay the tuition fees for the [Subject 2] degree.
5.In my response to the Department, I did say that I have to go back to Nepal to take care of family member hoping that the Department will consider not to cancel my visa. Had they not cancelled the visa, the situation would have been very different. I would have continued study to build my career and would have been able to remain in Australia permanently. My main motive is to stay away from the fear of persecution in Nepal. However, they cancelled my visa that placed me into difficult situation. I could not return to Nepal and therefore I had no choice but to lodge the protection visa.
On 7 January 2022, the applicant’s representative had provided a detailed pre-hearing submission in rebuttal of the Department’s decision of 17 October 2018, and in a lengthy summary, submitting that the Department had “accepted” that the applicant will face persecution in Nepal. The submission argued that the applicant would suffer harm in Nepal for the reasons given by the applicant, he could not internally relocate, and he fears significant harm if returned to India which is “not a safe third country” where the applicant could reside.
The Tribunal accepts that the applicant was born in the Terai where he was raised until he was approximately [age range] years old. He went to school there in [City] and lived in the family’s village with his parents and two brothers.
The Tribunal accepts that the applicant and his parents have been living in Kathmandu for a period since at least 2013, and possibly as early as 2008, and that he has no remaining relatives in the Terai; that both his brothers live outside Nepal, he has no relatives in Australia, and that the applicant accepts support from some Australian citizens, and from his brothers overseas. The Tribunal accepts the applicant completed his schooling (plus 2), in Kathmandu in about 2013, including “studying [Subject 1] in physical group”. He has not attended university or completed tertiary studies.
The Tribunal accepts that the applicant came to Australia as a student in March 2014, intending to study [Subject 2]. He was required to study and learn English beforehand. The applicant failed the English course and his parents were unable to pay further college fees for him to continue as a student. They did send him some fees to help him enrol in a Diploma of [Subject 3] at [a] College in Sydney, which the applicant said he had completed, after making his protection application.
The Tribunal asked the applicant for details about what harm he had suffered while living in the village with his parents in the Terai. He said as a young person, he was targeted by MMM, which he regarded as a political group. He said members of the group regularly targeted him when he was cycling home from school. He said they would wait for him in a bushy area with lots of bamboo and force him to stop. They were masked and in disguise, and he was unable to identify them. He said on each occasion they told him he would be harmed if he did not join the group and participate in their political riots and other activities. He said he “denied them” telling them that he “wanted to study”. He said sometimes he would ride home with two friends, before reaching a point in his journey about 4 km from his home where he would ride alone. He said his two friends had also been threatened and they had now “run away” and left the country. He said it happened seven or eight times and always in the evening on his way home. He was asked what they told him and he said they wanted to “make a different kingdom”. He said because of the threats and for his safety, his parents decided to sell up and move to Kathmandu. His memory was unclear as to the actual year when the family moved to Kathmandu. He said it was after he finished school. He said he did not remember when he last lived in the Terai village, except that it was to finish school. His experiences of being threatened by the group of MMM people happened when he was still at school in the Terai, at [City].
He said his middle brother had also been threatened by the group and had suffered a cut to the head on one occasion. The applicant said he had been hit on one occasion as well, but was “not harmed, just bruised”. He was asked about living in Kathmandu where he said he and his brother were threatened several times by telephone calls to join the group. He said however when living in Kathmandu he did not encounter anyone from the group, except for receiving several phone calls and was not harmed when living there.
The Tribunal asked if the applicant could recall any other incidents where he was threatened or harmed before moving to Kathmandu. The applicant said he had told the Tribunal everything he could recall about being harmed. He was asked whether his parents had been harassed or harmed, which he denied, saying they were “too old” and the group had no interest in them.
The Tribunal asked if the group had ever come to threaten him at his home at night in the village. He said it happened always on his way home in bushy areas with bamboo and lots of trees and no one had come to his home. The applicant was quite specific when asked by the Tribunal and said, “they never came to my home”. The applicant said he was afraid of the group and was asked if he reported it to police. The applicant said “no” and when asked why, said it was because the family thought that reporting to police would create more problems, as the police would ask numerous questions and “we thought we might have to go through the court”. He decided with his family they did not want to do that and chose not to report to police.
He was asked if he had returned to the village or [City]. He said he had been back for celebrations for festive occasions. When asked to elaborate, he said he went back on only one occasion, where he was threatened but not harmed and he decided not to go back again. He was asked why he thought the group kept approaching him. He said they wanted him to get involved in their party and their political activities which he had continually refused. When asked if that was the reason he was afraid to return to Nepal, he responded that “I believe the same thing would repeat and I will be threatened, which is why I do not feel like going. I don’t know what they would do to me. They might kill me.”
The applicant was asked if he knew what was currently happening with MMM in Nepal. The applicant said he could not remember the name of the leader of MMM and was not sure whether MMM was a party involved in Nepal politics. On reflection, he thought it was a political party but was not sure if it is involved in the government, as there are many political parties in Nepal, he thought, about six or seven. He told the Tribunal he is not a member of any political party, and “cannot vote” because there was no election conducted. He was asked to explain but said nothing further. He said he had not been back to Nepal since 2014. He said he contacted his parents only occasionally, “perhaps six months”, but could not remember the last time they spoke. He was asked what was happening in Nepal today, and responded that he gets news from listening to FM radio. He was asked what he had heard lately and said he had heard about a company involved in corruption with the museum in Nepal. He was asked if he had heard anything about MMM and responded, “I haven’t heard much about it these days”.
The applicant was asked why he was then still afraid to return to Nepal and what might happen to him. He said he believes the same thing would happen to him again, that the group is still active and will still want him to be involved, and the same thing will “be repeated again”. He was asked if he had made any enquiries himself about the group to inform himself what was happening. He said, “I haven’t done much at this time” and has not made any enquiries about them and has had no contact from them in Australia as “they don’t have my number”.
The Tribunal asked where the applicant might live if he returned to Nepal. The applicant responded that he did not think he would return and said, “I don’t have options to return”. The Tribunal asked again if the applicant were to leave Australia and return, where he would go. The applicant responded that he would rather remain in Australia. He said, “there is no chance that I would return, so no question of where I would stay”. The Tribunal asked him if he would return to Kathmandu and he responded “no”. He was asked whether he remembered the earthquake in 2015, but said he was in Australia at the time and did not have a clear memory about that.
The Tribunal put to the applicant under s 424AA its concerns about his submissions. The Tribunal reminded the applicant of the statement from the representative made 19 April 2018 with the application to the Department. The Tribunal read the submission and reminded the applicant that he had said then he was seeking protection because of his ‘political opinion’. The applicant said that he is a member of the Terai group of people from Nepal, but otherwise made no comment.
The Tribunal referred the applicant to the questions he had answered in the application to the Department. The Tribunal read aloud his answers to questions 78 and 79. He said that the details of the harm claimed were not correct. People had never come into his family house or threatened him like that at night in February 2013.
He was asked about seeking help because he was afraid, and why he had not mentioned any details, and he responded that he was only answering a question about reporting to police. The Tribunal reminded him about saying he was advised by a ‘non-government organisation’ to leave the country. He maintained he was not sure what he may have said about it and when his answer to question 79 was read to him, said he did say that in answer to the question, but could not describe or name the group he had asked for assistance.
The Tribunal told the applicant it was concerned he may not have said everything about what he had experienced and what may have happened to him and why he was afraid, and that if he had not mentioned everything, that may be the reason the Tribunal may not be able to accept his fear was well-founded, and may reject other things he was saying, as there was not enough information to support his claims. He was asked if he wanted to say anything further or add anything to what he had said, which he declined.
The Tribunal put to the applicant country information provided by DFAT[6] and included the statement:
Nepal has enjoyed several years of political stability. A lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. DFAT assesses the risk of a return to widespread violence is low.[7]
[6] DFAT Country Information Report – Nepal, 1 March 2019.
[7] Ibid at [3.41].
The Tribunal pointed to country information which shows that there is a diverse array of political parties operating in Nepal, many along ethnic lines and which are able to participate formally in political process.[8] The Tribunal indicated that there is no longer the same threat of violence in the country in 2022 as had existed in the decade from 1996 to 2006 and that the Australian government view about the threat of a return to violence was currently estimated as “low” risk. The applicant was invited to respond. The applicant indicated he had nothing further to say.
[8] Ibid at [3.40].
The Tribunal asked if the issue for the applicant was that he simply does not want to return to Nepal for any reason, not even to see his family. The applicant said that was his submission, and when asked to explain why that was the case, he said “there is no reason”. He was asked if he still was fearful to return to Nepal and indicated he had nothing further to say or add.
The applicant was asked about what he is doing in Australia. He said he is not working and has no work rights on his bridging visa. He said his friends are helping him while he is living in a hostel in Sydney. He was asked if he would return and live in India, if not Nepal. The Tribunal reminded him his agent had made a very detailed submission about living in India saying that it was not a safe country for him. He said he is “aware a little bit” of what the agent has said and when asked to elaborate, said that: “I believe they have mentioned languages and culture which is not similar”. He made no further comment.
He was asked if he wanted to comment on the Department’s finding that he would not be persecuted if he went to India now or in the future, and what he thought about being harmed in Nepal. He responded that he did not have anything further to say. He agreed with the Tribunal in summarising his submission that he would not want to return to Nepal for any reason, regardless of whether he thought he might be harmed or not, or for any other reason. The applicant repeated that he did not want to return because “the same things will happen as happened before”.
Consideration
The process of establishing whether an applicant’s fear is well-founded involves making findings of fact based on an assessment of the applicant’s claims and relevant country information, speculation as to the reasonably foreseeable future and a finding as to whether there is a real chance that persecution will occur.[9] It is for the applicant to provide evidence and argument sufficient to satisfy the Tribunal of the relevant facts.[10] There is no onus on the Tribunal to make the applicant’s case for him or her.[11] However, the Tribunal must consider all substantial and clearly articulated claims, relying on established facts, expressly made or clearly arising from the circumstances,[12] which includes claims to fear harm in the reasonably foreseeable future if the applicant were to return to his home country.[13]
[9]MIEA v Wu Shan Liang (1996) 185 CLR 259 at [294]: ‘The process of determination involves the delegate’s making findings as to primary facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to an assessment of the ‘real chance’ affecting the treatment of the applicant if he or she were to be returned to China’. As to the ‘reasonably foreseeable future’, see Mok Gek Bouy v MILGEA (1993) 47 FCR 1 at [66]; and MIEA v Wu Shan Liang (1996) 185 CLR 259 at [279] where the High Court referred with approval to the test that the Tribunal had applied in Chen Ru Mei v MIEA (1995) 58 FCR 96.
[10] MIMA v Lay Lat (2006) 151 FCR 214 at [76].
[11] Prasad v MIEA (1985) 6 FCR 155 at [33]. However, findings of fact are not necessarily a preliminary step in every case to the consideration of whether the relevant level of satisfaction is reached. There may be cases where a paucity of evidence means that the decision-maker cannot be satisfied that the claimed fear is well-founded: SZSMQ v MIBP [2013] FCCA 1768 at [42]–[44].
[12] SZTOO v MIBP [2015] FCCA 1631 at [27], citing Dranichnikov v MIMA [2003] HCA 26.
[13] SZTOO v MIBP [2015] FCCA 1631 at [27].
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness, and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The Tribunal formed the view at the hearing that the applicant did not appear unduly anxious or nervous. The Tribunal found however that the applicant’s responses were generalised and vague, lacking in detail he might be expected to remember, such as why a fight broke out, and how he was assaulted on the one specified occasion, being the only occasion that he claimed he was physically harmed, and that his memory as to dates and names and places was poor.
The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.[14] A similar approach is endorsed in the Department’s Refugee Law Guidelines[15] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’).[16] The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[17]
[14] SZLVZ v MIAC [2008] FCA 1816 at [25].
[15] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines). Note that Ministerial Direction No. 84, made under s 499 of the Act, requires the Tribunal to have regard to those Guidelines, where relevant.
[16] UNHCR, re-issued February 2019 at [203]–[204]. Note that the Handbook is not binding on decision-makers.
[17] See Selvadurai v MIEA& Anor (1994) 34 ALD 347 at [348].
As set out in Appellant S395/2002 v MIMA, McHugh & Kirby JJ explained that:
The central question is always whether this individual applicant has a well-founded fear of being persecuted for reasons of ....[18]
[18] Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [58].
In this instance, the claimed reasons are the applicant’s political opinion and his membership of the ethnic Terai population in Nepal.
In assessing whether the applicant held a well-founded fear of persecution, the Tribunal has had regard to the applicant’s individual circumstances as set out in his evidence and submissions. The Tribunal has considered the available information from the applicant, alongside the oral evidence presented. The Tribunal finds and does not accept that the applicant’s fear of persecution based on any ‘political opinion’ is well-founded for the following reasons:
·     Firstly, the applicant has provided incorrect information and has contradicted his evidence significantly about his claims of being physically harmed. He maintains no one attacked him in his home as he had told the Department and claimed initially. He has told the Tribunal he was involved on only one occasion in a fight where he was bruised, and which he described as not serious, despite him being confronted on at least 7 or 8 occasions by the ‘same’ group, in disguise, when riding home from school. He could not identify the people involved each time as they wore disguises but was still sure it was the ‘same’ group.
·     Secondly, he claims nothing further happened to him despite his refusal to join the group threatening him, because he said he wanted to study; speaking out against those intimidating him and maintaining his refusals to join them is not indicative of someone fearful of serious consequences and harm if he did not do what they demanded or threatened. The logical inference is that because of the 7 or 8 occasions he states he was threatened and nothing happened, the applicant did not believe that he would be seriously harmed. He knew the group wanted him to join, but he was not interested. The Tribunal can accept that there may be a chance of harm when one person is confronted by a hostile group. But where the applicant’s evidence is that little or nothing happened on multiple occasions when he was asked to join, except once when he was struck but not seriously injured, the Tribunal is satisfied that accepting the applicant’s account of the events while riding his bicycle, there is no basis for a finding of a well-founded fear of persecution with a real chance of serious harm based on those facts.
·     Furthermore, the applicant was not a member of any political group and held no particular opinion and was not being threatened for that reason, but rather because he was not doing what was demanded, namely, to join the group. It was expected that the applicant would want to join the group as he was from the Terai. The applicant was not opposed to the group for their beliefs but did not want to participate in their activities. What he has described is not in the Tribunal’s view persecution within the meaning of the Act on account of any ‘political opinion’ held by the applicant, or for any other persecution reason.[19]
·     Thirdly, there is no independent evidence produced that the group he encountered was politically motivated at all or was part of an organised group known as the MMM; the claim is that he was wanted to participate in the group’s activities including crime and violent protest, but no independent evidence of any of these activities actually carried out by those threatening him was provided or outlined by the applicant. His position clearly stated is that he had no interest in politics or any opinion for himself which opposed them, just simply that he did not want any involvement in the group’s violent activities.
·     Fourthly, when the family moved to Kathmandu, the applicant was not harmed or threatened at all, and was contacted by telephone on a few occasions; if the group, MMM, had really wanted the applicant hurt or killed, there was time to arrange that outcome, but in fact, on the applicant’s own evidence, the family was living safely in the city, and still continues to do so.
·     Fifthly, the applicant told the Department when completing his plus 2 studies in about 2012/13 in Kathmandu, he was ‘forced’ to join in the group’s activities. Despite several opportunities in the hearing to explain what happened to him, the applicant did not mention any MMM activities he was supposed to have joined while he was living in Kathmandu. This statement was plainly not true when set alongside his other evidence about living in Kathmandu without confronting anyone from MMM, other than from several phone calls and his earlier evidence about refusing to join the group.
[19] Race, religion, nationality, or membership of a particular social group.

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 decision-maker 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.
The applicant has not presented any reliable evidence that he was being persecuted by reason of his race, religion, nationality, or membership of a particular social group. The Tribunal rejects the applicant’s claims that he has a well-founded fear of persecution for reason of his ‘political opinion’ as submitted in his letter to the Department 19 April 2018. In light of the applicant’s contradictions referred to above and the general and vague nature of his responses to the Tribunal the Tribunal does not find the applicant to be a credible witness whose evidence could be relied upon to establish factual information.
The Tribunal has considered the applicant’s other claims and finds as follows.
The DFAT Country Information Report – Nepal, 1 March 2019, provides the following information on the Madhesi:
The Madhesi are a group of people of Indian origin that live in the Terai. Many have continuing strong socio-cultural and ethnic links across the border with India. The term ‘Madhesi’ refers specifically to non-tribal, caste Hindus of Indian origin that live in the Terai. Many Madhesis consider those living in the Terai who do not fit this definition (including Muslims, [name deleted], Pahadis, and indigenous groups who predated Madhesi immigration) to be ‘foreigners’. Less than 50 per cent of the Terai population are Madhesi, and many people from other parts of Nepal have moved to the region seeking jobs.
Madhesis comprise around 20 per cent of Nepal's population but are underrepresented in politics, public service jobs, and the military. Hindi-speaking Indian Madhesis were historically denied citizenship certificates (and therefore also land and access to government benefits) under the Citizenship Act of 1964 and the 1990 Constitution owing to Nepali language requirements. The citizenship law was amended in 2006 to allow people born in Nepal before 1990 and those residing there permanently to acquire Nepali citizenship, but this law contained a short window period for Madhesis to claim citizenship that closed in November 2008.
Efforts by the government to introduce compulsory Nepali language in the region have been seen by some Madhesis as a further attempt to discriminate against them. Economic and political favouritism (by way of land allocations) towards the upper caste Pahadis (hill-dwelling Hindus) was introduced under the ‘Panchayat’ system (1962 – 1990, see Recent History). This, as well as allegations of economic exploitation of the resource-rich Madhes region, have exacerbated feelings of discrimination by the Madhesis resulting in decades of political activism and tension between Madhesis and members of other ethnic minorities living in the Terai region. The extent to which such sentiments are shared throughout the entire community is unclear.
A pro-Madhes autonomy group (the United Democratic Madhesi Front – UDMF) was formed in 2007. The group has signed two peace agreements with the Nepali government with the principal demand being the ‘liberation’ of the Terai region and the creation of a single autonomous unit called Madhes in a new federal system for Nepal. The group has also demanded greater representation in political, military and economic affairs, often at the exclusion of other ethnic groups such as the [name deleted] in the western regions of the Terai. Following a period of negotiations, some Madhesi aligned to political parties and participated in the 2017 election. .
DFAT assesses that Madhesis in the Terai experience moderate official discrimination because of on-going difficulties in obtaining citizenship, which impacts on their ability to access government services. The 2015 Constitution was amended in early 2016 partly in response to Madhesi demands around political representation. Violence in the region remains sporadic, as is evidenced by the protests of late 2015 and early 2016, when upwards of 40 people are reported to have been killed.[20]
…
POLITICAL OPINION (ACTUAL OR IMPUTED)
All Nepali citizens 18 years and older are eligible to vote. Under the 2015 Constitution seats in the Federal Parliament are reserved for women through quotas, and substantial, proportional allocations made for Madhesis, Dalits, and other minority groups.
Political affiliation, both at an organisational and individual level, is an important aspect of identity. This was a cause of instability during the conflict and in the years immediately following. Political youth wings, bandhs (strikes, see Private Sector/Business Community), demands for donations from local authorities and the private sector, and the obstruction of tender-bidding processes in line with political interests all contributed to this instability.
A diverse and competitive array of political parties operates in Nepal, though the system has faced considerable instability in recent years. Unlike the 1990 constitution, the 2015 Constitution has no limitation on parties formed along ethnic lines leading to many ethnic groups to participate formally in political processes, motivated by a belief that they have been excluded from a society that has historically been ruled by dominant ethnic and caste groups.
Nepal has enjoyed several years of political stability. A lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. DFAT assesses the risk of a return to widespread violence is low.[21]
[20] DFAT, Country Information Report – Nepal, 1 March 2019, pp. 15 – 16, paras [3.12] – [3.16].
[21] DFAT, Country Information Report – Nepal, 1 March 2019, p.19 paras [3.38] – [3.45].
The Tribunal can accept that in Nepal the group, MMM, may forcibly attempt to recruit young men to join its ranks and was actively doing so in 2008. The Tribunal finds however the applicant’s evidence about those encounters on his bicycle and that he was threatened by members of MMM was generalised and vague and was not true, as was the evidence about the raid on the family home, which he conceded had not happened. Further, it is not credible or plausible that if these Madhesi activists had a serious desire to harm the applicant because he would not join their cause, that harm would have come to the applicant in the time after they first approached him seeking to have him join their cause. As it was, in the hearing the applicant provided evidence that he suffered no physical or direct harm, other than a bruise on one occasion, and which is not ‘serious harm’ as contemplated by the protection provisions[22].
[22] s. 5J (4)(b) and (5)
Further, there is no independent evidence before the Tribunal that would corroborate the fact that members of Madhesi political/extremists groups were targeting, either currently or in the past, young fighting age Madhesi men in Kathmandu.
The Tribunal has listened carefully to the applicant’s evidence about the family moving to Kathmandu, which he thought was in about 2012/13, or earlier after he was [age], perhaps as early as 2008. The Tribunal has heard that the family was never threatened or attacked. As referred to, the applicant has withdrawn his statement that the family home was entered at night by “lots of armed people” in “2013, Feb at night”, and which, accepting that the family moved to Kathmandu earlier than 2013 after the applicant finished school, could not have occurred if that were true. The applicant’s retraction reflects poorly on his credibility that what he had told the Department in the application and for which information he was solely responsible was true. The Tribunal places some weight on the fact that the applicant did not provide the Department a correct and truthful account of what he had experienced.
The applicant has not provided any detail describing the non-government organisation or people who gave him advice to leave the country for his safety. The Tribunal has not found any country information which suggests NGOs or anyone else was advising or recommending that young people flee Nepal in 2015 to avoid being recruited or harmed by MMM. The Tribunal rejects the applicant’s claim that he sought this help, or that such advice was given to him by an NGO. The applicant says his family considered but did not seek help from police or anyone, and the Tribunal rejects the claim any help or advice was given as described by the applicant from an unidentified NGO. The Tribunal finds that a more reasonable explanation is that the applicant’s parents wanted the applicant to relocate with them to Kathmandu to finish his education and provide him and his brothers better educational and work opportunities.
The Tribunal has found it is not satisfied MMM was involved in threatening or harassing the applicant or in harming him. The Tribunal is also mindful that the current available information on Nepal indicates a very low risk of widespread violence and that the country is in a period of relative political stability. The Tribunal rejects entirely the applicant’s claims that the MMM has any interest in the applicant at all, or that upon his return to Nepal he might be at risk of being harmed, punished or mistreated by its members. It is nearly 8 years since the applicant came to Australia as a student in March 2014. The applicant did not make any claim for protection until April 2018, after his student visa was cancelled. The delay is explained by him on the basis that it was the only option left open following his decision not to return to Nepal for any reason. The applicant was unable when asked to offer any explanation as to why he had decided he would not return to Nepal for any reason and stated that “it is not an option”, even though he had previously stated in 2016 that he wanted to return to look after his family.
In his recent statement on 21 January 2022, the applicant says his “main motive is to stay away from the fear of persecution in Nepal”. The fact is however, that he was prepared to return to Nepal in 2016, but 6 years later when DFAT reprts the circumstances are more stable in that country, he says he is not prepared to return for fear of persecution as his ‘main motive’.
The Tribunal has found that the applicant does not have a well-founded fear of persecution for the reasons set out above, and has rejected the applicant’s claims as untrue, exaggerated, and not soundly based either as to any past fear or fear in the foreseeable future. In his post-hearing claims, the applicant now blames the cancellation of his student visa by the Department, failing which, he claims things would be different as he would have completed his studies. The Tribunal notes however that the applicant had not completed his studies in Australia previously when offered the opportunity and did not appear for a Tribunal hearing when given the opportunity to review the cancellation decision in 2016. The Tribunal rejects the applicant’s claim in his statement on 21 January 2022, speculating that things would have been different if his visa had not been cancelled, and rejects the repeated claim that he fears persecution as his main motive for not returning. The Tribunal is satisfied on all the available information that the applicant is at very low risk of being harmed on his return to Nepal now or in the foreseeable future and that he does not have a well-founded fear of persecution.
The Federal Court has commented that the use of the reasonably foreseeable future concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is intended where possible to preclude predictions of the future that are so far removed in point of time from the life of the applicant when returned to their home country as to bear insufficient connection to the reality of what that person may experience.[23]
[23] CPE15 v MIBP [2017] FCA 591 at [60].
Determining what is likely to occur in the future will require findings as to what has occurred in the past. Such findings provide a rational basis from which to assess whether an applicant’s fear of being persecuted for a Convention reason is well-founded. The extent to which past events can be a guide to the future was explained in Guo’s case. As the High Court observed:
Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability ‑ high or low ‑ of their recurrence.[24]
[24]MIEA v Guo (1997) 191 CLR 559 at [574].
Usually, therefore, in the process of determining the chance of something occurring in the future, conclusions will need to be formed concerning past events:
In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.[25]
[25]MIEA v Guo (1997) 191 CLR 559 at [575].
The Tribunal has examined the applicant’s account of past events as a guide to future outcomes. The Tribunal is satisfied those past events do not give rise to a probability or real chance of the recurrence of any harm to the applicant in the future as claimed.
On 7 January 2022, the applicant’s representative submitted in a letter to the Tribunal that the applicant fears significant harm in India. The submission went on to address whether the applicant would be safe if compelled to return to India. The submission states:
“There is no health care and social security system in India. The applicant will be deprived of basic human needs in India and would not be eligible for it just because he has the privilege to be in India.
The applicant will have no access to any funds for his livelihood. Nepali nationals who live in India are not eligible for ration in absence of the regularisation of his legal status.
The possibility of him being tracked by Madhesi Mukti Morcha is not far fetched because of the connection between Indian Political parties and Madhesi Mukti Morcha. The risk is constant because of open borders between two countries.
The applicant will face significant language problems as he has very limited knowledge of Hindi language but depending on the place where he will be forced to live may have different language barriers and this will affect his ability to subsist in India, even were it to be assumed that India is a safe third country.
Often, Nepali people suffer degrading and inhuman behaviour in India”
DFAT[26] notes the following in respect of relocation to India by Nepalis:
[26] DFAT, Country Information Report – Nepal, 1 March 2019
INTERNAL RELOCATION AND RELOCATION TO INDIA
5.17 The 2015 Constitution guarantees the freedom for Nepalis to move and reside in any part of Nepal. However, laws can be passed to curtail this freedom in the public interest or to maintain harmonious relations between castes, tribes, religions or communities.
5.18 Relocation is a common experience for Nepalis. Millions travel each year to other countries seeking employment and other opportunities and to seek economic opportunity. Over half of all Nepali households have at least one family member currently overseas as a migrant worker or living in Nepal as a returnee and therefore relocation is a normal, expected circumstance of life. The open border arrangement with India, as per the 1950 India-Nepal Treaty of Peace and Friendship, allows large numbers of Nepalis to travel to and from India each year or reside in India on a long-term basis. Large numbers of Nepalis also move within the country. The populations of major urban centres such as Kathmandu have increased substantially in recent decades. While Nepal is currently one of the least urbanised countries in the world, it has one of the world’s fastest rates of urbanisation, demonstrating significant internal movement.
5.19 Kathmandu in particular, but also other large urban centres such as Biratnagar and Pokhara, today reflect the significant ethnic, religious and caste diversity of Nepal and as such provide accessible opportunities for relocation within Nepal.
India-Nepal Treaty of Peace and Friendship: Rights of Nepalis in India
5.20 There is a long history of free and unregulated movement of people between India and Nepal. The Anglo-Nepal War of 1814 and the subsequent treaty of peace signed between the British East India Company and Nepal in 1816 resulted in the first delineation of the border. The British maintained an open border to facilitate the free movement of people and goods between the two countries and a number of colonial era agreements were made to this effect.
5.21 India and Nepal agreed their Treaty of Peace and Friendship in 1950 (the Treaty). At the time, the Treaty was intended to maintain the special ties between Nepal and India that had existed in the British colonial era. Nepal also had security concerns following the Communist Revolution in China in 1949.
5.22 Article 7 of the Treaty provides for each country ‘to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature’. The Treaty therefore provides for freedom of movement across borders between the two countries and equal rights in the participation in the economy and legal system. India has waived its right to reciprocity under the Treaty. Close collaboration between the two countries on foreign affairs and defence policy also occurs under the Treaty.
5.23 According to the Bureau of Immigration in the Indian Ministry of Home Affairs, Nepali citizens entering India by land do not require a passport or visa to enter India. Nepali citizens entering India directly by air do not require a passport or visa but are required to establish their Nepali citizenship through the production of a: Nepali passport; Nepali citizenship certificate; voter’s identification card issued by the Election Commission of Nepal; or photo identity document issued by a Nepali mission in India. Children below the age of 10 are not required to produce Nepali identity documents, however children aged 10 to 18 must do so but if the aforementioned documents are not available, may elect to produce a photo identity document issued by a school principal. Nepalis travelling to a third country from India would require a passport.
5.24 Large numbers of Nepalis travel to India every day. Many Nepalis enter India by air; there are regular daily flights between Kathmandu and major Indian cities. The land border between India and Nepal is long and readily accessible and many people cross it every day. Many people use formal border crossings, however these are not always staffed by immigration officers. The infrastructure at border crossings can be very poor; some border posts are little more than tents. Others simply walk across the large unguarded sections of the border and such undocumented border crossings are common. .
5.25 A large number of Nepalis live and work in both the formal and informal sectors in India, including a substantial community in New Delhi. It is impossible to calculate overall numbers because of the large and regular movement of Nepalis into India. Nepali citizens in India are not required to register their presence in India with the Government of India. According to the Foreigners Division in the Indian Ministry of Home Affairs, only those foreigners visiting India on long-term visas (this does not include Nepalis) are required to complete this formality with the Foreigners Regional Registration Office.
5.26 In order to participate formally in Indian society (e.g. gain formal employment, access formal health and education services, purchase property, etc) Nepalis must, like Indian citizens and other nationalities resident in India, obtain an identification card, known as a ‘PAN card’ (PAN stands for ‘Permanent Account Number’). This card, issued by the Indian Income Tax Department, acts as an informal type of identification, but also allows the card-holder to open a bank account, receive a salary and conduct high-value transactions such as asset sales. In order to obtain a PAN card, an applicant must provide: a completed application form; recent colour photographs of themselves; proof of identity and address; and payment of INR 107 (approximately AUD 2.20). It is not mandatory to have a PAN, however over 170 million have been issued notwithstanding that there are only approximately 30 million income tax-payers in India; this demonstrates the widespread use and accessibility of the PAN cards.
5.27 People travelling to India for formal employment often receive assistance from their employer in obtaining a PAN card before entering India, but PAN cards can also be applied for individually after entry into India. DFAT assesses that so long as Nepalis are able to produce the relevant information, they would be able to obtain a PAN in the same way as Indian citizens do.
5.28 Credible sources in India advised DFAT that, in practice, most Nepalis choose to remain in the informal sector and do not obtain formal identification documents, including the PAN card, while in India. While this limits the ability of these people to gain employment in the formal sector, buy property or open a bank account, DFAT observes that this makes their position no different to Indians who work in the informal sector who do not have a PAN.
5.29 Aadhaar is a 12 digit unique number issued by the Unique Identification Authority of India (UIDAI). Aadhaar, meaning ‘foundation’, is intended to serve as proof of identity rather than citizenship or nationality. While Aadhaar is not mandatory, it can be used to facilitate access to Government services and welfare. Increasingly, an Aadhaar is required to access services such as bank accounts, school enrolment, obtaining a SIM card and online transactions such as ride-sharing services. Holding an Aadhaar is not a guarantee of rights, benefits or entitlements.
5.30 To obtain an Aadhaar, a person must provide their name, date of birth or age, gender and address. A system of introducer-based enrolment also exists in the absence of valid proof of identity and address documentation. The introducer is appointed by a Registrar. The applicant must also submit to biometric collection in the form of ten fingerprints, an iris scan and a facial photograph. Aadhaar is not proof of citizenship or residence. Any person residing in India can obtain an Aadhaar card after 182 days of residence.

The Tribunal prefers the DFAT summary as to the likely outcomes for the applicant relocating to India, should he choose to do so, noting that there is no likelihood that he would be forcibly removed there, Nepal being his country of origin. The applicant himself in evidence was not aware of the concerns raised by the submission about his living in India, other than vaguely, but in any event informed the Tribunal he would not be returning either to Nepal or India in any circumstance, so it “is not an option” for him which he has seriously considered.
In light of the DFAT information the Tribunal is satisfied that Nepalis can travel freely across the Indian border, without a passport or visa. Large numbers do so on a daily basis, both to live and to work. Nor are they required to register their presence, and many remain to work in the informal sector, where they are virtually undiscoverable. There is no evidence the applicant would be at any greater risk than any other Nepali traveling to and living or working in India, either from MMM, or because of language barriers or for reason of the applicant being able to subsist. No evidence has been provided that MMM would have any interest in attempting to locate or pursue the applicant were he to relocate within Nepal or to India and the Tribunal rejects the applicant’s submissions that India would not be a safe country for him should he choose to relocate there.
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.
Alan McMurran
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 714

7 February 2022

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