1836451 (Refugee)

1836451 (Refugee) [2019] AATA 6615 (22 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1836451
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Paul Windsor
DATE:22 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 22 November 2019 at 12:19pm
CATCHWORDS
REFUGEE – protection visa – Nepal – Federal Court remittal – political opinion – Nepali Congress – political activist – particular social group – journalist – fear of attacks by Maoists – torture – fear of killing – Nepal Student’s Union member – relocation to India – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made on 5 June 2014 by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant, [named], a Protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant], who claims to be a citizen of Nepal, applied for the visa on 21 August 2013. A summary of the relevant law applicable in this case is at Attachment A.
In the Protection visa application [the applicant] indicated he was born in Gulmi, Nepal on [date]. He stated he is a Hindu and speaks, reads and writes English and Nepali. He indicated he was married but separated [in] 2009. He stated he departed Nepal legally [in] November 2008 and arrived in Australia [the next day], entering on a [temporary] visa.[1]
[1] See folios 16-30 of the Departmental file.
At questions 43-48 of his Protection visa application [the applicant] claimed that he left Nepal because it was unsafe and he was continuously getting death threats from political groups because he was a well-known democratic leader. He stated that people tried to kill him, he was beaten and his leg was fractured in the process. He commented that he does not think the Nepalese authorities can and will protect him because all authorities and officers are heavily influenced by the political groups who are targeting him.[2]
[2] See folios 21-24 of the Departmental file.
The delegate did not make a finding in relation to whether [the applicant] has a well-founded fear of persecution or is at real risk of suffering significant harm in Nepal. The delegate refused to grant the visa because he found that s.36(3) of the Act applied in this case as he was not satisfied that [the applicant] had taken all possible steps to avail himself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, and found that [the applicant] has statutory effective protection in a third country, that country being India.
[The applicant] sought review of this decision by the Tribunal on 14 July 2014. He provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See folios 2-9 of Tribunal file [number].
Judicial review
[In] July 2015 the Tribunal, differently constituted, affirmed the decision not to grant [the applicant] a Protection visa.[4] The first Tribunal indicated it had a number of significant concerns with [the applicant’s] evidence about being abducted by Maoists and suffering injuries in November 2003. These related to perceived inconsistencies in his evidence regarding the number of people who abducted him; how he returned from the Maoist camp; the severity of claimed injuries to his leg and the nature of treatment he received for those injuries; and how long he remained in the area before he fled to Kathmandu. The first Tribunal was not satisfied that [the applicant] had been a truthful witness in relation to his account of being abducted by Maoists in November 2003, suffering harm and having to flee to Kathmandu as a result. The first Tribunal found that by his own evidence, [the applicant] suffered no harm or threats from Maoists during his time in Kathmandu from 2004 until he left for Australia in 2008 and, considering independent country evidence indicating that political violence has declined significantly in recent years, with one source indicating no insurgency violence taking place at all in 2014, found there was not a real chance [the applicant] would suffer serious harm or a real risk he would suffer significant harm, should he return to Nepal. [The applicant] sought judicial review of this decision [in] August 2015. [In] April 2017 the Federal Circuit Court of Australia (FCCA) dismissed the application for review.[5]
[4] See Tribunal file [number].
[5] See [Source deleted]
[The applicant] appealed the FCCA judgment. [In] November 2018 the Federal Court of Australia (FCA) quashed the Tribunal’s decision of [July] 2015, finding that the decision was affected by jurisdictional error, and directed that the application for review be determined according to law.[6] In essence, the FCA found that the first Tribunal erred because it did not undertake a process of ‘some weighing or evaluation’ of the country information ‘indicating a basis for preferring one source to another’ in its ‘analysis of the country information that led it to reach the conclusions set out at [60]-[61] and [67]-[68] of its reasons’.
[6] See [Source deleted]
[The applicant] appeared before the currently constituted Tribunal on 11 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted in the English language.
[The applicant] was represented in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims
[The applicant] attended an interview with the delegate on 30 May 2014. He expanded on the claims in his Protection visa application in a statement of the same date. Further matters raised in this statement are summarised as follows:[7]
[7] See folios 67-69 of the Departmental file.
·He has a political background. As a politician he used to work as a [local] leader of [group 1] of Nepal. This organisation is considered [connected to] the mainstream political party called ‘Nepali Congress’.
·He was [an occupation 1] in a [business] in [Village 1 in] Gulmi, a rural area of Nepal. He used to walk from his home to [work], which took nearly one and a half hours. Maoists were active in the area, which was beyond the reach of security forces, and they started to threaten [occupation 1s].
·The Maoists, who were well equipped with modern arms, used violence to destroy democracy. He was against their ideology and used to train the youth and [workers] ‘affiliated with right wing’ to discourage them. This made him ‘on their prime target’.
·As a [local] leader of the Nepali Congress [group 1] it was his responsibility to upgrade democratic norms and values in the village. In this process they had many disagreements in many issues with Maoists. Their main issue was the [business] where he worked. They were against it and to discourage them the Maoists asked the staff to pay half their salaries for the Maoist cadres. When they refused the Maoists became more aggressive towards them. They tried to stop him going to [work] but he didn’t listen. On [a day in] October 2003 they captured him on the way to [work] and threatened either to close the [workplace] or be ready to face physical action. After reaching the [site] he met with shareholders and they concluded they would run the [workplace] at any cost.
·On [a day in] November 2003, the Maoists abducted him when he was in the [workplace]. They took him to their camp. He was clear that he was against their brutality and intimidation. He was beaten severely. [Later in] November 2003 they carried him near the [business] on the bank of the river where he was received by villagers. He has a photograph taken by one of the villagers which was later supplied to him through one of his [clients].[8] He was taken to the nearest health post for treatment. Because of the repeated death threats, he left home to survive.
·He became isolated and fearful if he saw groups of new men, feeling he would be kidnapped and killed. He shifted rented rooms four times a year, thinking that the Maoists might get information about his activities. Eventually he got away by applying for a [temporary] visa for Australia.
·After a few months in Australia he came to know his wife was in love with someone else and he sent her back to the man she was in love with.
·While in Australia his grandparents passed away and his mother was hospitalised, but he was unable to return to Nepal due to fear of the Maoists. He was feeling ‘discomforts’. It was such a ‘hostile time’ that he was unable to think about his visa. His mother subsequently passed away. He has one brother left behind who has been living in [Country 1], who he has not seen in twelve years. The only option for him was to live in Australia without fear so he consulted an immigration agent and lodged the Protection visa application.
·He has recurring nightmares where he sees people following him to attack and kill him. The doctor said he is badly affected due to the misbehaviour and torture. He has provided a letter from the doctor.
[8] See folio 63 of the Departmental file.
The letter from [the applicant’s] doctor is a handwritten note from the [medical service] dated ‘[date] May’ (no year provided but presumably issued in 2014) indicating that [the applicant] has consulted ‘me’ on two occasions; suffers agoraphobia, (unclear) and anxiety; and tells ‘me’ he was abducted by Maoist rebels whilst [working] in Nepal, which would cause these issues.[9]
[9] See folio 64 of the Departmental file.
[The applicant] also submitted copies of a letter dated [in] May 2014, purportedly from the [Position 1] of the [specified local group] of the Nepali Congress, stating he was an active [local] leader of an affiliated [group 1] who was abducted by Maoists [in] November 2003 while [working] in a [venue], was repeatedly threatened and due to death threat was displaced.[10]
[10] See folios 65-66 of the Departmental file.
On 18 June 2015, prior to the hearing with the first Tribunal scheduled for 25 June 2015, [the applicant’s] then representative forwarded to the Tribunal additional documents in support of the review application.[11] These included a submission by [the applicant] in support of the review application and a letter dated 4 June 2015 from his brother, [named], who indicates he is a permanent resident of [Country 1] and is living [there]. Relevant additional matters raised in [the applicant’s] submission are summarised as follows:
·He sought protection because he is at risk of losing his life because of possible abduction and bodily harm that the insurgents could cause. He was abducted prior to coming to Australia and had suffered torture and injury. He was able to run away from the custody of the Maoists and was hiding up until he decided to come to Australia to save his life.
·He does not believe he can seek refuge in India as the border between Nepal and India is open and no documentation is required to exit and enter either country for the citizens of either country. While this means he can enter India without restriction that is also true for members of the insurgent group targeting him. His brother has informed him that he has been told by Maoist groups that if he is hiding in India, they will find him out and take action. The Maoists also have their own links and sources of information and local people in India could also assist them if they use their contacts or offer some financial benefit to the local people. It is also likely that he would have to enter Nepal first to access India and his presence in Nepal, even for a short time, would possibly and eventually lead to the risk to his life. Residing in India does not exclude the risk to him of being persecuted or suffering significant harm.
[11] See folios 35-38 of Tribunal file [number].
Relevant additional matters raised in the letter from [the applicant’s] brother are summarised as follows:
·He was an eyewitness to the situation of his brother, who was abducted by Maoists and attacked brutally, causing him to suffer physically.
·He visited his brother in the capital, Kathmandu, when he was hospitalised. When he met his brother, his brother was severely injured due to the Maoist’s attack which occurred in [Village 1] in Gulmi district at the end of 2003, when his brother was working as a leader of a [group] affiliated with rightist wings.
·Because of repeated death threats his brother was displaced. Returning to Nepal or staying in India are not alternatives since the Maoists have targeted him to be killed. Due to the open border between Nepal and India, Maoists can do whatever they want.
On 25 June 2015 the then representative provided a copy of a letter from the [manager] of the [business] in [Village 1], Gulmi, indicating that [the applicant] served at the [business] as [occupation 1] in the [specified section] for two years from 2059 to 2061(under the Nepali calendar – which equates to 2002 to 2004 in the Gregorian calendar). The letter states he was ‘devoted to flourish the [business] and was active, co-operative and conscientious individual’. The letter indicates that he ‘left this [site] for his/her own accord’.
[The applicant] engaged a new representative on 11 October 2019 and a submission from this representative was provided at the hearing of the same date.[12] The representative submitted that:
·[The applicant] has a well-founded fear of being persecuted for reasons of a particular social group, namely ‘political activist’.
·There is a real risk he would suffer significant physical harm from his political opponents and their friends, if forced to return to Nepal;
·There is a real risk he would suffer significant emotional harm if forced to return to Nepal, because ‘the system’ could force him into a mental hospital where he could be subjected to degrading treatment such as electric shock therapy and deprived of his liberty.
·He will be subjected to discrimination and mistreatment as a member of the particular social group ‘political activist/journalist’.
·There is a real risk he would suffer significant economic hardship that threatens his capacity to subsist, comprising significant harm, if forced to return to Nepal, because he would have great difficulty in finding employment anywhere in Nepal or be unable to find rental or other accommodation because of the stigma associated with being a political activist/journalist.
·An unfavourable immigration outcome may trigger a tragic event as [the applicant] has ‘already displayed signs of mental illness’ and has been medically assessed by a medical practitioner.
[12] See folios 55-60 of the Tribunal file.
Included with the submission was a further copy of the letter dated [in] May 2014 from the [Position 1] of the Nepali Congress previously submitted to the Department; an extract (copy of page 19) from the 2019 DFAT Country Information Report on Nepal; a copy of a medical certificate dated [in] November 2017 indicating that [the applicant] is suffering from a medical condition [in] November 2017 and is unable to attend his hearing; and copies of a medical referral, K-10 assessment and Mental Health Care Plan from [a named doctor] of the [named] Medical Centre dated [in] July 2016, indicating that [the applicant], who had presented with PTSD and depression and had been prescribed [Medication 1] for mixed anxiety/depressive disorder, had been referred for 6 sessions of psychological treatment.
At the hearing the Tribunal put to [the applicant] for comment or response in accordance with the requirements of s.424AA of the Act, some information from the recording of the interview between him and the delegate of the Minister held on 30 May 2014, that is inconsistent with other evidence given by him, including at the hearing with the first Tribunal. This information is that:
·He indicated that two people abducted him in the November 2003 incident;
·He indicated that he was incapacitated for one and a half months as a result of his injuries in the November 2003 incident; and in addition
·His family gave him money to travel to Kathmandu.
It was put to [the applicant] that in the first Tribunal hearing he said he was abducted by 7 to 8 men, rather than 2 men; an injury causing such incapacity is not consistent with him stating he walked the five to six hours back from the Maoist camp, and is not consistent with his indication at the first Tribunal hearing that the injuries caused him to suffer difficulties for a couple of weeks; and the statement suggests that he remained in his local area for at least a month and a half after the November 2003 incident, which is inconsistent with the claim in the first Tribunal hearing that he left for Kathmandu several days after the kidnapping in November 2003.
The Tribunal put to [the applicant] that it considers the information relevant because, depending on his responses, if the Tribunal relies on this information in making its decision it may find that there are inconsistencies in his account which reflect on the credibility of his claim to have been abducted and to have suffered the claimed injury, which may cause the Tribunal to affirm the decision under review. When asked if he understood why the information was relevant to the review and the consequences of the information being relied upon in affirming the decision under review, [the applicant] sought clarification. The Tribunal explained the question and [the applicant] indicated he understood why the information was relevant to the review. He indicated that he did not wish to respond immediately but wished to have an adjournment and consult with his representative. The Tribunal granted a ten minute adjournment. After the adjournment [the applicant] commented that he needed the material put to him in a letter and that he did not wish to comment on or respond to the information now, adding that he is a little bit ‘down’ at the moment and wishes to respond by letter. The Tribunal responded that the information has been put to him under s.424AA of the Act at the hearing rather than by letter and the Tribunal would not be putting the information to him by letter. The Tribunal suggested that if he did not wish to respond or comment now, at the end of the hearing he could request a copy of the recording of the hearing, listen to it and respond to the Tribunal in writing on that basis. The Tribunal commented that the previous Tribunal had put this information to him in writing under s.424A of the Act and he had not responded and that is why the current Tribunal had now put the information to him at the hearing under s.424AA of the Act. [The applicant] indicated that he wanted a letter because he could not remember what the information was. The Tribunal repeated the relevant information for him a number of times. [The applicant] requested a month to provide a written response. The Tribunal indicated that it considered two weeks should be sufficient and allowed until close of business on Monday 28 October 2019 (17 calendar days) to provide his response, but commented that if he couldn’t respond in two weeks he could come back to the Tribunal and explain why he needed additional time to provide his response.

[The applicant’s] representative responded in a submission of 28 October 2019 which includes an email dated 20 October 2019 from [the applicant] to the representative addressing these issues.[13] In relation to the issue of the number of abductors, comment is made that the apparent inconsistency is a misunderstanding based on grammatical interpretation, and while there were 7-8 abductors in total (who abducted 4-5 people in the incident) [the applicant] personally was controlled by two of these people. In relation to his injuries, [the applicant] indicated that he was incapacitated by his injuries in his right leg but was taken by the Maoists to the bank of the river near the [business] where he was found by the villagers. The representative notes that [the applicant] had clarified the situation indicating that despite his injuries, when a person is faced with a life or death situation, the human body is capable of quite surprising feats of endurance, in this case walking about 6-7 hours and for many miles, back to safety. In relation to the timing of his departure to Kathmandu, [the applicant] indicated that he had left the village after a couple of weeks, but was ‘hospitalised in [a named hospital] for further treatment’.
[13] See folios 73-88 of the Tribunal file.
The submission also includes comment on the assessment of credibility (citing court precedents); issues discussed at the hearing; and country information. With reference to an enclosed Al Jazeera report of 21 April 2019 (The spectre of a new Maoist conflict in Nepal), and other cited ‘sites’ it is submitted that the situation in Nepal has deteriorated to the extent that there is a real chance of [the applicant] being subjected to discrimination and mistreatment as a member of a particular political social group, opposed to the ruling Naxalites (or a political person opposed to the ruling Maoist party). Included also was a letter of support from [Mr A] who indicates he was a [client] at the [business] when [the applicant] and other others were abducted by Maoists and knows he was threatened repeatedly. The representative also included a copy of his handwritten notes from the hearing.
Findings and reasons
Identity
Considering the copy of his Nepali passport provided to the Department, and noting the delegate’s findings in relation to this matter, the Tribunal finds that [the applicant] is a citizen of Nepal as claimed. Accordingly, the Tribunal finds that Nepal is his country of nationality for Convention purposes and is his ‘receiving country’ for complementary protection purposes.[14]
Key Issues
[14] See folios 59-62 of the Departmental file.
The key issues in this review are whether [the applicant] faces a real chance of suffering treatment amounting to persecution involving serious harm from Maoists/communists if he was to return to Nepal, because he was an active [local] leader of a [group 1] affiliated with the Nepali Congress political party and because he is opposed to Maoist/communist ideology; and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Nepal, there is a real risk that [the applicant] would suffer significant harm for the purpose of s.36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
For the reasons set out below, the Tribunal, while taking care not to adopt an overly stringent approach to [the applicant’s] evidence and giving the benefit of the doubt where appropriate, has found that some of [the applicant’s] claims have not been made out.
Background
At the hearing [the applicant] indicated that he completed a [Qualification 1] in [Subject 1] in [a location] in Chitwan district in southern central Nepal, and also studied towards [another qualification] (which he did not complete) from 2005 until 2008 while he was living in Kathmandu. He indicated that his job as [an occupation 1] with the [named business] in [Village 1 in] Gulmi district, from 2002 until 2004 was his first employment, and then he worked as [an occupation 1] at [Business 1] in Kathmandu from 2004 until 2008. When the Tribunal asked him if he had done any other work in Nepal he indicated he had not.
The Tribunal asked [the applicant] how he got involved with the [group 1] Nepal. He indicated he was nominated to be the representative for his village in Gulmi district (which he indicated has 79 villages) representing [a number of workers], because he had been a member of the Student Wing of the Nepali Congress party while he was at university in Chitwan doing his [Qualification 1]. He commented that he had been active in promoting democratic norms and values and had been elected to the student union in Chitwan.
The Tribunal asked [the applicant] what his role was at the [business] in Gulmi. He said he was the [management role] there. The Tribunal queried him regarding how he was able to get his first appointment as a [management role] and commented that the reference letter he had provided from the [manager] of the [worksite] made no mention of him being [in the management role] but stated he held the post of [occupation 1] for two years. [The applicant] said he worked as [an occupation 1] but was [in a management role] as well. The Tribunal accepts that [the applicant] worked at this [site] for two years from 2002-2004 in [an occupation 1] capacity but does not accept that he was [in the management role]. The Tribunal considers if this was the case, the [manager] would have mentioned it in a reference letter provided on completion of his tenure at the [workplace]. The Tribunal accepts that [the applicant] was the local representative for [group 1].
Claim to have been threatened, abducted and beaten by Maoists in late 2003.
The Tribunal asked [the applicant] to tell it about the incidents of October and November 2003. He commented that there was Maoist terror everywhere at that time, especially in rural areas. He indicated that one day when he was going to [work], he was stopped in the forest by a ‘guy’ who knew his name and asked him to follow him up into the forest a bit where there was a group of Maoists. He indicated they told him he had to close the [business] or they would take ‘physical action’. He indicated they also told him they would pay him a higher salary if he went with them. [The applicant] indicated that he declined and told the Maoists it was not his decision whether the [business] was closed and there was no reason to close it. He indicated that he then went on to the [workplace] but when he arrived there were armed Maoists already there. He indicated the Maoists went to the office and started to bully them, focusing on the [manager]. He said the Maoists gave an ultimatum that if the [business] was not closed within one week they would blast it with a 5 kilogram bomb. He indicated that they held a ‘shareholder meeting’ where it was decided that the [business] would continue operating.
[The applicant] indicated that after a week 5-7 armed Maoist cadres again came to the [workplace] and abducted five people. He said the [manager], him and a couple of others were taken to the Maoist camp which he indicated was at a [larger site]. When asked whether four or five people were taken he said three [specified workers] were taken. He said they were taken to the Maoist’s camp, which was 7-9 hours walk away. He said that when they reached the camp the Maoists were there in large numbers, and also had other [occupation 1s] from other parts of the district who they had also abducted. He commented that the Maoists wanted them to follow [new] communist [practices]. [The applicant] indicated he said to the Maoists that if they close the [site] it would ruin the lives of [many clients] and the Maoists could do whatever they wanted but they would not close the [workplace].
When asked what the Maoists did in response to his comments, [the applicant] indicated they were separated and he was told not to be smart and hit with a stick, including on his right leg. He indicated this went on for an hour and his leg was injured. [The applicant] said the beating was on the third day they were held which was also the day they were released. He indicated they were released because all the villagers had told the Maoists that if they harmed the [workers] they would not allow the Maoists to stay in the village, where they would go home to sleep. He indicated that the Maoists took them back the same way they had come and commented that when they were released hundreds of villagers were waiting to receive them.
The Tribunal asked [the applicant] about his leg injury. He said there was a bone crack. The Tribunal asked him how he was able to walk with a bone crack. He said it was not fully broken and indicated he had no choice but to move. He indicated that he was taken to [a] hospital three hours away, and admitted for a couple of weeks. When asked what treatment he had he said he had small surgery. When asked what the surgery was for he said the outer part of the leg was smashed and the bone was cracked. When pressed on the nature of the treatment he said he had stiches. When asked why he was admitted for two weeks after having some stiches put in his leg, [the applicant] commented there was no way for him to return to his village. He indicated that he stayed in the area for a couple of weeks then left for Kathmandu.
The Tribunal asked [the applicant] about the copy of a photograph he had provided to the Department. He said it was taken by one of the villagers at the river bank when they were released. The Tribunal asked him why the others who were released are not in the photograph. He said one of his former [clients] had given it to him. He commented that he is wearing his uniform and his hands are still tied at the back. The Tribunal put to him that in the photo he does not look like someone who has just walked for 10 hours with a broken leg. He commented that the villagers negotiated with the Maoists for their release.
The Tribunal asked [the applicant] what treatment he had in Kathmandu. He indicated that the injury to his right leg worsened while he was there, there was more swelling, and he was admitted to Kirpa hospital as an inpatient. He said he has forgotten how long he was admitted for. When asked what treatment he had he said he took medication as well and for five days to a week he took rest.
The Tribunal asked [the applicant] if the Maoists blew up the [worksite]. He said they did not but indicated it closed for one year.
The Tribunal asked [the applicant] if he had any contact with the Maoists before the October 2003 incident. He said the Maoists used to come to his home and ask his mother to cook for them. He added that he remembers now that they were taken many times to other places in the district where the Maoists would threaten the [workers] to attend their program and do things their way, following their [program], or there would be problems. Noting that in his initial statement he indicated that he was continually getting death threats from political groups who were targeting him, the Tribunal queried [the applicant] how what he had told the Tribunal amounted to him continually getting death threats from groups targeting him. He indicated that as time went by the incidents were increasing, culminating in his leg injury. He said the Maoists’ threats that if he didn’t do what they wanted they would have to take physical action constitutes a death threat. The Tribunal asked [the applicant] if that was the case why had the Maoists released him and assisted him to return from their camp. He replied that they were trying to negotiate with the village and when he was in hospital they threatened his parents and told him to leave.
The Tribunal has concerns about elements of [the applicant’s] evidence in relation to this matter, particularly the nature of the injury sustained to his leg. While his representative has commented that the ‘member assumed it was a ‘broken leg’ but in fact it was just injuries’, at question 44 of [the applicant’s] Protection visa application it is stated that people beat him ‘and in the process my leg was fractured’. At the hearing [the applicant] also stated that he suffered a ‘bone crack’ and that he had small surgery for a bone crack, but when queried about how he could walk for such a long period of time with a bone crack replied that it was not fully broken, and when queried about the nature of the surgery replied that he had stitches inserted to a wound on his leg.
Notwithstanding these concerns, and considering the responses [the applicant] provided to the information put to him under s.424AA of the Act, the Tribunal accepts it is plausible that in November 2003, during the Maoist insurgency in Nepal which lasted from 2000 until 2012 (peaking in 2002),[15] [the applicant] was among a group of [workers] of a [business] who were abducted by Maoists in rural Nepal because they declined to close the [business], and that the [business] subsequently closed for a year. The Tribunal accepts that it is possible that [the applicant] sustained a leg injury, including through being beaten, that required stiches and which may have become infected and required further treatment when he went to Kathmandu.
[15] SATP Nepal: Assessment – 2018, >
Considering [the applicant’s] evidence indicating that the [business] closed for a year, the reference letter from his [manager] indicating that he left the [business] ‘for’ his own accord, and his evidence that Maoists assisted him to travel the 7-9 hours back to his [worksite] after his release, the Tribunal does not accept that [the applicant] left Gulmi district because he was continually receiving death threats from the Maoists. His comment at the hearing that the threats increased while he was in hospital and they threatened his parents that he should leave do not seem plausible given the ‘heavily armed’ Maoists could have killed him when they abducted and detained him if they had wished to eliminate him. The Tribunal considers that the evidence indicates that [the applicant] was of interest to the Maoists at this time because he was [an occupation 1] at a [business] that they wished to see closed (an objective they achieved), not that he was a ‘prime target’ of Maoists because of any specific political activities he was undertaking in opposition to them. The Tribunal considers that the evidence does not indicate that [the applicant] ran away from the custody of the Maoists (as he claimed in his submission in support of the review application), rather he stated that after he was released the Maoists assisted him for 7-9 hours to return to the [business], where he was received by the local villagers.
Time in Kathmandu from late 2003 until November 2008
At the hearing the Tribunal queried [the applicant] that from his evidence he seemed to be indicating that he went to Kathmandu in late November or early December 2003. He replied ‘yes’ and indicated that he stayed in Gulmi district for a couple of weeks after he was released and then left for Kathmandu. The Tribunal noted that in his statement of 30 May 2014 he did not indicate that he experienced any issues with Maoists in the nearly five year period during which he lived in Kathmandu prior to coming to Australia on a [temporary] visa in November 2008, apart from having a fear that he would be kidnapped and killed if he saw groups of men, and shifting rented rooms regularly (4 times a year) due to concern that Maoists might get information about his activities. The decision record of the first Tribunal indicates that [the applicant’s] own evidence indicated that he suffered no harm or threats from Maoists during his time in Kathmandu from 2004 until he left for Australia in 2008, and that he stated in the interview with the delegate that in Kathmandu he held a general fear as a result of the security situation, and the fact that bombs went off.
At the hearing [the applicant] indicated to the Tribunal that he studied towards [another qualification] at [named] University in [Kathmandu] from 2005 until 2008, attending the campus, and also worked at [Business 1] in [Town 1] from 2004 until 2008. When asked he indicated that he had not undertaken any other employment in Nepal. The Tribunal considers his evidence did not indicate or suggest [the applicant] was in hiding during the nearly five years he spent in Kathmandu before coming to Australia.
The Tribunal asked [the applicant] if he experienced any issues with Maoists while he was in Kathmandu. He replied that he didn’t mention this last time but after a couple of months he started a business in Kathmandu. He said he borrowed some money and started a small shop. The Tribunal queried [the applicant] that earlier in the hearing he had indicated that he did not undertake any other work apart from the two [occupation 1] jobs. He said he ‘tried to differentiate that’ and he worked as [an occupation 1] and started a [shop] as a side business. He said he had to close the shop after two months because the Maoists were asking for money and he had to pay money to them after he closed it as well. He commented that he then moved to the [Town 1] area which was very safe as the national army were there. He indicated that the [place] where he [worked] was there, and he had no problems there because it is ‘a little bit safe’. He commented that [Business 1] was owned by the person who is now [an official] of the Nepali Congress and he lived very close to the [business]. He said he felt some relief living and [working] there and the rest of the time he went to the University.

In this context, the Tribunal asked [the applicant] why his initial statement said he had to shift rented rooms four times a year. Rather than moving four times a year because of concerns Maoists might get information about his activities, as indicated in his initial statement, [the applicant] indicated that after the shop was closed and money was taken he moved and then he moved another three times after that, over the nearly five years he was in Kathmandu.
The Tribunal queried [the applicant] that he indicated in his submission in support of the review application that he was able to run away from the custody of the Maoists and was in hiding up until he decided to come to Australia to save his life. He commented that if he has ‘told that’ it is wrong and indicated he was released by the Maoists in 2003 due to negotiation. He added that it was just temporary as a strategical game for them and if the villagers had not taken that initiative they did not know what would have happened and some [workers] were killed in other parts of the district. He commented that the terror incidents were increasing through 2003 to 2005 and 2006, including against the police and army camps and now there are still attacks occurring in Nepal by an underground Maoist group against the big traders.
The Tribunal also queried [the applicant] that the letter dated 4 June 2015 from his brother states that he was a person the Maoists had targeted to be killed. The Tribunal commented that from what he has told the Tribunal it does not seem like the Maoists had targeted him to be killed at any time really, but certainly not while he was in Kathmandu. He replied that he had not told the last Tribunal that he had started a business. He said when the Maoists knew he was starting a shop they came and told him to shut it down and to pay all the money to them. He said he was told you can’t run any business as you are our enemy, so he decided to shut down the business. He said they took [amount] Nepali rupees from him as well, and told him that if he stayed there they would kill him. He said he went to talk with the [manager] of the [business] and sold the [business] some of his stock.
The Tribunal queried [the applicant] why he had not raised this matter previously, over a period of many years. He said he had a traumatic disorder and was under medication for 6 or 7 years and he didn’t remember this incident so did not submit anything about it but it was not his intention to hide the matter, he remembers it now and that is why he has now told the Tribunal about it.
The Tribunal did not find [the applicant’s] evidence regarding having opened a small shop/business when he came to Kathmandu to be convincing. The Tribunal does not accept that if this occurred, and [the applicant] was ordered by Maoists to close the shop, pay all the money to them, and to leave the area of Kathmandu he was living in or he would be killed, he would not have mentioned this previously, either in his statement of 30 May 2014, at the interview with the delegate on the same date, in his review submission, or at the hearing with the first Tribunal. The Tribunal does not accept that he forget this incident all that time because he had experienced trauma and has been taking medication. The Tribunal finds that [the applicant] has concocted this claim in an attempt to suggest that he was targeted by Maoists in an ongoing fashion when there had been nothing in any of his previous evidence to indicate or suggest this was the case. The Tribunal does not accept that there is anything in his previous evidence, including the letter of 4 June 2015 from his brother, to substantiate the claim that he opened a small shop in Kathmandu, received repeated death threats from Maoists, or was targeted to be killed by Maoists anywhere in Nepal, including in Kathmandu (or that Maoists indicated to his brother they would find him and take action if they found he was hiding in India, as claimed in his review submission). The Tribunal considers that if Maoists had targeted [the applicant] to be killed, they could easily have located him while he was working at [Business 1] or attending [named] University in Kathmandu over the nearly five year period he resided in Kathmandu from late 2003 until he came to Australia on a [temporary] visa with his wife in November 2008.
Risk of harm from Maoists should he return to Nepal
At the hearing the Tribunal put to [the applicant] that it had considered country information regarding the situation in Nepal, in particular information drawn from the most recent DFAT Country Information Report for Nepal,[16] and information from the last two assessments (for 2018 and 2019) prepared by the South Asia Terrorism Portal (SATP) for Nepal.[17] The information drawn from the DFAT report (emphasis added) is summarised as follows:
[16] DFAT Country Information Report Nepal, 1 March 2019, sections 2.1-2.9, 2.41, and 3.41-3.45.
[17] SATP Nepal: Assessment – 2018, SATP Nepal: Assessment- 2019, History
·In 1996 the Unified Communist Party of Nepal (Maoist) (UCPN-M) began a nationwide violent insurgency against the government leading to a ten-year civil war. Almost 18,000 people were killed and over 1,300 disappeared before a peace accord was struck in 2006 following an agreement between the Maoists and an alliance of seven Nepali political parties.
·In February 2005 the then-king assumed absolute power in a coup supported by the army. A people’s movement in April 2006 and a joint alliance of democratic parties and the Maoists forced the king to relinquish direct rule. Parliament subsequently agreed to abolish monarchical rule, and Nepal became a republic in 2008 with the election of the first Constituent Assembly.
·The Maoists formed the first government, which proved to be short-lived, resigning in May 2009. A coalition government was then formed until it, too, resigned in July 2010. In September 2011, Dr Baburam Bhattaerai of the UCPN-M party formed government with the Madhesi alliance from the Terai. Political stalemate and questions concerning Nepal’s federalist structure and how to accommodate ethnic and linguistic minorities led to the dissolution of the first Assembly in 2012.
·After repeated delays, elections for the second Constituent Assembly were held in November 2013. International observers described the elections as free and fair, with a voter turnout of 78 per cent despite threats of violence by a break-away Maoist group. The Nepali Congress (NC) and the Communist Party of Nepal (Unified Marxist-Leninist) or CPN (UML) were elected to govern Nepal under a coalition agreement that gave them an almost two-thirds majority in the Assembly. The UCPN-M, which had led the insurgency and had dominated the 2008 election, managed to secure only 80 of the 575 directly elected seats.
·An 85 per cent majority vote by Constituent Assembly lawmakers on 16 September 2015 approved a new Constitution which was subsequently promulgated on 20 September 2015. The new Constitution was agreed upon after considerable negotiation and delays. The political stalemate surrounding the development of a new constitution had ended in June 2015 when the four major political parties agreed to proceed with negotiations, focusing on the key points of federalism, the form of government and elections, and the judiciary. Under the new Constitution, Khadga Prasad Oli of the CPN-UML was elected Prime Minister in October 2015.
·Several changes of government, including realignment of coalitions, resulted in two further changes of Prime Minister before national elections were held over two phases in November and December 2017. These saw landslide results in favour of the Left Alliance comprised of the CPN-UML and the CPN-Maoist Centre parties. The two parties merged in early 2018 to form the Nepal Communist Party (NCP), which now holds a close to two-thirds majority in the Federal Parliament, led by Prime Minister KP Oli for his second term. The coming years will see Nepal’s complex transition to a new federalist system.
Security situation
·The overall security situation throughout Nepal has dramatically improved since the end of the conflict. However, poverty, unemployment, weak rule of law and a culture of impunity are causes of insecurity in Nepal.
·Nepal has enjoyed several years of political stability. A lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected.
·DFAT assesses the risk of a return to widespread violence is low.
·While the two main Maoist parties have merged, the movement has a history of internal splits and the ideology of the two main groups, while merged, is inconsistent.
Fear of Maoists
·Maoists have the potential to control the national agenda without resorting to violence.
·In general, DFAT assesses that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants.
The information drawn from the SATP reporting is summarised as follows (emphasis added):
·Nepal did not witness any insurgency related fatalities in 2018, maintaining the trend established way back in 2013.
·According to partial data compiled by the South Asia Terrorism Portal (SATP), the country recorded 11 fatalities (10 civilians and one Jantantrik Terai Mukti Morcha, JTMM, cadre) in six incidents in 2012.
·At its peak in 2002, the insurgency saw 4,896 persons, including 3,992 Maoists, 666 Security Force personnel and 238 civilians, killed in a single year.
·Kathmandu has done exceedingly well to sustain the environment of peace established since the Comprehensive Peace Agreement of 2006.
·However, though the insurgency has subsided, Nepal continues to witness significant political turmoil and occasional violence.
·According to partial data compiled by SATP, at least two civilians were killed and 51 persons, including 47 civilians and four SF personnel, have been injured in violent clashes across the country through 2018. A member of the Tarun Dal, youth wing of Nepali Congress (NC), Rohit Pun, was shot dead in Rolpa District on September 9, 2018. The assailant opened fire at Pun when he reached Sulichaur to inaugurate Pandeswori Transport Private Limited. Dev Bahadur Ghartimagar, considered close to the Nepal Communist Party, was arrested along with a weapon, for his involvement in the killing.
·18 persons, including 17 civilians and one SF trooper, were killed and another 175, including 156 civilians and 19 SF personnel, were injured, through 2017. In 2016, six persons, including five civilians and one SF trooper, were killed and another 16, including 13 civilians and three SF personnel, were injured in violent clashes. In 2015, at least 57 persons, including 38 civilians and 19 SF personnel were killed and another 700, including 544 civilians and 156 SF personnel, were injured in violent protests. T
·Significantly, after an interregnum of 20 years, local level elections were held in Nepal in 2017. The last local elections in Nepal had been held in 1997. After a gap of 18 years, the House of Representative (HoR) and Provincial Assembly (PA) elections were also held in 2017. This is for the first time that elections for the HoR and PA are being conducted under the new Constitution adopted on September 20, 2015. The last parliamentary poll was held in 1999.
·The successful completion of elections indicates that the country’s political transition is likely to be completed in the foreseeable future.
·The newly appointed Chief of Army Staff Purna Chandra Thapa, on September 9, 2018, noted that some of the ‘elements’ that did not lend support to the Constitution promulgated in September 2015, had shown signs of fomenting trouble to destabilise the country. “These elements are working against national interest, albeit their activities are being closely monitored. The state is doing all it can to resolve this problem,” Thapa stated.
·On February 7, 2019, an unidentified group exploded three improvised explosive devices near the powerhouse of the under-construction Arun III Hydro Power Project, which is being developed with India's assistance, in Sankhuwasabha District. Rameshwor Pandit, Police Inspector of the District, disclosed, “A total of three bombs exploded at the power plant of the hydel project located in Pukhuwa of Chichila Rural Municipality-03 of the District. The group behind the blast is yet to be identified.”
The Tribunal commented that these reports indicate that the situation in Nepal has improved dramatically since he was there, particularly since 2013, there had been many significant changes, and the situation appears to be positive. The Tribunal asked [the applicant] why, given that context, he thought he would have problems if he returned to Nepal now. [The applicant] replied that the reporting is subjective media propaganda and the objective reality is different. He commented that after the landslide victory of the communists there is an increase in leftist propaganda which is a threat to the right wing of politics. He said there is an ideological war which is not the way to maintain peace but is the way to a dictatorship. He added that business centres have been hit by the left wing which is the real nature of communist ideology and people are still being kidnapped in rural areas if they do not follow the communist ideology. [The applicant] said there is also still a threat from underground leftists, who had hit the Ncell tower because they are attacking foreign investment. He commented that his case is different because he started a business.
The Tribunal has considered the Aljazeera article of 21 April 2019 submitted by the representative which indicates that a new Maoist force, fed by popular disillusionment and anger, is growing in strength, posing a major threat to Nepal’s new leadership. The article comments that initiatives by the government to transform Kathmandu into a global trade capital while failing to provide basic necessities has led to discontent among some Maoists and a splinter group, led by Netra Bikram Chand, has been engaging in both peaceful and violent activities, including the planting of a bomb at the Arun III Hydro Project, which is being developed by an Indian company; the targeting of Ncell, a ‘telecommunications giant’ that ‘has been flouting a court order to pay the national treasury more than a billion dollars in unpaid taxes’; and the bombing of the house of the chairman of a union of labour exporting firms, whom they called a ‘human smuggler’. The report indicates that the group openly accepted responsibility for the Ncell attack but apologised for the killing of a bystander. The report further indicates that the government banned the group on 12 March 2019 and has arrested a numbers of supporters. A March 2019 report in The Diplomat magazine comments that the government decided to declare the Chand-led Maoist party a criminal group and curb its activities after repeated fruitless attempts to hold dialogue with Chand. The Diplomat report comments that Nepal needs huge foreign investment and the violent activities of Chand’s Maoist party will affect the investment climate, particularly as it has targeted multinational business endeavours in the country.[18] The Tribunal has also considered the most recent SATP ‘datasheet’ (to 13 November 2019) which indicates that after 6 successive years (since 2012) of reporting no insurgency related deaths, there have been nine deaths in 2019, comprising eight terrorists/insurgents/extremists, one member of the security forces and one civilian.[19]
[18] ‘Are the Maoists Rising Again in Nepal’, The Diplomat, 13 March 2019, SATP, Datasheet – Nepal, Yearly Fatalities (data till November 12 , 2019) >
Having carefully considered the relevant country information the Tribunal finds that the current risk of harm to civilians due to insurgency related violence is miniscule – there has been only a single death reported since 2013. While the Tribunal accepts that the emergence of a disaffected Maoist splinter group not prepared to work within the democratic system is concerning, the Tribunal notes that, at this stage, the group is focused on large scale foreign investors, those perceived to be avoiding large scale tax obligations, and perceived labour exploiters. The Tribunal notes that the group apologised for the civilian casualty – a bystander killed during the Ncell attack. The Tribunal also notes that the government has banned the group and arrested some of its supporters. The Tribunal considers it is speculative to suggest that the emergence of this group heralds a return to a major insurgency in Nepal with large scale casualties, including civilian casualties. The Tribunal considers there is nothing in the reporting to indicate or suggest that [the applicant] would be targeted by this group or any Maoist or communist groups or their supporters operating within the democratic system in Nepal.
In relation to [the applicant’s] concerns that due to the communists having won the 2017 elections in a landslide and controlling districts across Nepal he would not be able to express his political opinions, the Tribunal finds that there is nothing to indicate or suggest that the Nepali Congress party is not still an active participant in the political process in Nepal (it is currently the main opposition party in Nepal).[20] The Tribunal notes the DFAT advice that there is a lively political environment in Nepal which provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected; and DFAT’s assessment that, in general, political opponents of Maoists do not face violence. Based on this advice the Tribunal finds that [the applicant] could engage in peaceful political activities in support of the Nepali Congress party without facing a real chance of serious harm or a real risk of significant harm, if he returned to Nepal.
[20] ‘Opposition party in Nepal warns of strong protest over Media Council Bill’, Business Standard, 16 May 2019, >
Noting that DFAT reporting is drawn from DFAT’s on-the-ground knowledge and discussions with a wide range of relevant and credible open sources as well as protected sources,[21] and that the SATP seeks to establish ‘a comprehensive, searchable and continuously updated database on all available information relating to terrorism, low intensity warfare and ethnic/communal/sectarian strife in South Asia’,[22] the Tribunal does not accept [the applicant’s] criticism that the reporting discussed with him is subjective media propaganda. The Tribunal finds that the reporting indicates that the landslide election win in 2017 of the Left Alliance comprising the CPN-UML and CPN-Maoist Centre parties, now merged to form the Nepal Communist Party (CPN) and holding close to a two-thirds majority in the federal parliament, reflects the democratic will of the Nepali people, rather than a path to dictatorship. The Tribunal considers that the reporting indicates that the government is seeking to encourage investment, including foreign investment, to develop Nepal (transforming Kathmandu into a global trade capital), and it is the now outlawed splinter group which is opposing some multinational business endeavours. [The applicant] has not provided any information to support his assertion that people are still being kidnapped in rural areas if they do not follow communist ideology and the Tribunal prefers the country information cited above which indicates that an individual’s membership of a political party, their ability to be identified as a member, and to be politically active, is generally respected; and DFAT’s assessment that the risk of a return to widespread violence in Nepal is low.
Health issues
[21] DFAT Country Information Report, Nepal, 1 March 2019, section 1.4.
[22] SATP, About-SATP, type="1">
At the hearing the Tribunal asked [the applicant] about his health issues. He said he had been under medication for PTSD, depression and anxiety. Noting that the last medical reports provided date back to 2016 and indicated that he was taking [Medication 1] for a mixed anxiety/depressive disorder, the Tribunal asked him if he was still taking [Medication 1]. He indicated that he has stopped taking it. The Tribunal asked him if he was still attending counselling. He indicated he went two months ago and will go again. When asked what he did at counselling sessions he replied that he talks to his counsellor who tells him how to cope with situations and how he is feeling. The Tribunal put to [the applicant] that the DFAT report indicates that basic health services are guaranteed under the Nepali Constitution as a basic right and that Nepal has a variety of public and private health-care facilities including public primary health care centres and district hospitals; as well as private hospitals, nursing homes, private practitioners at clinics or private pharmacies plus community–run hospitals and traditional healers.[23] [The applicant] said he is aware of what the Constitution says but that is not practically exercised. The Tribunal queried [the applicant] that it imagines that medication such as [Medication 1], as a very common drug to treat depression, would be readily available in Nepal. He replied ‘yeah’ but commented that there is a lot of stigma about mental health issues in Nepal and if you go with ‘this thing’ there will be an economic and social problem. He added that the communists are ruling almost all the districts and he is different in his political opinion and if he has to face all these things in front of them it will have a really negative effect on his health as well. He said he has been improving over six-seven years and now it is better but if he returns he will be debilitated and it will also be hard for him to express his opinion.
[23] DFAT Country Information Report, Nepal, 1 March 2019, section 2.18.
The Tribunal accepts that [the applicant] has been taking anti-depressant/anti-anxiety medication for a number of years (and has recently ceased taking this), and has been attending counselling sessions in Australia to help him develop strategies to cope with stressors. While the Tribunal considers that [Medication 1], should [the applicant] require it, would be available in Nepal, the Tribunal accepts that mental health services generally, such as counselling services, would likely be of a poorer quality and less readily available and affordable than in Australia. The Tribunal also accepts that there would likely be community stigma attached to accessing mental health services in Nepal. Given the relevant country information set out above, however, the Tribunal does not accept that [the applicant] will face a threat of harm from Maoists or other communists due to his political opinions or activities, or that he would be targeted by Maoists or communist authorities or Maoists/communists generally because he was seeking to access, taking or in the past had taken anti-depressant/anti-anxiety medication or was accessing counselling services. The Tribunal finds that there is nothing in the evidence or relevant country information to support the claim by the representative that there is a real risk [the applicant] would suffer significant emotional harm if returned to Nepal because when he comes to the notice of the authorities, ‘the system’ could force him into a mental hospital where he could be subjected to degrading treatment such as electric shock therapy and, as such, deprived of his liberty. Accordingly, the Tribunal does not accept that there is a real chance or a real risk that this would occur. The Tribunal finds the representative’s assertion that an unfavourable immigration outcome may trigger a tragic event as [the applicant] has ‘already displayed signs of mental illness’ is speculative and not supported by any current medical evidence.
While the Tribunal accepts that [the applicant] wishes to remain in Australia and that returning him to Nepal may cause him some emotional hardship and upset, the Tribunal does not consider that that there would be any intent by either Australian or Nepalese authorities to cause him mental pain or suffering or extreme humiliation through his return to Nepal.
Capacity to subsist
The representative has also submitted that there is a real risk that [the applicant] would suffer significant economic hardship that threatens his capacity to subsist which would comprise significant harm. It is submitted that [the applicant] faces the prospect of being mistreated and ostracised by society in Nepal if forced to return there because he would face negative attitudes as a member of a particular social group comprising political activists/journalists. It is submitted that he would face great difficulty finding employment commensurate with his education and experience and would be unable to find rental or other accommodation.
The Tribunal considers there is no basis for these assertions. Firstly, [the applicant] is not a journalist – he confirmed this at the hearing. Second, [the applicant] is well educated and has relevant employment skills, having completed a [Qualification 1] in [Subject 1] and part completed [another qualification]. He has good English language skills (the hearing was conducted without the assistance of an interpreter). He was able to obtain employment as [an occupation 1] in private [businesses] in Nepal from the time he completed his [Qualification 1] in 2002 until he came to Australia in November 2008. Third, his evidence indicates that he can seek support from the Nepali Congress party. The Tribunal considers there is nothing in the evidence to indicate or suggest that [the applicant] would not be able to find employment and accommodation in Nepal and would be unable to subsist there.
Conclusion – refugee criterion
After careful consideration of all the available evidence, [the applicant’s] personal circumstances and the relevant country information, and considering [the applicant’s] claims both individually and cumulatively, the Tribunal does not accept that there is a real chance that he would suffer persecution involving serious harm, including being mistreated, kidnapped, beaten or killed, from Maoist and or other communist authorities, Maoist, communist or other leftist political groups and/or their supporters, friends or affiliates and/or members of the Nepali community because of his affiliation with and activities on behalf of the Nepali Congress Party and/or his opposition to communist/leftist ideology. The Tribunal finds that there is nothing in the evidence and country information to indicate there is a real chance [the applicant] will be unable to subsist in Nepal because he will not be able to find employment or accommodation because of the ‘stigma’ associated with being a ‘political activist’. The Tribunal finds that there is nothing in the evidence and country information to indicate that there is a real chance that [the applicant] would be forced into a mental hospital where he would be deprived of his liberty and subjected to degrading treatment such as electric shock therapy.
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 the Refugees Convention. Accordingly, [the applicant] does not satisfy the criterion set out in s.36(2)(a).
Complementary protection
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) of the Act.
In considering whether there is a real risk that [the applicant] will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Nepal, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[24]
[24] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
The Tribunal, having regard to the findings of fact set out above, also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Nepal, there is a real risk that [the applicant] would suffer significant harm in the form of being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment by Nepali authorities, Maoists, communists, other leftists and/or their supporters, friends or associates, the Nepali medical profession, the Nepali community, or anyone else, should he be returned to Nepal.
Accordingly, the Tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit as a Protection visa holder
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.
Paul Windsor

Member

ATTACHMENT A
Relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse or de facto partner and dependent children.

[2019] AATA 6615

22 November 2019

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