1835393 (Refugee)

1835393 (Refugee) [2021] AATA 5115 (2 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1835393
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Rachel Da Costa
DATE:2 November 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 November 2021 at 12:09pm
CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – membership of student union – participation in rallies, protests and strikes – targeted and bashed by members of opposing unions – ethnicity – Chhettri – family members targeted and seriously harmed – mental health – credibility – delay in applying for protection – previous visa refusals and overstays – voluntary return – limited involvement in union activities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), 36(2)(a), (aa), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 November 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Nepal, applied for the visa on 7 June 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his protection visa application the applicant provided the following information. He was born on [date] in Bitranagar city, Morang province, Nepal. He can speak, read and write Nepali, English and Hindi. His religion is Hindu. In Nepal he has a father and brother. His mother lives in [Country 1]. From [birth] to January 1992 he lived in Bitranagar, Nepal. From January 1992 until the time he came to Australia in August 2007 he lived in [Neighbourhood 1], Kathmandu, Nepal. In 2005 and 2006 he lived in [City 1] and [City 2], India. He visited India many times as a child and an adult. He completed his primary schooling up to Year 8 in Bitranagar and then moved to Kathmandu in 1998 and attended secondary school and [University 1] in Kathmandu. He attended university from April 2004 to June 2007 but did not complete his Bachelor of [Subject 1]. In Australia, he studied [Subject 2] from September 2007 to July 2009.
In 2006 he applied for a student visa to travel to [Country 1] but his application was refused. He arrived in Australia in August 2007 as the holder of a student visa. He travelled on his Nepal passport issued [in] 2005. From [September] 2011 to [January] 2012 he was detained in [a] Correctional Centre due to a conviction for assault. He travelled back to Nepal and India from [February] 2012 to [August] 2012. His most recent arrival in Australia was [in] September 2012. He overstayed his visa from 2008 to 2011 and for 10 days in 2013. On 14 June 2013 his application for a student visa was refused. He has a new Nepal passport issued [in] 2015. In Australia he has worked in a [Workplace 1] and in [Workplaces 2]. He is in a de facto relationship with an Australian citizen and has a child with that person. He divorced his wife on 1 December 2013.
Evidence before the Department
Protection visa application
The applicant makes the following claims in his protection visa application form:
·     Before arriving in Australia he was studying a Bachelor of [Subject 1] at [University 1] in Kathmandu. He was an active member of the university student union. He participated in rallies and protests. The student union was against the Annisu-R. The Annisu-R consists of member of the student wings of the communist and Maoist parties. After his participation in rallies, protests and strikes in 2005 and 2006 he was targeted by opposition union members and Maoist party members.
·     During student rallies he was harmed by the Annisu-R party members. The party members bashed him and he was involved in physical fights with them.
·     He sought help from his union members after being harmed in fights. They helped him financially to purchase first aid and they also helped him financially when he moved to [City 2] and [City 1].
·     In 2005 and 2006 after he was targeted by opposition union members and Maoist party members he fled to the border with India. He also lived in [City 2] and [City 1].
·     He returned to Nepal in 2012 and applied for another visa to come to Australia. He could not safely return to his home area and remained in the capital until he travelled to Australia. He has not returned to Nepal since 2012.
·     When he returned to Nepal in 2012 he lived in Kathmandu because he could not return to his home area because he would be targeted and harmed.
·     In 2014 his mother sought asylum in [Country 1]. He has not contacted his father or brother since 2014. His relatives in Nepal have been tortured.
·     He will be targeted and harmed by the opposition union members and Maoist party members because of his involvement with student unions when he was a university student in Nepal.
·     There is a lot of political unrest and violence in Nepal. He will be at risk of harm if he returns to Nepal because of his involvement in student unions. He will be identified and harmed if he returns. The state authorities are unable to protect him.
In submissions from his lawyers to the Department dated 31 July 2017 he makes the following additional claims:
·     When he returned to Nepal in 2012 he lived in Kathmandu because it was unsafe to return to his home region in Terai due to violent attacks by Madhesi groups who are demanding land rights in the Terai region against ordinary Chhettris like the applicant and his family who have land rights.
·     He lived in [Neighbourhood 1], Kathmandu.
·     His relatives in Nepal are Chhettri and have been tortured by Madhesi groups.
·     If he is to return to his home region of Terai he will be in danger of being seriously harmed or killed by members of the Madhesi ethnic group on the basis of his Chhetri ethnicity and the fact that his family members have been targeted and seriously harmed by Madhesi in Terai.
·     Even if these factors do not result in violence or death, he fears that they will individually or cumulatively result in isolation, exclusion, poverty, destitution, and difficulty earning a living.
The submissions from his lawyers also include references to country information as follows:
·     extract from a Nepal Monitor report from 2017 which provides background on the role of student unions in Nepal.
·     information about some violent acts committed by Annisu-R in 2005, 2007 and 2013 sourced from an undated BBC Monitoring report and the US Department of State 2013 Country Report on Human Rights Practices – Nepal.
·     information about more general violence from Maoists since the end of the civil war in 2006 sourced from DFAT (undated and no reference provided), UK Home Office 2007 Operational Guidance Note: Nepal and US Department of State 2007 Country Report on Human Rights Practices – Nepal.
·     information about violence by Madhesi groups in the Tarai region due to their wish for more regional autonomy and dissatisfaction with Nepal’s new constitution and the potential for violence against other ethnic groups, sourced from a 2016 International Crisis Group Report and news articles from 2007, 2015 and 2017.
The submissions also refer to why, despite s 36(3) of the Act, it is not feasible for the applicant to relocate pursuant to the India Treaty of Peace and Friendship between India and Nepal.[1] The submissions also attach a document dated 11 July 2017 which purports to certify that the applicant was an ordinary member of the Nepal Students’ Union since 6 January 2004.
The interview
[1] Made 31 July 1950.
On 30 October 2018, the applicant attended an interview with the Department to discuss his protection visa application. In that interview the applicant reiterated his claims and responded to questions clarifying or adding detail to aspects of his written claims.
In the interview, the delegate explained to the applicant the qualification to the law relating to Australia’s protection obligations arising under ss 36(3) – (5A) whereby Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, a safe third country. The delegate put to the applicant that as a citizen of Nepal he had the right to enter and reside in India, pursuant to the terms of the Treaty of Peace and Friendship between India and Nepal[2] and discussed the implications of that with the applicant.
The delegate’s decision
[2] Made 31 July 1950.
In his decision dated 5 November 2018, the delegate did not accept the applicant’s claims about being a member of the university student union in Nepal or that he had been attacked on account of his political opinion. The delegate was also not satisfied by the applicant’s explanations for his delay in seeking protection. The delegate did not accept that the applicant departed Nepal because he feared harm for any reason under s 5J(1) of the Act or that he has a real chance of persecution for any reason on return to Nepal.
The delegate found that under s 36(3) the applicant has the right to enter and reside in India and has not taken all possible steps to avail himself of that right. The qualifications in ss 36(4) – (5A) do not apply. On that basis, the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The review application
On 3 December 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a copy of the delegate’s decision to the Tribunal.
The hearing
The Tribunal exercised its discretion to hold the hearing by video using the Microsoft Teams platform with the agreement of the applicant. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.
On 16 October 2021, the applicant appeared before the Tribunal via video to give evidence and present arguments. The applicant advised the Tribunal that he spoke English and did not need the assistance of an interpreter. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
On 29 September 2021, the applicant submitted a Response to hearing invitation form and indicated that the person who is the mother of his child (and ex-de facto partner) would give evidence at his hearing. The form indicated this evidence would be about why it is important for the applicant’s child that the applicant stays in Australia. On the day of the hearing, the applicant informed the Tribunal that this person was not willing to give evidence in the hearing. The Tribunal discussed this with the applicant and indicated that in the Tribunal’s view, evidence from his ex-partner about why he needed to stay in Australia for the benefit of his child would not be relevant to the Tribunal’s decision about whether he met the criteria for a protection visa. On 18 October 2021, after the hearing was held, this person sent an email to the Tribunal confirming that she did not wish to be involved in the applicant’s application for review.
Nationality
The applicant claims to be a citizen of Nepal and provided to the Department a copy of his Nepalese passport issued [in] 2015. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Nepal. The Tribunal finds Nepal is his receiving country for the purpose of assessing his claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant gave evidence that he filled out his protection visa application form himself. He said he had the assistance of a migration agent at that time but he completed the form. He confirmed that the information it contains is true and correct and there were no changes or mistakes he wished to point out.
During the hearing, the Tribunal discussed with the applicant his family, education, employment, where he lived in Nepal, his migration history, the problems he had experienced in Nepal and why he fears returning to Nepal. The Tribunal found there were various discrepancies in the applicant’s evidence and as a result, it has concerns about the truthfulness of aspects of the applicant’s evidence and overall did not find him to be a credible witness.
Further, during the hearing the applicant admitted that various aspects of his claims for protection that he made in his protection visa application and in his interview with the delegate were not true. He gave evidence that after he found out from his migration agent in 2009 that his visa had ceased he started on a path of self-destructive behaviour where he drank too much alcohol, gambled and had affairs with women. He said the reason for this was that he felt depressed about the mistake that happened with his visa and the way things had gone wrong for him. He said when he filed his protection visa application and attended the interview with the delegate he was still feeling depressed and drinking alcohol and doesn’t remember everything he said. He explained that he has got rid of the bad things in his life and has changed his behaviour in the last year and a half. He has not sought medical treatment for his depression or other behaviour. His personal belief is that if the problem comes from him then the solution does too and he does meditation and self-care. The applicant provided no medical evidence in support of his claim to be suffering from depression and, as mentioned above, gave evidence that he has not sought medical treatment for his claimed condition. The Tribunal does not accept that the applicant is suffering from a mental illness or that his claimed mental illness accounts for the discrepancies in his evidence.
The Tribunal’s reasons will deal first with the applicant’s admissions made in the Tribunal hearing and then deal with the applicant’s remaining claims.
First, in the Tribunal hearing the applicant admitted that when he came to Australia in 2007 he came to study and not to seek protection.
In the applicant’s protection visa application he claims that he left Nepal because he had been actively involved in the university student union and as a result, he had been targeted by opposition union members and Maoist party members. He claimed that he feared for his safety. In the interview with the delegate he claims that he had been a very active member of the union and was involved in fights and that he had enemies all over.
In the Tribunal hearing, the applicant was asked why he came to Australia in 2007 and he explained that he thought coming overseas sounded like a good opportunity because there were not many opportunities in Nepal. Many of his friends were doing the same thing so he thought it might be a good time for a change for him too. He had been studying but not doing very well because he spent lots of time hanging around with his friends. The Tribunal asked the applicant whether there were any other reasons that he came to Australia and he said no. Later in the hearing he stated that seeking protection was not his intention when he came to Australia and that his intention was to study. The Tribunal accepts this evidence.
Secondly, the applicant admitted that nobody in his family had been seriously harmed due to ethnic tensions in the Terai region of Nepal.
In his protection visa application form, the applicant claims that when he returned to Nepal in 2012 he could not safely return to his home area and that he remained in the capital until he travelled to Australia. He claims that his relatives in Nepal have been tortured. He also claims that when he returned to Nepal in 2012 he lived in Kathmandu because he could not return to his home area because he would be targeted and harmed.

In the written submissions from his lawyers, he claims that when he returned to Nepal in 2012 he lived in Kathmandu because it was unsafe to return to his home region in Terai due to violent attacks by Madhesi groups who are demanding land rights in the Terai region against ordinary Chhettris like the applicant and his family who have land rights. He claims his relatives have been tortured by Madhesi groups. He claims that if he is to return to his home region of Terai he will be in danger of being seriously harmed or killed by members of the Madhesi ethnic group on the basis of his Chhetri ethnicity and the fact that his family members have been targeted and seriously harmed by Madhesi in Terai. Even if these factors do not result in violence or death, he fears that they will individually or cumulatively result in isolation, exclusion, poverty, destitution, and difficulty earning a living. The applicant did not mention these claims in the interview with the delegate.
In the Tribunal hearing, the applicant did not raise these claims either. He gave evidence that when he went back to Nepal in 2012 he only stayed for two weeks in Kathmandu and then he went back to his family home in Bitranagar and spent the rest of the time there before he returned to Australia. The Tribunal put to the applicant the inconsistency between the evidence in his protection visa application about where he stayed during this visit and his evidence to the Tribunal about where he stayed during the visit. He responded that he doesn’t remember what he said back then but he regarded Bitranagar as his home because it is where he grew up and Kathmandu has never been his home. He spent most of his time in Bitranagar on that visit in 2012.
The Tribunal asked the applicant about his claims that his family had been targeted and seriously harmed in the region of Terai due to ethnic unrest and reminded him of his claims in his protection visa application. The applicant responded that he didn’t think he said that. He said that a long time ago before he came to Australia in 2007 there was some unrest and problems on the family’s farmland with Maoists asking for tax money, but he said the issue was resolved and as far as he knows nobody was harmed. He said he had heard of other people being harmed in the past but no one in his family has been harmed. The Tribunal accepts this evidence.
In relation to the applicant’s family, in the Tribunal hearing the applicant gave evidence that his mother has lived in [Country 1] for the last 6 or 7 years and that he speaks to her sometimes, but he provided no further detail and did not mention that she had sought asylum there. The Tribunal considers that nothing follows from this in terms of the applicant’s claims and notes the applicant’s evidence, which the Tribunal accepts, that no one in his family has been harmed. He also gave evidence that he is back in touch with his father and brother. The Tribunal accepts this evidence.
Thirdly, in the Tribunal hearing the applicant admitted that he applied for a protection visa because he has tried other ways to stay in Australia which have not worked, he has lived here for so long and has an attachment here with his child and doesn’t want to leave him.
The applicant has a long and complicated history of visa applications. Since arriving in Australia in 2007 and his student visa ceasing in October 2009, he has applied unsuccessfully for a further student visa, two partner visas and Ministerial intervention as well as remaining in Australia for two periods without a valid visa. He admitted that he knowingly stayed in Australia without a visa for over two years once he found out in 2009 that his first visa had ceased. He stayed because he had a student loan he had to repay and he needed to earn money. He says he was shocked to find his visa had ceased and that event negatively impacted the rest of his time in Australia because he doesn’t understand why it happened and why things had gone wrong for him. He also admitted he was without a visa for 10 days in 2013 because he made a mistake with timing in applying to the Department. He gave evidence that since 2012 he always had help from a migration agent until the time of his interview with the Department for his protection visa.
The Tribunal put to the applicant its concern about his lengthy delay in applying for protection when he had many opportunities to do so. The Tribunal put to the applicant that his delay and the fact he applied for several other types of visas first suggests he does not fear returning to Nepal for the reasons he claims and that his claims are not genuine and that he does not genuinely fear returning to Nepal. The Tribunal said it might find that what the applicant really wants is a migration outcome that allows him to remain in Australia.
As discussed above, the applicant agreed that when he first came to Australia he came to study and he did not intend to apply for protection. He gave evidence that things went wrong for him after his visa ceased and then he behaved in ways he shouldn’t have and now he has been in Australia for so long and has an attachment here with his child. He applied for protection because he tried everything else. He didn’t want to apply but he says there is still a small risk for him if he goes back to Nepal because of his student union activities.
In the Tribunal’s view, these three admissions by the applicant set out above undermine his credibility and raise significant doubts about whether his claims about what happened to him in Nepal and why he fears returning there are genuine. However, the applicant maintains his claim that he was involved with the university student union in Nepal and that his involvement back then means he faces a risk of harm if he returns to Nepal in the reasonably foreseeable future. This claim is considered below.
The applicant’s activities in Nepal
In his protection visa application, the applicant claims that while he was studying at [University 1] in Kathmandu he was an active member of the university student union. He participated in rallies and protests. The student union was against the Annisu-R, which consists of members of the student wings of the communist and Maoist parties. He claims that after his participation in rallies, protests and strikes in 2005 and 2006 he was targeted by opposition union members and Maoist party members. He claims that the party members bashed him and he was involved in physical fights with them. He claims that he sought help from his union members after being harmed in fights and they helped him financially to purchase first aid and when he moved to [City 2] and [City 1].
In his interview with the delegate, the applicant stated that while he was studying at university from 2005 to 2007 he was a very active member of the student union and they were always fighting and he had enemies all over. He said he was an ordinary member. If there were any problems with the opposition he would get involved and he fought and he harmed some of them in the past.
In the Tribunal hearing, the applicant gave evidence that during the three years he was at university he was part of a group of about 20 to 25 friends who were political. He used to spend a lot of time at the university with these people. Kathmandu is not very big and where he lived with his family was not very far from the university. He gave evidence that he was not political and he was not interested in politics and he was part of the group because they were his friends; not because of politics. He said that whatever his friends did, he just joined in. This group was connected to the Nepal Student Union which is affiliated with the Nepal Congress Party. They used to attend rallies sometimes and do fundraising activities. He doesn’t know what the rallies were about and he wasn’t really interested. The group was well-known within the university. If there was something political going on at the university then the group would be consulted. He was not a leader.
He gave evidence that there were maybe five incidents over the years where the group was involved in fights against rivals who were affiliated with the communist side, known as the Annisu-R. The applicant gave evidence he was present at these incidents and fought sometimes but he was never injured and he never injured anyone. There was an incident in late 2006 where the group was involved in negotiations with someone more senior in the Congress Party (with which they were affiliated) and there was a fight and that person was seriously injured. The applicant says he was there when it happened. After that incident, the group scattered and the applicant travelled to [City 1] and [City 2] in India for a couple of months. His accommodation was paid for by some of the funds his group had fundraised. He returned to Kathmandu in early 2007 and in August 2007 he came to Australia. He didn’t do anything in the time between returning from India and coming to Australia and nothing happened to him. Since coming to Australia he hasn’t stayed in contact with people from back then.
The Tribunal put to the applicant its concern about discrepancies in aspects of his claims in his protection visa application, in his interview with the delegate and the evidence he gave to the Tribunal, particularly relating to his level of involvement with the group and whether he was ever targeted or harmed by the opposition group or whether he ever harmed anyone else. The applicant responded that it has been a long time since the interview and he doesn’t remember exactly what he said. He was in a rush and depressed, but whatever he said today is true. There were some fights and he was involved but nothing really serious.
The Tribunal also put to the applicant that the incidents he claims are the reason he fears returning to Nepal happened a long time ago and it doubted he would still be a person of interest to the Annisu-R people or the Maoists now. The applicant responded that it has been a long time and he is not scared but it is always at the back of his mind. His concern is around the university area, not to a great extent but he can’t say what would happen.
The discrepancies in the applicant’s evidence about the extent and nature of his involvement in activities of the Nepal Student Union, whether he was ever targeted or harmed by the opposition group, whether he ever harmed anyone else and what happened to him during that time raises concerns for the Tribunal about the truthfulness of his evidence and the genuineness of his claims.
The Tribunal discussed with the applicant the document dated 11 July 2017 which he provided to the Department as evidence in support of his claimed membership of the Nepal Student Union. The Tribunal put to the applicant that country information indicates fraudulent documents are relatively easy to obtain in Nepal[3] and the fact that the document was created so long after the claimed events raises concerns for the Tribunal about its authenticity. The applicant said he had nothing to say in response. The Tribunal does not accept this document as genuine.
[3] DFAT Country Information Report Nepal 1 March 2019, 5.45
The Tribunal is prepared to accept that while the applicant was at university he was part of a group of friends that was associated with the Nepal Student Union. The Tribunal accepts the applicant’s evidence that he was not interested in politics and was part of the group because the people were his friends. The Tribunal is prepared to accept that the applicant was involved in some minor fights but finds that the applicant never injured anyone or was injured himself. The Tribunal finds that his involvement in the group was limited and he was not targeted or harmed by the opposition group. The Tribunal is prepared to accept the applicant spent time in [City 1] and [City 2] and that his group of friends paid for his accommodation. The Tribunal accepts the applicant’s evidence that nothing really serious happened during this time and that he is not scared. The Tribunal’s findings about his limited involvement in the group and its activities are reinforced by the applicant’s evidence in the Tribunal hearing that he did not come to Australia to seek protection, that is, he did not leave Nepal due to a fear of harm arising from claimed events, but rather to study.
In light of the applicant’s admissions during the hearing and the Tribunal’s concerns about the truthfulness of his evidence, having considered all of the applicant’s claims and evidence, the Tribunal finds as follows.
The Tribunal accepts that the applicant was born in Bitranagar, Nepal and that he moved to Kathmandu in around 1998, which is where he lived until he came to Australia in 2007. The Tribunal accepts that he has a father and brother who live in Nepal and that his mother lives in [Country 1]. The Tribunal accepts that he attended [University 1] in Kathmandu between 2005 and 2007. The Tribunal accepts that while he was at university he was part of a group of friends that was affiliated with the Nepal Student Union. The Tribunal accepts that the applicant occasionally attended rallies but he did not know what they were about. The Tribunal accepts that the applicant was not interested in or knowledgeable about politics. The Tribunal accepts that the group was involved in a small number of fights and finds that the applicant was never targeted or injured and that he never injured anyone. The Tribunal finds that the applicant’s involvement in the group was low. The Tribunal accepts that the applicant spent time in [City 1] and [City 2] and that his group paid for his accommodation. The Tribunal accepts that the applicant came to Australia to study and not to seek protection. The Tribunal finds that when the applicant returned to Nepal in 2012 he stayed for a short time in Kathmandu and then stayed in Bitranagar until he returned to Australia. The Tribunal accepts that the applicant’s family are of Chhettri ethnicity and finds they were not harmed or tortured by Madhesi groups in the Terai region or by anyone else.
The Tribunal does not accept that the applicant left Nepal because he was an active member of the Nepal Student Union. The Tribunal does not accept that after the applicant’s participation in rallies, protests and strikes in 2005 and 2006 he was targeted by opposition union members and Maoist party members. The Tribunal does not accept that during student rallies he was harmed by the Annisu-R party members or that the party members bashed him. The Tribunal does not accept that he sought help from his union members after being harmed in fights or that they helped him financially to purchase first aid. The Tribunal does not accept that in 2005 and 2006 after the applicant was targeted by opposition union members and Maoist party members he fled to the border with India. The Tribunal does not accept that when the applicant returned to Nepal in 2012 he lived in Kathmandu because he could not return to his home area because he would be targeted and harmed by Madhesi groups or for any other reason. The Tribunal does not accept that the applicant could not safely return to his home area and remained in the capital until he travelled to Australia. The Tribunal does not accept that the applicant’s family members have been targeted and seriously harmed or tortured by Madhesi groups or that members of his family have been harmed by anyone else. The Tribunal does not accept that the applicant left Nepal due to his involvement in the Nepal Student Union or that he fears returning to Nepal for the reasons claimed.
Does the applicant meet the refugee criterion?
In his protection visa application form, the applicant claims that there is a lot of political unrest and violence in Nepal and he will be at risk of harm by the opposition union members and Maoist party members if he returns to Nepal because of his involvement in student unions. In his interview with the delegate, the applicant claimed that because of his involvement in the student union in Nepal, opposition student union members will harm him. In the Tribunal hearing, the applicant claimed that he worries he will be harmed because of the fighting incidents he was involved in with his group. If people he fought with in the past see him they will know him and remember his face and they might get violent.
The Tribunal has found that before he left Nepal in 2007 the applicant was friends with a group of people who were affiliated with the Nepal Student Union and who were involved in a small number of fights while the applicant was part of the group. The Tribunal has considered the country information provided by the applicant about the role of student unions in Nepal and violent acts committed by Annisu-R in the past, however this information does not affect the Tribunal’s findings about whether the applicant faces a real chance of serious harm if he returns to Nepal in the reasonably foreseeable future. In light of the fact that the applicant was last involved with his group of friends 14 years ago, his evidence that he has not maintained contact with those people, his evidence that he was never harmed and he never harmed anyone else during any fights, his evidence that he was not a leader and was not interested in politics, the Tribunal’s finding that his level of involvement in the group was low, the applicant’s evidence that he did not leave Nepal to seek protection and that he is not scared, the Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances.
In his protection visa application, the applicant also claims that if he is to return to his home region of Terai he will be in danger of being seriously harmed or killed by members of the Madhesi ethnic group on the basis of his Chhettri ethnicity and the fact that his family members have been targeted and seriously harmed by Madhesi in Terai. In accordance with the applicant’s evidence in the Tribunal hearing, the Tribunal has found that the applicant’s family were not targeted or seriously harmed by Madhesi groups in the Terai region. The applicant’s evidence is that in 2012 when he returned to Nepal he spent most of the time in Bitranagar, which is in the Terai region, by choice. He did not claim that he felt unsafe or was harmed.
As discussed with the applicant at the hearing, the Tribunal has considered the country information provided by him in relation to the Madhesi protests in the Terai region. The Tribunal considers the information from an article in 2007 about Madhesi protests to be out of date and does not accept it as relevant to the Tribunal’s assessment of the circumstances of the applicant if he returned to Nepal in the reasonably foreseeable future. The Tribunal has considered the information provided that relates to Madhesi protests and violence in 2015. However, the Tribunal has more recent country information which reports that while the situation is still developing politically through negotiations, it is not associated with ongoing ethnic violence in the area.[4] The Tribunal prefers and accepts this information as more up to date. The Tribunal notes the information provided by the applicant about clashes between Madhesi protesters and police in the context of the 2017 elections in Nepal however, in the Tribunal’s view, this information does not relate to violence directed at another ethnic group but rather at the police. It also does not indicate that the violence is ongoing. The Tribunal asked the applicant where he would live if he returned to Nepal and he said he had not thought about it. He has lived in Australia for a long time. He does not want to live in the capital but he does not like the farm. The applicant’s evidence is that his relatives who brought him up and who he lived with before coming to Australia, all live in Kathmandu. On this basis, the Tribunal finds that if the applicant returned to Nepal in the reasonably foreseeable future he would live in Kathmandu. For these reasons, the Tribunal finds the applicant does not face a real chance of serious harm arising from these circumstances.
[4] DFAT Country Information Report Nepal 1 March 2019, 2.42; An Identity Crisis in Nepal | JIA SIPA (columbia.edu) 6 February 2016; Protest and Police Crackdown in the Terai Region of Nepal | HRW, 16 October 2015

The Tribunal has considered whether the applicant would be involved in politics if he returned to Nepal in the reasonably foreseeable future. When asked about this, the applicant gave evidence that since coming to Australia he has not maintained contact with people from back then. If he returned to Nepal he can’t say whether he would be involved in politics but he is not a political person and it doesn’t interest him. On this basis, the Tribunal finds that the applicant would not be involved in politics and that he does not face a real chance of serious harm arising from these circumstances.
The Tribunal has also considered whether the applicant would be perceived to have a political affiliation with the Nepal Student Union if he returned to Nepal in the reasonably foreseeable future. Given the applicant was last involved with this group 14 years ago, his evidence that he has not maintained contact with those people, his evidence that he was not a leader and was not interested in politics, his evidence that he never injured anyone and was never injured himself, the Tribunal’s finding that his level of involvement was low and the Tribunal’s finding that he would not be involved in politics if he returned to Nepal, the Tribunal finds that the applicant would not be perceived to have a political affiliation with the Nepal Student Union and that he does not face a real chance of serious harm arising from these circumstances.
The Tribunal has considered the applicant’s more general claim that there is a lot of political unrest and violence in Nepal. As discussed with the applicant during the hearing, the country information provided by him about this dates back to 2007 and the Tribunal does not accept it as relevant to the Tribunal’s assessment of the circumstances of the applicant if he returned to Nepal in the reasonably foreseeable future. More recent country information indicates that the security situation in Nepal has improved significantly since the end of the conflict with the Maoists and the chance of a return to widespread violence is low.[5] The Tribunal prefers and accepts this information as more up to date. As discussed with the applicant, country information indicates that Maoists have the potential to control the national agenda without resorting to violence and political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants.[6] The applicant responded that right now that is the case but he can’t tell what will happen in the future. On the basis of the country information and the Tribunal’s findings that the applicant would not be involved in politics if he returned to Nepal in the reasonably foreseeable future, the Tribunal finds the applicant does not face a real chance of serious harm arising from these circumstances.
[5] DFAT Country Information Report Nepal 1 March 2019, 2.41, 3.41
[6] DFAT Country Information Report Nepal 1 March 2019, 3.45
The Tribunal has also considered the applicant’s claim that in the past, sometime before he came to Australia in 2007, there was some unrest on his family’s farmland with Maoists asking for tax money. Based on the country information referred to above which indicates that the security situation in Nepal has improved significantly since the end of the conflict with the Maoists and the chance of a return to widespread violence is low,[7] the fact that these claimed events happened more than 14 years ago, the applicant’s evidence that the issue was resolved and nobody in his family was harmed and the fact that the applicant did not claim that anyone in his family has experienced problems since that time, the Tribunal finds the applicant does not face a real chance of serious harm arising from these circumstances.
[7] DFAT Country Information Report Nepal 1 March 2019, 2.41, 3.41
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Nepal now or in the foreseeable future that he faces a real chance of serious harm from opposition student union groups or Maoists, or for his past involvement with the Nepal Student Union, or for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[8] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm from opposition student union groups or Maoists, or for his past involvement with the Nepal Student Union, or for any other reason. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[8] MIAC v SZQRB [2013] FCAFC 33
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 5115

2 November 2021

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction