1835472 (Refugee)

1835472 (Refugee) [2023] AATA 3196 (30 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Raju KC (MARN 1799073)
CASE NUMBER:  1835472
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Peter Papadopoulos
DATE:30 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 June 2023 at 4:16pm
CATCHWORDS
REFUGEE – protection visa – Nepal – fear of harm from step-mother after dispute with father about family land – father appropriated land inherited by applicant from grandfather, without paying promised amount – step-mother’s threats and political and criminal connections – credibility – vague, inconsistent and exaggerated claims and evidence, and no supporting evidence provided – no legal action taken against father – delay in applying for protection – applied after student visa refused, tribunal review and request for ministerial intervention – no threats claimed in student visa review – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
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

The applicant is a [Age]-year-old male who claims to be a national of Nepal.
The applicant arrived in Australia [in] April 2009 as the holder of a Vocational Education and Training Sector (subclass TU-572) visa. He was granted a Higher Education Sector (subclass TU-573) visa on 23 June 2011 and departed Australia [in] October 2012. He returned to Australia [in] December 2012 and has not departed since that date.
On 31 May 2016, he applied for a Subclass 866 Protection (Class XA) visa (protection visa). On 7 June 2016, the Department notified the applicant that his application for a protection visa was invalid. On 30 June 2016, the applicant lodged a valid application for a protection visa.
On 12 November 2018, the delegate of the Minister for Home Affairs made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations.
This is an application for review of the delegate’s decision.
CLAIMS AND EVIDENCE
Claims and evidence provided to the Department
Protection visa application
According to information contained in his protection visa application, the applicant is a [Age]-year-old Nepalese national who was born in Bharatpur, Chitwan in Nepal. Based upon information in the protection visa application form that was completed by the applicant on 29 June 2016, the applicant:
·     is ethnically Brahmin and is Hindu.
·     can speak, read and write in Nepali, Hindi and English.
·     has the following family members in Nepal:
o   Two uncles, [Mr A] (born [Date]) and [Mr B] (born [Date]), and
o   One cousin, [Mr C] (born [Date]).
·     has two personal contacts in Australia, his friend [Mr D] (born [Date]) and his cousin, [Mr E] (born [Date]).
·     states that after first arriving in Australia [in] April 2009, he returned to Nepal [in] October 2012 to visit his grandfather ‘at his last stage’.
·     last resided in Nepal at [Address], Bharatpur, Chitwan.
·     has worked as [Job tasks] in Australia.
·     has completed the following studies:
o   in Nepal:
§ Primary, Middle and High School at [School] in Chitwan between [Year] and [Year]; and
§ [Subject 1] at [educational institution] in Chitwan between [Year] and [Year].
o   in Australia:
§ Diploma of [Subject 2] at [College 1] Australia between April 2009 and June 2013; and
§ Certificate IV in [Subject 3] at [College 2] between January 2014 and July 2014.
In relation to his claims for protection, the applicant provided the following information in his application form signed on 29 June 2016:
·     He came to Australia to study and work. He believes things in Nepal have changed since he arrived in Australia and if he returns he might be at risk of losing his life.
·     His father lied to him – he took the applicant’s property and put it in his own name. The applicant says that his father promised to pay him back for the land but it has been two years now. The applicant added that his father’s wife, his step-mother, believes that if the applicant returns, he will try to re-claim the property and his father’s property as well. The applicant believes she is planning to ‘get me out of the way’.
·     He has been receiving ‘terrible calls’ from unknown persons in the middle of the night. He had to change his phone number.
·     His step-mother is involved in politics in Nepal. He believes his step-mother would cause him harm. He said she is making arrangements and plans.
·     The applicant believes that in order to seek assistance from Nepalese authorities, he needs to return to Nepal first. He added that no-one is aware of the threatening phone calls he has received. But he is fearful that if he does, he cannot guarantee what will happen if his step-mother finds him first. He believes she will be able to resolve a case should anything happen.
·     He believes he would be homeless if he returns to Nepal and that a lot has changed in the five years since he has been in Australia. He added that when he feels that things are getting better in Nepal, he will leave Australia.
Supporting documents
The applicant lodged the following documents with the Department in support of his protection visa application claims:
·     Department form 866B, ‘Persons included in this application and family composition’, completed on 29 June 2016, and received by the Department on 30 June 2016.
·     Department form 866C, ‘Personal details for each person included in this application’, completed on 29 June 2016, and received by the Department on 30 June 2016.
·     A Nepalese passport (reference [Number]) issued to the applicant [in] 2015, and which is due to expire [in] 2025.
Protection visa application interview
The applicant attended an interview with the Department in connection with his protection visa application on 9 November 2018. The interview was conducted with the assistance of an interpreter in the Nepali and English languages.
The Tribunal has listened to a copy of the recording of the protection visa application interview and refers to it, where relevant, in the findings and reasons below. However, for the sake of clarity and thoroughness of the claims presented to the Department, the following additional evidence was provided by the applicant during the protection visa application interview:
·     The applicant’s mother passed away when he was [Age] years old. He is unsure of the exact year, as he did not use the English calendar in Nepal. He said his father remarried two years after his mother passed away, before he came to Australia.
·     His grandfather paid for his studies and his trip to Australia.
·     With respect to the threatening phone calls, he said that his step-mother told him that she and his father have the property in Nepal, he has nothing, and questioned him as to why he would return to Nepal. He said that she had told him she would ‘see him’ if he returned to Nepal. He added that he has received other calls where people would laugh at him on the phone. The applicant said these phone calls happened two years previously (around the time of the application) but have not continued since he changed his phone number.
·     He says he cannot travel to India under the Treaty between Nepal and India because he has no money and no support network there. He said that he has a support network in Australia.
·     He explained that he was unable to finish his [Subject 2] studies in Australia because he hurt his back. He said he was unable to attend school or work for three months during this time.
Summary of the delegate’s decision
The delegate’s reasoning in support of their decision to refuse the application is summarised as follows:
·     The delegate accepted the applicant’s identity as claimed.
·     The delegate found the applicant had the right to enter and reside in India and that the applicant would not be prevented from entering or residing India. The delegate further found that the applicant had not taken all possible steps to avail himself of the right to enter and reside in India and, therefore concluded that s36(3) of the Act applied.
·     The delegate considered ss 36(4)-(5A) of the Act. The delegate found the applicant did not have a well-founded fear of persecution and that there were not substantial reasons for believing the applicant to be at a real risk of suffering significant harm in either India or Nepal.
·     The delegate concluded that the applicant has statutory effective protection in a third country, and is therefore, not owed protection obligations by Australia.
Claims and evidence provided to 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 was represented in relation to this review by a migration agent, namely Mr Raju KC (MARN 1799073) (the representative).
Pre-hearing submissions and evidence
The Tribunal has not received any pre-hearing submissions or evidence.
The hearing: supporting documents and oral evidence
The applicant appeared before the Tribunal on 14 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The representative did not attend the hearing.
Post-hearing submissions and evidence
The Tribunal has not received any post-hearing submissions or evidence.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality: Country of reference/receiving country
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 accepts that Nepal is his receiving country for the purpose of assessing his claims for protection.
Credibility
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an 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.[1] 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.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or for the reason claimed. Likewise, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] 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 that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[4]
[3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 91, Prasad v MIEA (1985) 6 FCR 155 at 169–170
[4] Sun v MIBP [2016] FCAFC 52 at [69]
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and evaluating the applicant’s evidence.
In the present case, the Tribunal takes into account the applicant’s evident lack of familiarity with the Tribunal setting and his limited English language proficiency. With this in mind, the Tribunal asked straightforward questions during the hearing, and paraphrased and checked the applicant’s responses where necessary.
The Tribunal does not consider things like minor changes in dates, minor details omitted from claims in the written application, or minor mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility. However, when the evidence set out here, some of it on critical matters, is considered cumulatively the Tribunal finds that these minor errors, inconsistencies and omissions together take on more significance and so have been given weight.
Analysis, reasons and findings
The issue in this case is whether the applicant is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection. A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in the Attachment.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant gave evidence to the Tribunal that he filled out his protection visa application form himself. He confirmed that there were no mistakes he wished to point out in his application. The Tribunal drew to his attention that two application forms appeared on his Department file. He confirmed that the form signed on 31 May 2016 was part of an invalid protection visa application and the form signed on 29 June 2016 was part of a valid protection visa application. The Tribunal observed that the information he provided in the forms was generally consistent and would all be taken into account in the consideration of his claims. The applicant understood and agreed with this approach.
During the hearing, the Tribunal discussed with the applicant his family, employment, education, migration and visa history, and why he fears returning to Nepal.
The Tribunal has formed the impression that the applicant’s protection claims drew on incidents and experiences that he had, but that he tended to exaggerate and misconstrue the consequences of these, with a view to bolstering his claims for protection. It is also concerned that the applicant has fabricated or embellished a number of his protection claims. Further, the applicant provided no corroborative evidence in support of his claims which, in the particular circumstances of his case, concerns the Tribunal. In reaching this view, the Tribunal has also had regard to a range of concerns in relation to key aspects of the evidence before the Tribunal, as well as other reasons detailed below. Overall, the Tribunal did not find the applicant to be a credible witness.
The Tribunal’s concerns are set out below.
First, the Tribunal considers the applicant’s evidence about the nature of the threats he received by way of telephone calls from his step-mother, and other unknown persons he suspects were doing the bidding of his step-mother, to be vague and lacking in meaningful detail. Further, much of the detail the applicant provided in the Tribunal hearing about these claimed threats was in response to questioning by the Tribunal rather than being offered by him.
In the written material before the Department, the applicant indicated that his step-mother spoke to him over the telephone and suggested she would try to kill him. He also received ‘terrible calls’ from unknown persons but did not provide any information about what was said to him during those telephone calls.
At interview with the delegate, he was asked to explain what threats he had received. He stated that he had received threatening telephone calls from his step-mother and other persons unknown to him. His step-mother did not say she would kill him. Instead, because she is a politically connected woman in Nepal, felt threatened when she said: ‘If you come, I will see you’. The calls from unknown persons involved people laughing at him over the phone.
At hearing, he explained that he received seven or eight telephone calls over the Viber telecommunications platform from his step-mother during a period of two months in 2014 or 2015. Asked what threats she made during these calls, he said that his step-mother told him that she would get others to kill him if he returned to Nepal. She told him that she would arrange for someone to kill him, which would be easy for her to do because she can avoid police investigation and prosecution because she is politically connected and influential in Nepal. He suspected that she would ask her brother to kill him because he had a criminal background.
The Tribunal raised its concern with the applicant that it found aspects of his oral evidence to be vague and lacking in detail, which suggested that he was not speaking from personal experience, and that he had fabricated or at least embellished his evidence about nature of the threats he had received. The applicant accepted the Tribunal had concerns about his evidence but did not offer anything further in terms of detail that could persuade it that these telephone calls involved nothing other than empty threats that are, regrettably, sometimes made within the context of disputes between family members.
Secondly, the Tribunal considers the applicant’s evidence about the threats he received by way of telephone calls from his step-mother, and other unknown persons he suspects were doing her bidding, have been fabricated, or at the very least embellished, in an effort to bolster his claims.
Utilising s 424AA, the Tribunal put to the applicant aspects of his oral evidence before the Migration Review Tribunal (MRT) on 15 April 2015 as part of a review of another delegate’s decision to refuse to grant a student visa to him. That visa had been refused because the delegate was not satisfied he was a genuine student. The Tribunal drew the applicant’s attention to his detailed oral evidence at the MRT hearing about his family circumstances in Nepal in which he explained that his grandfather died in October 2012. The Tribunal observed that when asked during the MRT hearing why he did not want to return to Nepal, he said: ‘The land given to me by my grandfather, I was planning to sell that and live off that but after that it is now gone I do not have any hope.’ The Tribunal also observed that when asked during the MRT hearing whether he had anything else to support his case, he said: ‘I don’t want to return because I have no place to live at the moment.’ The Tribunal put to the applicant that he did not give any evidence to the MRT about having received threats from his step-mother, or her agents, even though he had been specifically asked during the MRT hearing why he could not return to Nepal. The Tribunal suggested that this significant omission might suggest that he had fabricated the claims about being threatened, thereby leading the Tribunal to find that his claims are untruthful.

By way of response, the applicant suggested that he did not give evidence about the threats to the MRT because it was a review application about a student visa in which the Member asked him questions about his health and employment in Australia rather than detailed questions about his circumstances in Nepal that were now being put to him. The Tribunal has considered this response but finds it inadequate in terms of overcoming its concern. The applicant was given ample opportunity, as well as prompting by the Member, during the MRT hearing on 15 April 2015 to discuss his circumstances in Nepal. During the MRT hearing, the applicant volunteered to provide information about the land which had been taken from him, the dispute between him and his father over that land, and yet made no reference to the threats he received which he now claims are the reason why he does not want to return to Nepal. This stark omission is difficult to ignore given that the claimed threats would have been at the forefront of the applicant’s mind as they occurred not long before the MRT hearing on 15 April 2015.
The Tribunal’s concerns about the applicant’s evidence relating to the threats he claims he has received raises concerns for the Tribunal about his credibility and the genuineness of his claims.
Thirdly, the Tribunal is also concerned about other aspects of the applicant’s evidence that was vague, lacking in meaningful detail or internally inconsistent.
For example, when asked to describe the size of the land in question, the applicant simply said that he did not know. He was unable to provide any reason for this lack of knowledge. This heightens the Tribunal’s doubt as to whether he ever held or had been owed an interest in this land.
Asked whether he had taken any legal action against his father to try and recover the value of the land which had been unlawfully taken from him, the applicant said that he didn’t have any evidence but thought he might take action once he goes back to Nepal if his protection visa application is refused. The Tribunal finds this response undermines his claim that he genuinely fears for his life in Nepal if he is prepared to take action against his father in that country as that would heighten the risk of harm, assuming his claims are neither fabricated nor embellished.
Fourthly, the lack of corroborative evidence to support the applicant’s claims raises a concern for the Tribunal.
The applicant did not provide any documents to the Department in support of his protection visa application despite guidance advice in the application form impressing upon him that he must, wherever possible, provide documentation to support his claims.
In the interview with the delegate, the delegate explained to the applicant that it was his responsibility to provide all of his claims to the Department and provide evidence in support of his claims. The applicant confirmed that he understood this but did not provide any corroborative evidence following his interview with the delegate.
In response to the Tribunal’s hearing invitation, the applicant gave no answer to the question asking whether he intended to rely on any documents at the hearing, such as written witness statements, written submissions, country information, or other evidence.
At the outset of hearing on 14 October 2022, the Tribunal asked the applicant whether he had any documents he wished to provide in support of his case. The applicant said he did not.
During the hearing, the applicant told the Tribunal that he had inherited an interest in his grandfather’s land after his grandfather died in October 2012. He owned that interest for a period of about six or seven months. Asked whether he had any documents to prove that he held that interest, he said that he might have a copy of documents that had been attached to an email sent to him by his father. He recalled printing those documents, signing them in the presence of a person at the Nepalese Embassy in Canberra and posting the signed documents to his father in Nepal using the DHL courier service. He explained that he transferred his interest to his father on the understanding that his father would pay him $100,000. He said that he did not document the arrangement made with his father and his father has not honoured the arrangement.
At the conclusion of that hearing, the Tribunal put its concern to the applicant the distinct lack of persuasive evidence, particularly documentary evidence, to support his claims might lead it to find that those claims are unfounded and had been fabricated, or at the very least embellished. The Tribunal drew to the applicant’s attention to the distinct lack of evidence in relation to the following key claims that:
·     he inherited an interest in land from his grandfather;
·     he owned that interest in land for a period;
·     he transferred that interest in land to his father;
·     he transferred that interest in land to his father;
·     his step-mother and others have threatened him;
·     his step-mother was influential in Nepali politics;
·     his step-mother’s brother had a criminal background.
By way of response, the applicant stated he was unaware of the need to provide documents and would have done so if asked. He then acknowledged that he had not provided documents but his claims were true. The Tribunal advised that it would consider all information and documents provided to it up to the date of its decision.
As at the date of the Tribunal’s decision, no documents have been provided by the applicant to support his claims. The lack of documents to support the applicant’s claims raises a significant concern for the Tribunal. For example, the Tribunal considers that if the applicant had:
·     inherited land from his grandfather;
·     owned such land or was in some way entitled to that ownership;
·     transferred his title in that land to, or had otherwise been dispossessed of that title by, his father;
there would be some documentary evidence of this. For example, the Tribunal would expect there to be inheritance-related documentation, a land ownership certificate, land revenue clearance receipt, documentation from local bodies or municipalities governing the area in which the land is situated, title transfer documentation, DHL courier service receipts, written communications with his father about the land and perhaps a statement from the applicant’s bank account showing payments or receipts relating to costs involved with the property and other related transactions.
Furthermore, the applicant did not avail himself of the opportunity to corroborate his claims by way of calling any witness or providing witness statements from family and friends who are familiar with his circumstances.
In the circumstances of this particular case and the applicant’s claims, the Tribunal considers that the lack of any corroborative evidence, particularly documents to support the applicant’s claims as they relate to the land in question, raises further concerns about his credibility and the genuineness of his claims.
Fifthly, the applicant’s migration and visa history strengthen the Tribunal’s concerns about his claims.
The applicant arrived in Australia in 2009 as the holder of a student visa and returned to Nepal once since that arrival. He travelled to Nepal [in] October 2012 because his grandfather had died and he wanted to go the funeral. He stayed in Nepal for about five weeks and then eventually returned to Australia [in] December 2012. He has not departed since that date. He has made three student visa applications, the third having been refused by the Department on 27 November 2014. That refusal was affirmed by the MRT on 15 April 2015. He requested the Minister intervene in his case pursuant to s 351 of the Act but the Minister declined to do so on 6 April 2016. The applicant then applied for protection on 30 June 2016 and is now before this Tribunal.
In the Tribunal hearing, after discussing its concerns about his credibility, the Tribunal put to the applicant its concern that his migration and visa history, including the fact that he applied for his protection visa shortly after the Minister declined to intervene in his case, might suggest that his claims for protection are not genuine and what he really wants is a migration outcome that allows him to stay in Australia. The applicant responded that the threats occurred in 2014 or 2015 and he couldn’t apply for any other visa because his student visa application had been refused. He admitted that he was ‘buying time’ to stay in Australia seeking merits review and Ministerial intervention since his student visa application had been refused in November 2014, but stated that his situation was ‘still critical’.
The Tribunal does not accept this response. As set out above, the Tribunal has significant concerns about the applicant’s credibility. The applicant’s explanation for why he applied for a protection visa in 2016, after a period of ‘buying time’ in which he had limited visa options, does not alleviate the Tribunal’s concerns about the genuineness of his claims and his reasons for applying for a protection visa.
Sixthly, the applicant’s delay in seeking protection strengthen the Tribunal’s concerns about his claims.
The applicant claims that he received the threatening telephone calls in 2014 or 2015. However, the Tribunal notes that he did not take any real steps to prepare and lodge his protection visa application until May/June 2016.
In the Tribunal hearing, the Tribunal put to the applicant its concern that this significant delay in seeking protection for a period of up to two years after he had been threatened with death gives rise to doubt as to whether his fear of harm is genuine and whether he had fabricated or embellished his claims. The applicant responded that he was under a lot of pressure at the time but was still in Australia so he felt safe. He said that he also thought about staying illegally in Australia.
The Tribunal pressed the applicant further, drawing attention to his earlier evidence at hearing where he said he became aware of protection visas in January 2015 when he was considering his options to remain after his student visa application had been refused in November 2014. It put to him that his decision to exhaust other review options before seeking protection indicated that he was driven more by a desire to prolong his stay in Australia than an interest in resolving his status as soon as possible because he had genuine protection claims worthy of immediate attention. The applicant responded that he didn’t have family back in Nepal apart from an uncle who was not really like a father to him.
The Tribunal has considered these responses and finds that they do not assuage its concerns. As set out above, the Tribunal has significant concerns about the applicant’s credibility. The applicant’s explanation for why he applied for a protection visa in 2016 does not alleviate the Tribunal’s concerns about the genuineness of his claims and his reasons for applying for a protection visa.
Findings
Having considered all the applicant’s claims and evidence, for the reasons set out above, the Tribunal finds that the applicant is not a witness of truth.
The Tribunal accepts that:
·     the applicant was born in Bharatpur, Chitwan, Nepal.
·     the applicant’s mother died when he was a teenager and that his father remarried.
·     the applicant’s grandfather died in October 2012.
The Tribunal does not accept that:
·     the applicant inherited, or was otherwise entitled to, land owned by his grandfather.
·     that the applicant’s father took the applicant’s property and put it in his own name.
·     the applicant entered into an arrangement with his father over the transfer of land in Nepal and is owed money by his father pursuant to that arrangement.
·     the applicant has received threatening telephone calls from his step-mother or anyone else, as claimed.
·     The applicant’s step-mother has threatened to kill, or otherwise harm, him herself or arranged for someone else to kill, or otherwise harm, him.
The Tribunal understands the claim that ‘a lot has changed’ since he left Nepal relates solely to the claimed situation with his father, step-mother and the land in question.
The Tribunal does not accept that the applicant will be homeless if he returns to Nepal as he has other relatives in Nepal and Australia who are available to assist. Nevertheless, on the available evidence, the Tribunal is not satisfied that there are any factors that would prevent the applicant from re-establishing himself in Nepal. The Tribunal is not satisfied that the applicant faces a real chance of being subject to serious harm – including the denial of a capacity to earn a livelihood of any kind where the denial threatens his capacity to subsist[5] – on his return to Nepal. At hearing, the applicant told the Tribunal that since arriving in Australia he has been working consistently in a range of hospitality roles. On that basis, the Tribunal finds that he will be capable of securing and maintaining employment in Nepal commensurate with his skills and work experience. There is no persuasive evidence before the Tribunal to indicate or suggest that the applicant is disabled or otherwise incapacitated, or would be perceived as such by people in Nepal, such that he would not be able to secure employment in Nepal on that basis.
[5] To take one of the non-exhaustive instances of serious harm set out in s 5J(5) of the Act
Accordingly, taking into account the above findings, the Tribunal finds the applicant does not face a real chance of serious harm, or real risk of significant harm, should he return to Nepal now or in the reasonably foreseeable future.
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.
Peter Papadopoulos
Member
Attachment – Summary of the relevant law, mandatory considerations and an extract of key provisions of the Migration Act 1958
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted below.
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 below.
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.
Extract of key provisions of the Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 3196

30 June 2023

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