1835765 (Refugee)
[2024] ARTA 150
•30 October 2024
1835765 (Refugee) [2024] ARTA 150 (30 October 2024)
DECISION AND
REASONS FOR DECISION
Representative: Mr Komal Khatiwada (MARN: 0853554)
Respondent: Minister for Home Affairs
Tribunal Number: 1835765
Tribunal:General Member M Oakman
Date:30 October 2024
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 30 October 2024 at 1:34pm
CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – opposition to the Biplav Maoists – family involvement in Nepalese Congress Party – extortion – forced recruitment – attack on the family home – divorce – return visits to home area – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 November 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Nepal, applied for the visa on 9 December 2016. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 21 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant was represented in relation to the review, but his representative did not attend the hearing.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
Evidence before the Department
The applicant lodged his protection visa application with the Department on 9 December 2016. At the hearing he said he completed the application with the help of his then house mate. He said he told his house mate his claims about his political problems, but that he was not aware of what his house mate put in the application.
He attended an interview with the Department’s delegate on 13 November 2018. At the interview he discussed, among other things, his fears of returning to Nepal due to issues with Maoists in his home village, where the Maoists burnt down his family home in 2003, and with the Biplav Maoists in particular.
Evidence before the Tribunal
The applicant lodged his application for review with the Tribunal on 5 December 2018.
The Tribunal received emails from the applicant’s representative on 14 and 15 August 2024, providing submissions dated 14 August 2024 and a statement from the applicant dated 14 August 2024. The applicant’s statement was as follows:
“My name is [applicant’s name], and I was born on [date of birth]. I am a Nepali national.
I was born and brought up in [named village] of Myagdi district, Nepal which lies in the mid-Western part of Nepal.
I was born into a conservative Hindu family, and I had a traditional upbringing since my birth. My family are practicing Hindus, and I belong to Chhetri caste. I have professed Hinduism as my religion since my birth in a Hindu family.
When I was growing up, Maoist insurgency was on the rise. Myagdi was one of the key areas where Maoist were based and planned the uprising against the then His Majesty's Government of Nepal.
As Myagdi was one of the key areas where Maoists were based and were planning the people's war, I had a disturbing childhood and grew up in a climate of fear and anxiety. This is because Maoists were recruiting a lot of general people to support their revolt, popularly known as People's war against the then His Majesty's government of Nepal. This was done with an agenda of ending aged old inequalities and discrimination based on caste, creed, religion and economic status of Nepalese people, and for the socio-economic and political upliftment of ordinary Nepalese people. The recruits to the People's army included youths, and children and teenagers like me who were forcefully recruited into the People's Army or Janasena to support their cause to overthrow the existing government.
Additionally, the general climate of my village like other villages in Nepal during that time was characterized by fear and violence. Maoists resorted to violence and unlawful means to expand their recruits. Also, they used extortion as a means to strengthen their revolt financially. They killed, tortured or abducted people who did not politically align with their ideas or supported their cause financially.
As a result, many youths, and teenagers like me who were growing up during that phase were recruited to fight for the People's Army against the then His Majesty's government of Nepal. A lot of them lost their lives, disappeared and/or suffered permanent injuries and disabilities in the period between 1996-2006. This included my friends and people from my community whom I knew growing up. I therefore did not believe that the acts of violence would bring change to a country and did not support the Maoist ideals and their opinions.
This general socio-political climate during the time I was growing up affected my physical and mental state significantly. I also could not complete my studies to build a career because of the Maoist's insurgency like a lot of youths from that period. Maoists and their cadres often came to school as this presented them with an opportunity to persuade teenagers or youths like me to join their revolt. Anyone who would refrain from joining their cause was threatened with their life, tortured and was subjected to physical punishment and or other cruel, inhuman and degrading treatment.
Additionally, family members of such students or teenagers were also threatened if they would not let their child/children join the People's army to fight against the government. Experiencing this first-hand as a school-going kid was traumatizing for me and the fear of losing my life, my family and my loved ones was beyond my imagination. As a result, my childhood was always disturbed, and I could not complete my studies because the Maoists would often approach me at school and our village trying to convince me to join their party and fight for their cause. I used to be extremely scared and started skipping school because of their attempts to persuade me to join them. I would talk about this to my father. My father would not let me join Maoists or their cause out of his love and the different political opinion he held. Also, I was unwilling to join and fight for the Maoists as I did not like and support their political opinion. Consequently, Maoists threatened me and my father received threats to life and other severe punishment for not allowing me to join their party and fight for their cause.
My father [father’s name] was an active and influential member of Nepalese Congress Party (NCP) in our village. As a result, I was always impressed by my father and was aware about his political ideology as a democrat. He always influenced me by his thoughts to think and act democratically. Me and my family participated in the rallies, seminars and political events organised by NCP. These events were peaceful in nature and did not promote violence. NCP strongly condemned the acts of violence committed by Maoists against the general people and their property and invited them to sort this issue by dialogue. This made me prefer the political ideals of NCP even more over the ideals of Maoists. Also, from whatever I had been witnessing at school and in my village from the acts of Maoists which promoted extremist opinion and violence, I was more inclined to think that the political ideals of NCP which my father supported and followed was better than that of Maoists. This was the reason how I became a supporter and a member of NCP.
Our whole family member supported the political ideals of NCP over the ideals of Maoists due to my father's association with the NCP. NCP was one of the mainstream political parties at that time when the Maoists declared People's war against the then His Majesty's government in 1996. My father and our family were labelled as a family supporting NCP and was the reason why Maoists targeted us because our political party openly condemned the acts and ideals of Maoists. The Maoists always threatened us to give up our political ideals and support their ideals and political opinion to join the people's war. Also, I had been asked to join the people's war numerous times by the Maoists when I was a teenager. But as my father did not comply with the request of Maoists, we were threatened for life and were subjected to comply with their high extortion demands.
The armed conflict between the Maoist and the government forces became more intense in early 2000. Maoists needed more army and money to maintain their offensive against the government. As a result, they repeatedly threatened me and our family members if we would not support their cause and join the People's army, and their demands for monetary support significantly increased. My family did not abide by their threats to join them and could not keep up with their monetary demands.
Consequently, in 2003, the Maoists destroyed and burnt down our family home. Me and my family members were badly beaten and subjected to physical punishment or Jana Karawahi, for not complying with the demands of the Maoists. Me and my family were extremely terrified due to this cruel, inhuman and degrading treatment we faced at the hands of the Maoist cadres. We then managed to flee to Kathmandu somehow using our father's political connection and then to India in order to save our lives from the Maoists.
I then arrived in Australia in Oct 2016 on a visitor visa and applied for a Protection visa in December 2016. I have not returned to Nepal after coming to Australia seeking protection in this country. I am unable and unwilling to return to Nepal for whatever happened to me and family back in 2003 and I still fear that Maoists will persecute me for the reasons of my political opinion as a member of NCP. Nobody from my family members lives in our village at present due to the incident that we faced in the past.
Even though the conflict has settled, and Maoists have integrated well in the mainstream politics, the main Maoist (CPN-Maoist) has split into different factions. Maoist factions like CPN-Maoist (Biplav) - a hardliner splinter faction of Maoist led by Netra Bikram Chand (Biplav) is still actively operating in Nepal including my village as they believe their leader Prachanda and other prominent leaders failed to keep up on the promises they had made to the poor and marginalized people after they made it to the government. The spirit of the revolution as per the Biplav faction failed horribly and they are planning another People's war with a view to realise what was not achieved by CPN-Maoist and the first people's war. The Biplav faction also had problems with the Army Integration process and felt their soldiers were not given right position in the Army. The repatriation of other soldiers to their civilian life was not backed by proper compensation according to them and this is the reason why they are actively operating with a view to launch another offensive against the government.
Based on the incidents faced by me and my family members at the hands of the Maoists in the past and with Maoist faction like Biplav actively operating in Nepal, I am unable and unwilling to return back as I fear persecution in Nepal for the reasons of my political opinion. Similarly, since the time I have arrived in Australia, my wife has eloped with another man and has obtained a divorce from me. This will subject me to social stigma and shame as I would be looked like a person who was betrayed by his wife for another man. My masculinity would be questioned, and I will be ridiculed and humiliated for the breakdown of my relationship with my wife. This will affect the capacity to earn and lead a normal life in Nepal for me. I therefore will face significant harm and discrimination in Nepal if I was asked to return.
I cannot relocate to other parts of the country for my safety as Nepal is very small and the activities that Maoist factions are conducting in different parts of Nepal reinstates my fear of persecution. I have found from my communication with my father that some of the members of Biplav faction are the ones who had troubled us in the past and it is not safe for me to return to Nepal. The police and authorities would not want to be involved in these sorts of matters as there is evidence of them fearing for their safety themselves. Likewise, their non-involvement in such incidence in past and their unwillingness to intervene in this matter rationalizes my fear that I would be harmed if returned to Nepal. In respect of the social humiliation that I would have to face due to my wife, it is not something that I could go and report to the Police as these sorts of practice is common in patriarchal society of Nepal.
I cannot return and live in India because Nepalese people are discriminated and treated as inferior in India. They do not have the same right as any other Indian citizens would have and there is disparity in terms of the money and other social, economic and political benefit a Nepali would receive from the government and the employees. The Police and authorities also mistreat Nepalese nationals and are unwilling to lodge a complaint if any issues arise due to the difference in nationality. Also, I have significant language barrier and cannot speak or communicate in different local languages used in India. This affected my capacity to earn and lead a normal life in India. Also, I had to face significant discrimination while I lived in India which was the reason I chose to come to Australia.
I therefore request you to consider my claim and grant me a Protection in Australia.”
The applicant appeared before the Tribunal in person on 21 August 2024 to give evidence and present arguments. The applicant had requested an interpreter in the Nepali language and the Tribunal arranged for a Nepali and English interpreter to attend the hearing. Where relevant, the applicant’s oral evidence at the hearing is referred to in my analysis below.
At the conclusion of the hearing and noting that the applicant’s representative had been unable to attend the hearing, the Tribunal gave the applicant until 4 September 2024 to provide any further material and submissions in response to the concerns and issues that arose at the hearing. In an email dated 3 September 2024, the applicant’s representative provided an additional statutory declaration from the applicant dated 2 September 2024, in which he stated:
“1. I say that the evidence I have provided during the hearing were true and correct. I am unable to go back to Nepal due to fear.
2. I repeat that as detailed during the hearing, I have a genuine fear and believe I will not be able to survive in the hands of Maoists if I go back to Nepal.
3. The danger is real, and I an unable to face the reality back in Nepal. Therefore, I beg to the member to save my life.”
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
Receiving Country
The applicant provided a copy of his Nepalese passport to the Department when he lodged his protection visa application and to the Tribunal at the start of the hearing. He stated in his protection visa application that he was a citizen of Nepal and confirmed the same at the hearing. Based on that documentary and oral evidence, I accept that the applicant is a national of Nepal. Nepal is the receiving country for the purpose of this assessment.
Migration history
The applicant said he arrived in Australia [in] August 2016 on a visitor visa. He lodged an application for a protection visa on 9 December 2016.
Applicant’s Background
According to information given by the applicant in his protection visa application and at the hearing, he is [age] years old and was born in Myagdi, Nepal. He lived there until about 2003 when an incident caused the family to move. He subsequently lived in Kathmandu and then India. He married in 2008 and his wife divorced him in May 2024. They have a daughter, born in [specified year]. He has lost contact with his former wife and daughter. His parents live in Nepal in Kathmandu. He has a brother who has lived in [Country 1] for the last 12 years. He is Chhetri and Hindu. He reads, writes, and speaks Nepali and a little bit of English.
He attended school in Nepal but withdrew in [grade]. In India he worked as a dishwasher and did farm work. In Australia he worked for five years to the end of 2022 as [an occupation 1], had a year off in which he did about two months of farm work, and since then he has been back working as [an occupation 1].
Does the applicant satisfy the refugee criterion for protection?
At the hearing the applicant explained that he and all his family had lived in their village in Myagdi District until before 2003. In 2003 they were living in rental accommodation in the city, [Municipality 1], about an hour by car from the village. While living in [Municipality 1], the Maoists burnt down their home in the village. When their village home was destroyed, the family moved to Kathmandu. The applicant was in Kathmandu for six to seven months before he went to India for a number of years, although he returned from time to time to visit Kathmandu and Myagdi. His parents remained in Kathmandu, and are still living there, and he is in contact with them. His wife and daughter used to live with his parents in Kathmandu until a couple of months ago when his wife and daughter left, and he lost contact with them.
He was asked why he left Nepal to come to Australia. He said it was because of the 2003 incident when their house was burnt down. At that time the civil war was on, and the Maoists were torturing them because they supported the Nepalese Congress Party (NCP). His family wouldn’t change their NCP affiliation, so they had ongoing conflict with the Maoists in the village. After the 2003 incident his parents sold about 70% of their property in the village. They cannot access the remaining property in the village as the Biplav Maoists have prevented them from selling that property or it is otherwise not in a condition for it to be sold. He also has a problem because his wife recently married another man and because of that society in Nepal will look at him in a different way. He also said he could not go back as the Biplav Maoists are targeting him. He confirmed there were no other reasons why he left to come to Australia and said the political problems he had were the main reason. Since he’s been in Australia he has been working here, and he feels safe and protected.
He was asked why he fears to return to Nepal. He said if he goes back, they might think he has lots of money and they might chase him for donations and want to get money from him. He said he came to Australia for protection because he had no other option. In Australia he is respected and feels safe. His main fear, if he returns to Nepal, is from the Biplav Maoists, and because his wife has left him. He was asked what problems he may face because his wife left him and said his parents are renting in Kathmandu, and his wife has left him. He was asked about his concerns involving the Biplav Maoists. He said the problems remain the same. When he contacts his father, his father says they are starting to torture him, and that the applicant should stay in Australia. His brother in [Country 1] also wants to get his parents to [Country 1] because it will be safer for them. He was asked what he meant by his father was starting to be tortured. The applicant said his father had been telling him since the problem in the village they have been threatening his father over the phone and they sometimes threaten to harm the applicant if he returns. They also made his father donate money to them on two occasions, one occasion it was the equivalent of AUD$600 when his father sold some land in the village and the second occasion was about four years ago and it was the equivalent of AUSD$1,000. The threats, including the threats to harm the applicant, happened while he was in India and have continued while he has been in Australia. Also when the applicant was in India he had an altercation with Maoist cadres so he had to move. He said his father had told them that the applicant was in Australia and would be here forever. The last time his father mentioned the threats being made against the applicant was three or four months ago. However, the applicant feels his father is not disclosing everything to him.
He said if he returns to Nepal, he will be harmed by the Biplav Maoists and that he couldn’t go back to the village because his parents had sold most of the land there. He confirmed he didn’t fear harm from anyone else and said the Bipav Maoists were the main one. He also was worried that his parents may not be there if he returns, as his brother wants to get them to [Country 1], and he no longer has his wife there. He is also concerned that is he was in Kathmandu the Biplav Maoists will ask him for a donation.
The Tribunal did not find the applicant’s evidence credible. In reaching this view I am mindful of the difficulties often faced by applicants for protection, particularly those for whom some period has passed since they departed their country of origin, including factors such as recall problems, misunderstandings in interpreted material, cultural communication issues, or a lack of cohesive narration due to experiencing trauma or the passage of time.
At the hearing, the applicant claimed for the first time that his father has consistently been subject to threats by the Biplav Maoists since the family moved to Kathmandu after the 2003 incident(s) in the village, and that the threats sometimes included threats to harm the applicant if he returned. In discussing these threats, he also claimed for the first time that, in addition to threats by phone, they would also sometimes visit his father at his home. I do not consider it credible that the applicant did not mention these ongoing threats until the hearing. I raised with the applicant that his mentioning these threats for the first time at the hearing and failing to mention any such threats in the detailed statement he provided just prior to the hearing, may raise credibility concerns about his claims. He said he let the lawyer write all these things down and maybe the lawyer forgot to mention it. I do not accept that a lawyer would miss such a significant point, if the applicant mentioned it, when preparing a statement in relation to the applicant’s claims. The applicant’s failure to mention these ongoing threats to his father, including supposed threats against the applicant, by the Biplav Maoists until the Tribunal hearing reflects very poorly on the credibility of these claims and his overall reliability and credit as a witness.
Additionally, there are other issues with the applicant’s evidence, as follows:
·At the hearing the applicant said he returned on a number of occasions to Kathmandu and Myagdi from India. I raised with the applicant that these return visits appeared inconsistent with his claimed fear of the Biplav Maoists and the ongoing threats he said his father was receiving, which may raise credibility concerns about his claims. He said he went to Myagdi before the breakdown and there were no big threats; he went there before 2008; and in 2008 to get married. I do not consider his response convincing. I do not consider his claims of ongoing threats from, and a fear of harm from, the Biplav Maoists to be credible given his return occasional visits to Myagdi and Kathmandu.
·I raised with the applicant at the hearing that it was now some 20 years since the incident when his family home was burnt down by the Maoists, and his family were forced to relocate. I discussed with the applicant that the passage of time may suggest that any adverse interest they had in the applicant and his family had dissipated, which may suggest he would not now face any harm in regard to that previous adverse attention he and his family received from the Maoists, if he were to return to Nepal. In response he said it was still very difficult, his main concern was from the Biplav Maoists, and his father was still telling him these things, so he had no option to go back to Nepal and he had to stay in Australia. I do not consider it credible that after some 20 years the Maoists would, putting aside the claimed ongoing threats, continue to have an adverse interest in the applicant and/or his family. This is particularly so given the applicant’s evidence at the hearing that his parents, after initially living in a different home, had lived in the same rental accommodation in Kathmandu for almost 20 years.
Overall, and based on the issues identified above with the applicant’s evidence, I do not accept his claims in relation to the Biplav Maoists having an ongoing adverse interest in him and/or his family. As he has consistently claimed his home in the village was burnt down by Maoists in 2003 and given country information about the Maoist insurrection in Nepal at the time, I am prepared to accept that he and his family, as NCP supporters, suffered adverse attention from the Maoists in their village up to 2003 and relocated to Kathmandu after their house in the village was destroyed in 2003. I do not accept that his father has received any threats, visits, or been forced to make donations to the Biplav Maoists since he relocated to Kathmandu more than 20 years ago. I do not accept that the applicant or his family were of ongoing adverse interest to the Maoists, including the Biplav Maoists, after they relocated away from the village, and including when the applicant lived in India. It follows from these findings I also do not accept that the applicant was of any adverse interest to the Biplav Maoists, or anyone else, at the time he left Nepal for Australia in 2016 or that he was of adverse interest to the Biplav Maoists or anyone else since he has been in Australia.
Country information indicates that leaders, members, and supporters of opposition political parties are not at real risk of persecution or serious harm from state actors. Nepal’s Constitution guarantees freedom of expression, assembly, and association and, in general, the government respected these rights. Political violence has declined since 2019. Nepalis are generally at low risk of violence, harassment, or discrimination based on political opinion, regardless of profile. Political opponents of Maoists are generally not at risk of violence from Maoist groups.[1] At the hearing I raised this country information with the applicant and said it may raise concerns that, his and his family’s support of the NCP and your previous adverse interactions with Maoists would not be any adverse interest or concern to the authorities or Maoist/communist aligned parties and their supporters if he returned to Nepal, even if he continued to support the NCP. He referred to his previously stated fears, said he wanted to stay here at any cost, and said his family would have already moved back to Myagdi if the problems he raised were not the case. In view of my credibility findings about the applicant’s claims of post-2003 adverse attention from the Maoists, I prefer and accept the country information position that political opponents of Maoists and Maoist aligned parties are generally not at risk of violence.
[1] UK Home Office, “Country Policy and Information Note, Nepal: Political Affiliation”, November 2023; US Department of State, “‘2023 Country Reports on Human Rights Practices: Nepal”, 22 April 2024; and DFAT, “DFAT Country Information Report – Nepal”, 1 March 2024.
Given the above findings, and the country information, I do not accept that the applicant may be of adverse interest to, or that he faces a real chance of suffering harm from the Biplav Maoists or anyone else, due to his political views or for any other reason, if he were to return to Nepal, now or in the reasonably foreseeable future.
The applicant has previously lived in Kathmandu. His parents currently also live in Kathmandu. Kathmandu has an international airport. Given those factors, and notwithstanding that his parents may at some indeterminate point in the future possibly move to [Country 1], I find it is highly likely that the applicant will return to Kathmandu, if he returns to Nepal.
The applicant was divorced by his wife, who has subsequently married another man, earlier this year. He says he fears he will be subject social humiliation and ridicule because of this in Nepal’s patriarchal society. DFAT indicates in its recent report on Nepal that divorce is available by mutual consent or on the grounds of infidelity, abandonment, or domestic violence. Stigma attaches to family breakdowns and single mothers; nevertheless, in-country sources told DFAT that divorce was increasingly common, especially among younger, urban Nepalis. According to local media reports, the number of single women in Nepal has risen sharply in recent years, including due to greater societal and legal empowerment of women to leave abusive relationships.[2] Although DFAT made those comments in relation to the situation for women in Nepal, I am prepared to accept that some stigma attaches to husbands who are divorced by their wives. However, although facing some societal stigma in relation to his divorce by his wife, and her remarrying, whether in the form of ridicule, negative attitudes, a level of social isolation or otherwise, may be hurtful and/or upsetting, I am not satisfied it amounts to significant ill treatment or any other type of harm that may be regarded as serious harm.
[2] DFAT, “DFAT Country Information Report – Nepal”, 1 March 2024.
Considering the findings set out above, the Tribunal is not satisfied that if the applicant returns to Nepal now or in the foreseeable future, he faces a real chance of persecution.
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).
Does the applicant satisfy the complementary protection criterion for protection?
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).
I accept that, if he returns to Nepal, the applicant may face some social stigma because of his wife divorcing him and remarrying. As acknowledged above social stigma may at times be hurtful and/or upsetting, however, I am not satisfied on the evidence that any hurt and upset he may suffer from social stigma will amount to severe pain or suffering, or pain and suffering that could reasonably be considered as cruel or inhuman in nature. Similarly, social stigma may be hurtful and upsetting but it does not amount to extreme humiliation. I am not satisfied that it amounts to the death penalty, arbitrary deprivation of life or torture. I am not satisfied that any social stigma suffered by the applicant because of his wife divorcing him and remarrying amounts to significant harm as defined in ss.36(2A) and 5 of the Act.
For the reasons set out above I have found that there is not otherwise a real chance of harm for this applicant for any reason were he to return to Nepal. As ‘real risk’ and ‘real chance’ involve the application of the same standard,[3] he also does not face a real risk of any harm in Nepal. I find that the applicant does not face a real risk of significant harm in Nepal.
[3] MIAC v SZQRB (2013) 210 FCR 505.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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) or 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 under review.
Date(s) of hearing: 21 August 2024
Representative for the Applicant: Mr Komal Khatiwada (MARN: 0853554)
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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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