1900867 (Refugee)

[2021] AATA 5300

1900867 (Refugee) [2021] AATA 5300 (3 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1900867

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Rachel Da Costa

DATE:3 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 03 December 2021 at 5:10pm

CATCHWORDS
REFUGEE – protection visa – Nepal – fear harm from Maoists – demands for donations – credibility concerns – returnees from the West – professionally trained – extortion and threat to lives – overall security situation in Nepal – possessing skills beneficial to the Australian community – health problems of newborn child – Ministerial Intervention requested –
decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 December 2018 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Nepal applied for the visas on 3 August 2018. The delegate refused to grant the visas on the basis that the applicant were not persons in respect of whom Australia has protection obligations. 

   CLAIMS AND EVIDENCE

   Background

3. The first applicant (‘the applicant’), [name], is a [age] year-old from Nepal. The second applicant, [name], is a [age] year-old also from Nepal and is the applicant’s wife. The second applicant is included as a member of the applicant’s family unit.

4. In his application for a protection visa the applicant provided the following information. He was born in [year] in the Kavrepalanchok District of Nepal. In Nepal he has a father, mother and [number of] brothers. He is married. He speaks, reads and writes Nepali and English and his religion is Hindu. In Nepal he lived in [Neighbourhood 1], Kathmandu Metropolitan City [Ward number], Bagmati province. He has never travelled to any countries other than Australia. He has a [Qualification 1] from [University 1] in Nepal and a Master of [Qualification 1] from [University 2] in Australia. In Nepal, he worked as a [Position 1] for [Employer 1]. In Australia he worked as a [Position 2] and a [Position 3]. He arrived in Australia [in] August 2013 as the holder of a Student visa using his Nepalese passport issued [in] 2012.

   Evidence before the Department

   Protection visa application

5. The applicant’s claims for protection are contained in his protection visa application form and an attached statutory declaration sworn 3 August 2018.

6. In his protection visa application form the applicant makes the following claims:

   ·     The main reason they left Nepal in 2013 is to complete a Master of [Qualification 1]. They also left Nepal to escape from the threats of Maoists who asked for donations.

   ·     They were threatened before they came to Australia. Their family has received threats when they are here in Australia.

   ·     They did not seek help in Nepal because the Maoists are in power and there is no help even if they report to the authorities.

   ·     They cannot move to another part of Nepal because it is not easy to move without further threats. Maoists are everywhere in Nepal.

   ·     If they return to Nepal they will be subject to extortion. Maoists think they have a lot of money with the applicant being an [Occupation 1] and his wife a [Occupation 2]. They will not be able to live peacefully if they return.

   ·     If they return they will face extortion and a threat to their lives. The current government is a communist government and the group who are linked to this government will continue to threaten us. They are in a dangerous situation. If they go back they may not live peacefully.

   ·     The authorities will not provide protection to them as they are controlled by the communist government.

   ·     They cannot relocate to avoid threats. Maoists are in all areas of Nepal and they cannot escape them.

7. In his statutory declaration, the applicant begins by setting out his and his wife’s migration history in Australia.

8. He explains that he came to Australia in 2013 on a student visa. After that visa finished he was granted a subclass 485 visa which was valid until 23 March 2018. In the meantime, his wife was offered a role as a [Occupation 2] and sponsorship via a subclass 482 visa. The application for the subclass 482 visa was lodged on 22 March 2018 with the assistance of a migration agent and the applicant and his wife were granted bridging visas on the same day. The applicant alleges that due to the inaction and negligence of the migration agent, the subclass 482 visa application was refused. The applicant goes on to state that he and his wife were not aware until 30 July 2018, after a new migration agent had been engaged by the sponsor, that the subclass 482 visa application had been refused on 6 June 2018. He goes on to declare that:

   ·     He has now become aware that he and his wife have been unlawful in Australia for almost two months as a result of his former migration agent’s negligence. Because the migration agent did not advise him of the outcome he did not have the option to appeal or regularise his status earlier.

   ·     Now he has knowledge of his unlawful status he would like to engage with the Department and do the right thing.

   ·     Since they cannot go back to their country at this time due to fear of assault and extortion, he would like to apply for a protection visa.

   ·     Before he came to Australia he had completed his [Qualification 1] and started working in a private company. His family also had a retail business and he was working for them as well.

   ·     Before he left Nepal he had faced several demands for donations to local groups connected to large political parties. He refused to fulfil their demands.

   ·     Nepal has a long history of political instability and internal conflict. Due to which local Maoist splinter groups which are connected with some political parties approached them demanding money in the name of donation. Demanding is based on status. After they came to Australia they demanded more money and also threatened their family.

   ·     Since his wife is a [Occupation 2] and he is an [Occupation 1] living in Australia for more than 5 years they might think they can earn hefty of money over here.

   ·     The Maoists believe overseas returnees have lots of money and ask for donations and they cannot be an exception to it. He fears for his life and livelihood if he is forced to return to Nepal now.

   ·     He was under the impression that they would be able to stay on a working visa at least for a few years and subject to peace and security and political stability of the country, would be able to return to Nepal. However their migration agent left them in a dire state. One of the reasons for seeing a protection visa is to have access to the Minister seeking justice. Therefore at this moment they cannot go back to their country due to insecurity.

   The interview

9. On 18 December 2018, the applicant attended an interview with a delegate of the Department to discuss his protection visa application. In that interview, the applicant briefly reiterated his claims about why he fears returning to Nepal and confirmed that he was not a member of a political party in Nepal.

10. In the interview, the delegate explained to the applicant the qualification to the law relating to Australia’s protection obligations arising under ss 36(3) – (5A) whereby Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, a safe third country. The delegate put to the applicant that as a citizen of Nepal he had the right to enter and reside in India pursuant to the terms of the Treaty of Peace and Friendship between India and Nepal[1] and discussed the implications of that with the applicant.

    [1] Made 31 July 1950.

11. The applicant asked for Ministerial intervention on the basis of his migration agent’s conduct. The delegate explained that could only be considered after the Department and Tribunal had made their decisions.

    The delegate’s decision

12. On 19 December 2018, the delegate found that under s 36(3) the applicant has the right to enter and reside in India and has not taken all possible steps to avail himself of that right. The qualifications in ss 36(4) – (5A) do not apply. On that basis, the applicant is not a person in respect of whom Australia has protection obligations and neither is his wife.

    Evidence before the Tribunal

    The review application

13. On 14 January 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a copy of the delegate’s decision to the Tribunal.

    The hearing

14. On 24 September 2021, the applicant’s representative filed written submissions about why India is not a safe third country for the applicant and that he fears significant harm if he goes there. The Tribunal has read and considered those submissions.

15. On 28 September 2021 and 29 November 2021, the applicant appeared before the Tribunal via video to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Nepali and English languages. The applicant was represented by his registered migration agent who attended the first hearing by video but did not attend the second hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

16. The Tribunal exercised its discretion to hold the hearings by video using the Microsoft Teams platform (MS Teams) with the agreement of the applicant. The hearings were held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearings by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.

17. The applicant’s wife did not attend either hearing.

18. At the conclusion of the first hearing, the applicant asked for Ministerial referral. The Tribunal invited the applicant to provide additional submissions in support of his request.

19. On 5 October 2021, after the first hearing, the applicant’s representative provided additional submissions in support of the applicant’s request for referral of his case to the Minister. The submissions make the point that the applicants are skilled professionals whose skills would be of benefit to Australia, the applicant’s wife’s visa sponsorship fell through due to the negligence of a migration agent and the applicant and his wife have recently had a baby who has some potentially serious health problems. The submissions attach the following documents:

    a.CVs of the applicant and his wife;

    b.Registration certificate of the applicant’s wife as a [Occupation 2];

    c.Documents relating to the health problems of the applicant’s newborn child;

    d.A document from the Office of the Migration Agents Registration Authority confirming an investigation was conducted into the migration agent whom the applicant claims was negligent in relation to his wife’s sponsorship and that the migration agent in question has had her registration cancelled;

    e.A letter confirming that the current employer of the applicant’s wife is willing to sponsor her visa application.

    Nationality

20. The applicant claims to be a citizen of Nepal and provided to the Department a copy of his Nepalese passport issued [in] 2012. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Nepal. The Tribunal finds Nepal is his receiving country for the purpose of assessing his claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

21. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

22. 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.

23. 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).

24. 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.

25. 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

26. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Analysis, reasons and findings

27. The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

28. The applicant gave evidence that he completed his protection visa application himself and that the information it contains is true and correct. He pointed out a typographical error in paragraph 3 of his statutory declaration, where the first reference to ‘2018’ in line 2 should be to ‘2016’. The Tribunal noted this.

29. During the hearing, the Tribunal discussed with the applicant his family, education, employment, where he lived in Nepal, his migration history, the problems he had experienced in Nepal and why he fears returning to Nepal. The Tribunal has concerns about the truthfulness of the applicant’s evidence in relation to claimed events in Nepal and did not find him to be a credible witness. The Tribunal found aspects of the applicant’s evidence to be vague and to contain discrepancies and much of the detail he offered about his claims was only after prompting by the Tribunal, all of which undermined his credibility.

30. The Tribunal’s concerns are discussed below.

31. First, the applicant’s evidence about his interactions with Maoists in Nepal raised concerns for the Tribunal.

32. In his protection visa application and statutory declaration, the applicant claimed that in Nepal he had faced demands and threats from Maoists for donations to local groups connected to large political parties. He refused to fulfil their demands.

33. In the interview with the delegate, the applicant referred to Maoists asking for money or donations from people, however he did not refer to specific instances of that having happened to him in Nepal.

34. In the Tribunal hearing, the Tribunal attempted to elicit more detail from the applicant about his claims.

35. The applicant gave evidence that since about 2004 his family has run a [shop] in [Neighbourhood 1], Kathmandu and that is the business they still run now. The applicant’s father used to run the shop but now he works part time and the applicant’s younger brother works there.

36. The Tribunal asked the applicant when it was that the Maoists asked him for donations while he was in Nepal. He responded that they were asking randomly and they only threatened if the donation was not provided. The Tribunal asked the applicant again when the Maoists asked for donations and he responded that they used to provide them with donations and after he came to Australia they demanded more. In an attempt to get more specific detail, the Tribunal asked the applicant how old he was when the Maoists asked for donations and he said he was maybe [age range].

37. The Tribunal asked the applicant where this happened and he said the Maoists came to the shop that his family owned. They would come once or twice a year. The Tribunal asked what would happen when the Maoists came to the shop. The applicant said they would come with letters asking for help for the party. They asked for a donation and the amount was according to someone’s ability to pay. Later, the applicant said if they did not provide the money the Maoists would mistreat them. The applicant said they would tell the Maoists to come back after two or three months because they could not afford to pay straight away. If they didn’t provide the money the Maoists became angry. The Tribunal asked the applicant what would happen after that. The applicant said the Maoists would ask for the money and if they didn’t provide the money the Maoists would torture them and can do physical harm. He can’t say what they might do.

38. Later, the applicant said that if they gave the Maoists some money they would come back in a couple of months. If they provided more money the Maoists would not approach them again for a couple of years. The Tribunal asked the applicant when the last time was that his family was approached and he responded ‘maybe 2019’.

39. The Tribunal asked the applicant how many times he was personally asked for a donation. He said once or twice. He didn’t spend much time at the shop because he was studying and working. The Tribunal asked the applicant whether he gave the Maoists any money. He said yes. The Tribunal asked him how much and he responded that the Maoists came to the shop twice when he was there and he provided around Nepalese Rupees (Rs) 50,000 on one occasion. The Tribunal attempted to clarify with the applicant whether it was actually he who provided the money and he said it was his father who provided the money. The applicant never provided the Maoists with money. The Tribunal asked the applicant whether he was approached by the Maoists anywhere other than the shop and he said he was not.

1. The Tribunal asked the applicant whether he ever suffered any harm from the Maoists. He said no, but after the Maoists came two or three times they spoke to him using bad words. Nothing else. He said it is because they provided the Maoists with money that they hadn’t done physical harm so far. The Tribunal asked the applicant whether he had had any interactions with the Maoists since he came to Australia in 2013 and he said no.

2. The Tribunal had the impression that the applicant had not expected to be asked detailed questions about his claims. He had to be prompted by the Tribunal to provide information and had difficulty providing answers to some of the Tribunal’s questions, which undermined his credibility. More generally, the Tribunal found the applicant’s evidence about his interactions with the Maoists in Nepal to be vague and lacking in the level of detail that would be expected from someone speaking from personal experience. His evidence also contained various discrepancies which also undermined his credibility. For example, the applicant had difficulty saying when it was that he was approached by the Maoists and asked for donations, even though this is a key part of his claim as to why he left Nepal. The applicant gave inconsistent answers about how often the Maoists would come to the family’s shop. For example, at one point he said they would come once or twice a year and at another point he said the Maoists would not approach the family for a couple of years if they were satisfied with the money they had received. He gave evidence that he had given the Maoists some money on one occasion and then said it was his father who had done that and he had never given the Maoists any money. The Tribunal put to the applicant its concerns about various discrepancies in his evidence and explained that this raised doubts about his credibility and whether he genuinely fears harm from the Maoists if he returned to Nepal. The applicant said he had no comment. The applicant’s failure to even attempt to explain the discrepancies in his evidence raises concerns for the Tribunal about his credibility and the truthfulness of his claims.

3. Secondly, in his statutory declaration, the applicant claimed that after he came to Australia, the Maoists demanded more money and threatened his family.

4. In the Tribunal hearing, the applicant was asked whether his family had had interactions with the Maoists since he came to Australia. He said the Maoists have approached his family and tortured them. In mid-2019 the Maoists increased their demands to Rs150,000. He said that if they don’t provide the money the Maoists might or will engage in physical harm. As mentioned above, when the Tribunal asked the applicant when his family was last approached by the Maoists he said ‘maybe 2019’.

5. The Tribunal asked the applicant what he meant by his claim that his family had been tortured. He responded that they had been physically harmed. The Tribunal asked him who had been physically harmed and he said it was his father and mother. The Tribunal asked him when this occurred and he said there hasn’t been any physical harm but if they don’t provide the money then the Maoists might engage in physical harm. The Tribunal asked whether the Maoists had ever engaged in physical harm with the applicant or his family and he said they had not, but they provide mental torture. The Tribunal asked the applicant to explain what he meant by mental torture. He said when the Maoists demanded donations the family used to postpone paying and if they didn’t pay the money the Maoists would get angry and quarrel with them and say anything can happen to them. The Tribunal asked the applicant when this occurred and he said in 2015. The Maoists demanded Rs100,000. His father told the Maoists he could not pay much and so he paid less. The Tribunal asked the applicant whether there was anything else he wanted to say about this and he said that was all.

6. The Tribunal found the applicant’s evidence about his family being threatened by the Maoists after he came to Australia to be unpersuasive and to raise concerns about his credibility. After first claiming his father and mother were physically tortured or harmed, the applicant changed his evidence and said they were not. He then said they were mentally tortured because if they didn’t pay money the Maoists would get angry and say anything can happen to them. These changes in the applicant’s evidence about very serious claims, raise concerns for the Tribunal about his credibility and the truthfulness of his claims more broadly.

7. While the applicant mentioned two occasions on which he claims the Maoists demanded more money from his family, this was in response to questioning from the Tribunal and despite being given the opportunity, he did not offer more detail. The applicant’s inability or unwillingness to provide more detail in relation to the circumstances surrounding this claim raises doubts for the Tribunal about the applicant’s credibility and the genuineness of his claims.

8. The Tribunal put to the applicant its concerns about his evidence, including about whether anyone in his family had suffered harm, and explained that this raised doubts about the credibility of his evidence and whether he genuinely fears harm from the Maoists if he returns to Nepal. The applicant said he had no comment. The applicant’s failure to even attempt to explain the discrepancies in his evidence raises concerns for the Tribunal about his credibility and the truthfulness of his claims.

9. Thirdly, the applicant’s evidence about why he came to Australia contained discrepancies and raises concerns about his credibility.

10. In his protection visa application, the applicant stated that the main reason he came to Australia was to complete a Master of [Qualification 1]. He claimed they also left Nepal to escape from the threats of Maoists who asked for donations.

11. In the interview with the delegate, the applicant stated that he came to Australia to get higher education and to look for opportunities and there were wars in Nepal and to escape from that.

12. In the Tribunal hearing, the applicant gave evidence that he came to Australia for his further education. The study at [University 2] attracted him and he applied for his visa and came. He said that was all. The Tribunal accepts this evidence.

13. The Tribunal put to the applicant its concern about the discrepancies between the information provided in his protection visa application form, the interview with the delegate and to the Tribunal about his reasons for coming to Australia. The applicant responded that in the interview they didn’t ask detailed questions about what had happened and what the situation was. The main focus in the interview was that if he feared the Maoists he could go to India. The Tribunal does not accept the applicant’s explanation. It does not account for why he failed to mention his fear of the Maoists to the Tribunal when asked about his reasons for coming to Australia. In the Tribunal’s view, his failure to mention this raises doubts about his credibility and the genuineness of his claims. 

14. At another point in the hearing when the Tribunal put to the applicant its concern about a potential inconsistency between information he provided to the delegate and evidence he gave during the Tribunal hearing, the applicant responded that the interview with the delegate was a short interview and there was no translator. He said perhaps he didn’t understand and maybe because of that there was a misunderstanding and mismatch in the information. The Tribunal has considered whether this may be a factor in the inconsistent response given by the applicant to the delegate and to the Tribunal about why he came to Australia, however the Tribunal is not satisfied that this is the case. The Tribunal has listened to the recording of the applicant’s interview with the delegate. The interview was conducted in English. Prior to the interview commencing, the delegate confirmed with the applicant that the applicant had told the Department he did not need an interpreter and the applicant confirmed that was correct. The applicant confirmed that he could understand and speak English and confirmed that he wanted the interview to continue in English. The delegate told the applicant to say if he could not understand the questions. The Tribunal does not consider that the applicant had difficulty understanding or responding to the delegate’s questions. Accordingly, the Tribunal does not accept (and the applicant did not claim) that the interview with the delegate being conducted in English accounts for the inconsistency in the evidence given by the applicant about his reasons for coming to Australia.

15. In light of the above concerns, having considered all of the applicant’s claims and evidence, the Tribunal finds that the applicant is not a witness of truth.

16. The Tribunal accepts that the applicant is married, and now has a child, and that prior to coming to Australia the applicant lived in [Neighbourhood 1], Kathmandu, Nepal. The Tribunal accepts that his mother, father and brothers still live in Nepal. The Tribunal accepts that his family has owned and run a [store] in [Neighbourhood 1] since around 2004. The Tribunal accepts that the applicant completed his [Qualification 1] in Nepal and that before coming to Australia he was working as a [Position 1] at [Employer 1]. The Tribunal accepts that the applicant worked in his family’s shop in Nepal occasionally. The Tribunal accepts that the applicant’s wife is a [Occupation 2] and worked as one in Nepal.

17. The Tribunal does not accept that the applicant or his wife were threatened or harmed by Maoists before they came to Australia. The Tribunal does not accept that the applicant was asked for or paid donations to the Maoists while he was in his family’s shop or anywhere else. The Tribunal does not accept that before he came to Australia, the applicant faced several demands for donations to local groups connected to large political parties or that he refused to fulfil their demands. The Tribunal does not accept that they did not seek help because the Maoists are in power. The Tribunal does not accept that the applicant’s father has provided money to the Maoists.

18. The Tribunal does not accept that the applicant’s family was asked for donations by Maoists in their shop or anywhere else before the applicant left Nepal. The Tribunal does not accept that the applicant’s family has received threats since he has been in Australia or that the Maoists have demanded more money from them. The Tribunal does not accept that the applicant’s family have been physically tortured or harmed by the Maoists or that they have been mentally tortured. The Tribunal does not accept that the applicant fled Nepal in fear of being threatened by Maoists or that he fears returning to Nepal for the reasons claimed.

    Do the applicants meet the refugee criterion?

19. In his protection visa application form, the applicant claims that if he returns he and his wife will face extortion and a threat to their lives because he is an [Occupation 1] and his wife is a [Occupation 2] and they have lived in Australia for more than five years and so the Maoists will think they have a lot of money and they may not live peacefully if they return. In his statutory declaration the applicant claims the Maoists believe overseas returnees have lots of money and will ask for donations. He fears for his life and livelihood if he returns to Nepal. In the Tribunal hearing, the Tribunal asked the applicant to clarify what he meant by fearing for his livelihood and he said he fears the Maoists demanding a large amount of money from him. In his interview with the delegate the applicant claimed that if they return to Nepal people might think they have lots of money and might target them and mistreat them if they don’t provide the money. In the Tribunal hearing, the applicant claimed that if they go back, the Maoists will think that he and his wife have earned a lot of money and they will be asked for donations and if they don’t pay the donations the Maoists will give him psychological pressure and physical harm.

20. For the reasons set out above, the Tribunal does not accept the applicant’s claims about having been targeted by Maoists for donations while he lived in Nepal, either at his family’s shop anywhere else, or that his family has been targeted since he left Nepal. However, it remains for the Tribunal to consider whether the applicant and his wife would be targeted by Maoists for donations if they returned to Nepal in the reasonably foreseeable future.

21. The Tribunal asked the applicant what work he and his wife would do if they returned to Nepal in the reasonably foreseeable future. He said that he would either work in a similar type of [Occupation 1] training job connected to [Sector 1] as he did before coming to Australia or possibly start his own business drawing on his training as an [Occupation 1] and focus on [specified niche area]. He said his wife would work again as a [Occupation 2] but he could not say in what context. They would live in Kathmandu. The Tribunal asked the applicant if he would work in his family’s shop if he returned and he said he would not. The Tribunal asked the applicant whether he thought he would be approached by Maoists if he worked again in [Sector 1] and he said probably not. He said he thought that if he established his own business then he would have to have some kind of shop to display items to customers and in that context he was worried that Maoists would approach him at his shop. He said that if that happened he would pay the Maoists according to his capability to pay because if he did not pay they could harm the business and potentially physically threaten him.

22. The Tribunal finds that if the applicant returned to Nepal in the reasonably foreseeable future he would work in the [Occupation 1] training field in [Sector 1] as he did before coming to Australia. This is consistent with his past professional experience in Nepal and his completion of a Master of [Qualification 1] at [University 2]. He has not worked as an [Occupation 1] while he has been in Australia. The Tribunal accepts that the applicant’s wife would work as a [Occupation 2] and that the applicant and his wife would live in Kathmandu. The Tribunal accepts the applicant’s evidence that he will not work in his family’s shop if he returns to Nepal in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant would not be approached by Maoists in the context of his family’s shop and finds that he does not face a real chance of serious harm from those circumstances. The Tribunal also accepts the applicant’s evidence that if he works again in [Sector 1] he would probably not be approached by Maoists for donations. Therefore, the Tribunal finds that the applicant does not face a real chance of serious harm from those circumstances either. As the Tribunal has found that the applicant would not work in a shop, the Tribunal does not accept that he would be approached by Maoists in that context and therefore the Tribunal also does not accept that if he refused to pay the Maoists he would receive psychological pressure or physical harm or that they could harm his business or physically threaten him.

23. Based on the applicant’s claims, the Tribunal has considered whether, as people who have lived and worked overseas, the applicant and his wife would be targeted by Maoists for extortion if they return to Nepal in the reasonably foreseeable future. As discussed with the applicant, country information does not support the claim that Nepalis who have spent time overseas, whether professionally trained or not, are targeted simply for having worked in Western countries and being perceived as wealthy.[2] The applicant’s evidence is that the Maoists think that people returning from overseas have lots of money and so they are an easy target for demands. This is not supported by the country information and the Tribunal does not accept it. The Tribunal finds that the applicant and his wife do not face a real chance of serious harm arising from these circumstances.

    [2] DFAT Country Information Report Nepal 1 March 2019 5.36 – 5.37

24. The Tribunal has also considered whether as an [Occupation 1] and [Occupation 2] living in Nepal, regardless of them having lived overseas, they would be approached for donations. The Tribunal notes that the applicant has not claimed that he and his wife would be approached by Maoists outside the business context, for example, at home. Neither he nor his wife have claimed that she was personally ever approached by Maoists in the past and while the applicant gave evidence, which the Tribunal accepts, that she would resume her work as a [Occupation 2] in Nepal, he was not able to say what form this work might take.

25. As discussed with the applicant during the hearing, country information from 2019 indicates that forced donation occurs and is generally seen as part of ‘doing business’ in Nepal.[3] Country information does not indicate that that the problem of extortion by Maoists has escalated in the years since the applicant and his wife left Nepal. Nor does it indicate that the problem is worse in Kathmandu than in other parts of Nepal. In the Tribunal hearing, the Tribunal asked the applicant who he thought would harm him if he went back to Nepal. He said that it would be organisations connected to the Maoist party. Country information indicates that at least since around 2015, the most prominent group engaging in extortion activities was the Communist Party of Nepal, also known as the Biplav group.[4] In 2019, the government declared this group a criminal group and many of its leaders and cadres have been arrested and imprisoned.[5] More recent country information from 2021 indicates that in March 2021, the Biplav group signed an agreement with the Nepal government and made a commitment to carry out its political activities in a peaceful manner.[6] The Tribunal discussed this information with the applicant and asked him if he wanted to comment. He said he did not. In light of the Tribunal’s findings that the applicant and his family were not approached by Maoists for donations before the applicant left Nepal, that the applicant’s family has not been approached for donations since the applicant left Nepal, that the problem of businesses and other entities being approached for donations has not escalated in the time since the applicant left Nepal, that the government has taken action against the main group undertaking these activities, that the group has agreed with the government to undertake its activities in a peaceful manner and the Tribunal’s findings about the work the applicant and his wife would do if they returned to Nepal, the Tribunal finds that the applicant and his wife do not face a real chance of serious harm arising from these circumstances if they returned to Nepal in the reasonably foreseeable future.

    [3] DFAT Country Information Report Nepal 1 March 2019, 3.87

    [4] >

    The Tribunal has also considered the applicant’s broader claim that he could not return to Nepal because of insecurity and wars, even though he made it clear in the Tribunal hearings that his reason for wanting to stay in Australia is his fear of extortion by the Maoists (and now the medical situation of his child). Country information discussed with the applicant indicates that the overall security situation in Nepal has improved dramatically since the end of the conflict with the Maoists and that Maoists have the potential to control the national agenda without resorting to violence.[7] The Tribunal finds that the country information does not support the applicant’s claims about insecurity and wars and the applicant and his wife do not face a real risk of serious harm arising from these circumstances they returned to Nepal in the reasonably foreseeable future.

    [7] DFAT Country Information Report Nepal 1 March 2019, 2.41, 3.45

1. Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant and his wife return to Nepal now or in the reasonably foreseeable future that they face a real chance of serious harm from Maoists, or for any reason set out in s 5J(1)(a) of the Act, or for any other reason.

2. Accordingly, the Tribunal is not satisfied that the applicant or his wife have a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant or his wife has a well-founded fear of persecution, it is not satisfied that the applicant or his wife meet the definition of refugee in s 5H(1). As the applicant and his wife do not meet the definition in s 5H(1), the Tribunal is not satisfied they are persons in respect of whom Australia has protection obligations under s 36(2)(a).

   Do the applicants meet the complementary protection criterion?

3. As the Tribunal has found that the applicant and his wife do not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant and his wife meet the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).

4. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[8] for the same reasons as those set out above, the Tribunal finds that the applicant and his wife do not face a real risk of significant harm from Maoists or for any other reason. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant and his wife being removed from Australia to Nepal, there is a real risk that they will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant or his wife are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

   [8] MIAC v SZQRB [2013] FCAFC 33

   Conclusion

5. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

   Request for referral to the Minister

6. As mentioned above, the applicant requested that the Tribunal refer his case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant requests that in light of his personal circumstances, including he and his wife possessing skills that would be of benefit to the Australian community, the fact that his wife’s sponsorship as a [Occupation 2] was unsuccessful due to the negligence of a migration agent whose registration has subsequently been cancelled, the employer of the applicant’s wife being willing to sponsor her and the potentially significant health problems of the applicant’s young baby, the Minister intervene to permit the applicants to apply for other types of visas while remaining in Australia. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ and has decided to refer the matter for consideration.

   DECISION

7. The Tribunal affirms the decision not to grant the applicants protection visas.

   Rachel Da Costa
   Member

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)     that is not inconsistent with Article 7 of the Covenant; or

   (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)     that is not inconsistent with Article 7 of the Covenant; or

   (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)     for the purpose of intimidating or coercing the person or a third person; or

   (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K    Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L    Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)     the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …