1903486 (Refugee)

1903486 (Refugee) [2021] AATA 5083 (17 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1903486
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Rachel Da Costa
DATE:17 November 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 17 November 2021 at 4:53pm
CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – extortion attempt and threats from members or supporters of rival political party – credibility – vague and implausible claims and evidence – limited activity and incidents before first departure – claimed incident occurred on return visit – no threats or harm to family members after second departure – country information – application for student visa invalid – members of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulation 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 January 2019 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Nepal, applied for the visas on 7 September 2017. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
[The first applicant (the ‘applicant’)] is a [age] year-old from Nepal. [The second applicant] is a [age] year-old also from Nepal and is the applicant’s wife. [The third applicant] is a [age] year-old also from Nepal and is the applicant’s younger son. The second and third applicants are included as members of the applicant’s family unit.
In his protection visa application form the applicant provided the following information. He was born in [Town 1], Palpa district, Nepal on [date]. He speaks, reads and writes Nepali and English. He is married and has two sons. His older son is in Nepal studying and his younger son is in Australia. His father, mother and brother all live in Nepal. Prior to coming to Australia in January 2009 he had lived in Lalitpur, Nepal since April 1997. In Nepal, he completed school in the Palpa district and then studied at [a] University in Kathmandu, completing a Bachelor of [Subject 1] in July 1999. In Australia, he completed an Advanced Diploma of [Subject 2] in December 2010, an Advanced Diploma of [Subject 3] in October 2013 and a Bachelor of [Subject 3] in June 2015. From July 2015 to August 2017 he worked as [an Occupation 1]. His current passport was issued by the Embassy of Nepal in Canberra [in] 2015. His most recent date of arrival in Australia was [in] February 2017.
Evidence before the Department
Protection visa application
The applicant’s claims are set out briefly in his protection visa application form and in more detail in a typed statement attached to his protection visa application. The applicant claims as follows:
·     In February 2017 he went to Nepal to visit his parents, friends and relatives in preparation for moving back to Nepal permanently after 8 years in Australia.
·     When he was in Nepal the situation suddenly became too dangerous for him. He was going to Kathmandu from his home village to see his elder son who is studying there. Some people who called themselves supporters of the Nepal Communist Party (Maoist) asked him for money. He said he was from an ordinary family and could not give them money. They threatened him and told him they knew him well, where he came from and his family background and that if he did not give them money anything could happen to him and it would be his fault.
·     Although the Maoist party had joined the peace process and was in the government it appeared to him that their behaviour had not changed. When they were fighting they used to come to his home and give him and his parents trouble.
·     He is a supporter of the Communist Party of Nepal (UML). The Maoists usually target the supporters of other parties. They think he has a lot of money because he was living in Australia.
·     He tried to inform the police but they didn’t register his complaint. After this he feared the police were protecting the Maoists who target innocent people like him.
·     Because of what happened he came back to Australia earlier than he planned. Once he arrived here he was thinking of applying for a protection visa for his safety but he was also waiting for his younger son to arrive in Australia.
·     When his son arrived, the applicant thought he would continue his study and complete a Masters degree and return to Nepal after that if the situation was favourable.
·     He recently applied for a student visa with an offer letter for a Master of [Subject 3] as his visa was due to expire soon. The Department considered his application was invalid.
·     Now he has no choice. He cannot return to Nepal because of his safety. He feared for his life after the incident and now he wants to apply for a protection visa.
The interview
On 21 January 2019, the applicant attended an interview with a delegate of the Department. In the interview, the applicant responded to questions from the delegate and reiterated his claims.
In the interview, the delegate explained to the applicant the qualification to the law relating to Australia’s protection obligations arising under ss 36(3) – (5A) whereby Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, a safe third country. The delegate put to the applicant that as a citizen of Nepal he had the right to enter and reside in India, pursuant to the terms of the Treaty of Peace and Friendship between India and Nepal[1] and discussed the implications of that with the applicant.
The delegate’s decision
[1] Made 31 July 1950.
On 22 January 2019, the delegate found that the applicant has statutory effective protection in a third country (namely, India) as set out in s 36(3) and on that basis the applicant is not a person in respect of whom Australia has protection obligations. Therefore, the other members of the applicant’s family unit are also not persons in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The review application
On 15 February 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant included a copy of the delegate’s decision with his application.
The hearing
On 31 August 2021, the applicant’s representative filed the following documents with the Tribunal:
a.submissions about why India is not a safe third country for the applicant and that the applicant fears significant harm if he goes there;
b.an additional statement from the applicant that reiterates his claims, provides some additional detail about the location of the claimed incident, addresses the applicant’s reason for choosing Australia as the country in which to seek protection, his reasons for not being able to enter and reside in another country such as India, why he disagreed with the delegate’s decision and why he is unable or unwilling to return to Nepal. The statement also makes the new claim that his parents say that some unknown people have come and asked about him.
c.country information comprising a newspaper article from 2020 which discusses the Nepalese government’s failure to put in place an appropriate transitional justice process to deal adequately with the aftermath of the Maoist insurgency; newspaper articles from 2019 relating to crimes being committed by cadres of the Netra Bikram Chand-led Communist Party of Nepal (CPN) including the murder of a teacher, extortion, kidnapping of a government lawmaker and the planting of bombs to target a telecommunications company; a newspaper article from August 2021 about an incident in the remote Darchula district of Nepal where India and Nepal have a border dispute, describing a man dying while trying to cross a river that forms part of the border after an alleged act of sabotage by an Indian official; and the Nepal 2019 Human Rights Report by the United States Department of State.
The Tribunal has considered these submissions and documents and where relevant, refers to them below.
The Tribunal exercised its discretion to hold the hearings by video using the Microsoft Teams platform 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 hearings were not to be conducted by video.
On 7 September 2021 and 5 October 2021, the applicant appeared before the Tribunal via video to give evidence and present arguments. An interpreter in the Nepali and English languages was present at the hearings to assist. The applicant was represented by his registered migration agent who also attended the hearings by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Nationality
The applicant claims to be a citizen of Nepal and provided to the Department a copy of his Nepal passport issued [in] 2015. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Nepal. The Tribunal finds Nepal is his receiving country for the purpose of assessing his claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed, albeit for different reasons from those found by the delegate.
The applicant gave evidence to the Tribunal that he completed his protection visa application with the assistance of his representative and that the information it contains is true and correct.
During the hearings, the Tribunal discussed with the applicant his family, education, employment, where he lived in Nepal, his migration history, the problems he experienced in Nepal and why he fears returning there. The Tribunal found aspects of the applicant’s evidence to be lacking in detail and implausible, which undermined the applicant’s credibility. The Tribunal finds that the applicant’s profile does not support his claimed reasons for fearing harm if he returned to Nepal in the foreseeable future.
The 2017 incident
The applicant confirmed to the Tribunal that it was the claimed incident in February 2017 that forms the basis of his claims to fear harm from the Maoists if he returned to Nepal in the foreseeable future.
In his written statement, the applicant claims that on a visit to Nepal in February 2017, he was returning from his village to Kathmandu when some people who called themselves supporters of the Nepal Communist Party (Maoist) asked him for money. He said he was from an ordinary family and could not give them money. They threatened him and told him they knew him well, where he came from and his family background and that if he did not give them money anything could happen to him and it would be his fault. The applicant claims he was targeted because he is a supporter of the Communist Party of Nepal (UML) and the Maoists usually target the supporters of other parties. He also claims they think he has a lot of money because he was living in Australia.
In the Tribunal hearing, the applicant gave more detailed evidence about this incident. He claimed that he was with a driver in a van travelling from Palpa (the district of his village) to Butwal, which is the town where he was going to catch the bus to Kathmandu. The journey by road from his village to Butwal is about 2.5 hours. They were driving through the jungle when a group of five people stopped the van. The person who was maybe the leader asked him if he was [the applicant]. He dragged the applicant from the van and started to threaten him verbally. He said ‘You are supporter of the Communist Party of Nepal – United Marxist Leninist. We asked you to join our army and you always denied. You never helped us. Our party has decided you have to give money as a donation. If you do not do this anything can happen wherever you go. We will chase you and may kill you.’ He asked the applicant for 3 million Nepalese rupees (‘Rs 3 million’). The applicant was scared and thought he would die. He didn’t argue with them. He explained to them that he is in Australia to study. He is not wealthy. The man dragged the applicant by the left arm and threw him to the ground. Maybe 10 or 12 other people came out of the jungle and didn’t do anything. The man threatened the applicant again that he had to pay the money within two weeks and said that if the party does not get the money anything can happen to you. Then the group went up the hill back into the jungle. The group did not threaten the driver. The applicant and the driver then continued their journey to Butwal which was approximately 30 minutes away.
The Tribunal has a number of concerns about the applicant’s evidence relating to this claimed incident and its motivation. These are discussed below.
First, during the hearing the Tribunal discussed with the applicant his political background.
In his written statement the applicant claims that he is a supporter of the Communist Party of Nepal (United Marxist Leninist) (‘CPN-UML’) and that the Maoists usually target the supporters of other parties. He reiterated this claim in his interview with the delegate.
In the Tribunal hearing, the applicant claimed that he was ‘actively involved’ in the CPN-UML. He gave evidence that he was first a supporter of the party when he lived in his village and then he became a member sometime before he came to Australia. He could not remember exactly when but said it was perhaps around 1999. He showed his support by getting involved at election time. In 1991 and 1994 he was not involved and just observed but in 1999 and 2008, by which time he was living in Kathmandu, he got involved.
His involvement consisted of travelling back to his village about one week before the election and attending meetings in his village to discuss the party’s plan for the election and going door to door in his village and nearby villages to convince people to vote for the party’s candidate. He did this as part of a group. After he had voted he returned to Kathmandu where he lived. Attending meetings and going door to door were the only activities he was involved in. He and the other people involved never had any problems with the Maoists during this time. Since leaving Nepal in 2009 he has not been actively involved in politics. He sometimes used to keep in touch with his uncle about what was happening and who the candidates were but that is all.
The Tribunal is prepared to accept that the applicant was involved in political activities in his village as he described. The Tribunal accepts that he was involved in politics in his village in the week leading up to the elections in 1999 and 2008 but finds that he was not active politically at other times. The Tribunal accepts the applicant’s evidence that he did not have any problems with the Maoists as a result of his political activities (prior to the claimed 2017 incident) and that he has not been actively involved in politics since leaving Nepal in 2009. On this basis, the Tribunal finds that the applicant generally had a low political profile in his village, which may have increased moderately for a short period at election time in 1999 and 2008, but he was not a person of particular political influence in his village or anywhere else.
Secondly, the applicant’s evidence about the nature and extent of his contact with the Maoists in Nepal prior to 2009 raised concerns for the Tribunal.
In his written statement and his interview with the delegate, the applicant claims that when the Maoists were fighting they used to come to his home and give him and his parents trouble.

In the Tribunal hearing, the applicant gave evidence when he was in his village area the Maoists were fighting and they always came to his house and forced his family to cook them food. They used to come at night and tried to force him to join their army and he rejected them so they targeted him and want to take revenge on him. Later, he gave evidence that from around 1996 or 1997 the Maoists used to come to their village and to their house at night sometimes. When they came was not regular and it was perhaps around six times per year. When they came to the house, they would wake up the applicant’s parents and tell them to cook food for the number of Maoists who were in the group, then the Maoists would eat the food and go away. They did not stay long; maybe an hour or two.
The Tribunal asked the applicant whether he was ever there when the Maoists came, given he was living in Kathmandu by this time attending university. The applicant responded he was there twice when the Maoists came and his parents cooked for them. This was in 1996. During these visits the Maoists asked him to join them. He also gave evidence that twice, earlier in 1996, the Maoists came to the village when he was there and they tried to get him to join their group and he refused. The Tribunal asked the applicant if there was anything else he wanted to tell it about the Maoists approaching him to join them and he said no. The applicant gave evidence that the Maoists never harmed him during these encounters.
At several points during his evidence to the Tribunal the applicant claimed that the reason, or one of the main reasons, the Maoists targeted him in the 2017 incident was because he refused to help them and join them in the past (the Tribunal considers the applicant means the same thing when he refers to refusing to help them and join them and refusing help them and to join their army), and because they think he never helped them they want to take revenge on him. This is discussed further in paragraphs 53 to 59 below.
The Tribunal put to the applicant its doubts that the Maoists would still be interested in him after such a long time. The applicant responded that they wanted to take revenge because he did not help them and he refused to join their army. The Tribunal also put to the applicant its doubts about whether his claimed interactions with the Maoists were so significant that it would make him a target for revenge so many years later. The applicant responded that he never supported them when they came to his home and he used to oppose their demands.
The Tribunal finds the applicant’s evidence to be unconvincing and to raise concerns about his credibility and the genuineness of his claims. His initial evidence gave the impression that he regularly had contact with the Maoists over an extended period of time when they came to his house at night and forced his family to cook for them, however when pressed for more specific detail by the Tribunal he gave evidence that he only ever encountered them on four occasions in 1996 and only two of these occasions involved his parents cooking for them. The Tribunal found the applicant’s evidence about his interactions with the Maoists in 1996 to be lacking in detail despite being given the opportunity to elaborate. For example, he did not provide detail about who approached him to join them or how, what they said to him or what he said to them and how it made him feel. The Tribunal also notes his evidence that he was never harmed by the Maoists during these claimed encounters.
The Tribunal is prepared to accept that the applicant encountered Maoists in his village in 1996 on four occasions and that the applicant’s parents cooked for them twice. The Tribunal does not accept that the Maoists used to come to the applicant’s village and house around six times a year over a number of years and that the applicant’s parents were forced to cook for them. The Tribunal is prepared to accept that during these interactions with Maoists in 1996 they asked the applicant to join them and he refused, but does not accept that the applicant’s refusal to join them in 1996 is the reason, or one of the main reasons, he was targeted by them 19 years later in 2017 as he claims.
Thirdly, the applicant’s evidence about why the Maoists chose the claimed location in question to stop his van and threaten him raises concerns for the Tribunal.
The applicant gave evidence that the people who stopped his van and threatened him were Maoists, from the main Maoist party but he was not sure which particular group.
The Tribunal asked the applicant how these people knew who he was and where he was when they targeted him in the van. The applicant responded that maybe someone from his village informed them. There were lots of Maoists in his village. The Tribunal asked the applicant whether he had experienced any problems when he had been staying in his village and he said he had not. The Tribunal put to the applicant that if the Maoists wanted to target him they could have done it while he was in his village, where he claimed he had been staying for the previous five days visiting his relatives. The applicant responded that if anything happened in the village, the village people would know because they know who the Maoists are. He said it would be difficult for the Maoists to explain why they targeted him and so to keep themselves safe the Maoists might have chosen that place (on the road) rather than the village. He said the Maoists want to show the village they are good people but from the inner side they are still doing their other things.
The Tribunal does not accept this explanation as plausible. If the Maoists in question were known or connected to people in the applicant’s village as he claimed, and they were targeting people in the area for extortion or causing other problems, the Tribunal does not accept that this is something the Maoists could keep secret. If people in the area were being targeted by local Maoists then Tribunal would expect that word of this would inevitably spread via their victims. The applicant’s response raises concerns for the Tribunal about the truthfulness of his evidence and the genuineness of his claims.
Fourthly, the applicant’s evidence about payment of money to the Maoists raises concerns for the Tribunal.
The applicant claimed in his protection visa application and to the delegate that the Maoists threatened him and demanded money, however he did not mention the amount or the details relating to how and when the money was to be paid. In the Tribunal hearing, the applicant gave evidence that the Maoists demanded 3 million Nepalese Rupees (Rs) and told him it had to be paid in two weeks.
The Tribunal asked the applicant how he was supposed to pay the money. He said the Maoists did not give him instructions. They said they would come to his village area to collect the money and would tell him the meeting place later. The Tribunal asked the applicant how the Maoists were going to contact him to tell him the meeting place and he suggested they might send someone to contact him at his house in the village or maybe leave a letter, but he said they did not contact him because he came to Australia. If he had been in Nepal that is what they would have done to contact him. The Tribunal asked the applicant why the Maoists thought he would still be in his village two weeks later given he was leaving his village to go to Kathmandu at the time he claims they targeted him. The applicant said the Maoists didn’t know when he was going to Australia.
The Tribunal asked the applicant whether the Maoists came to the village two weeks later to try to collect the money and the applicant said they did not. He speculated that maybe one of their group talked to someone in the village and found out that he had not returned to the village and so they did not come, but he said if he had returned the village they definitely would have come. The Tribunal asked the applicant why the Maoists would not have contacted or pressured his family in the village, for example, when they found he was not there given the Maoists presumably wanted the money. The applicant responded that the Maoists knew they would not get the money if he was not there. He said the Maoists wanted to take revenge on him because he didn’t support them and if anything happened to his family then it would have been a problem for the Maoists because they want to look good to the people in the village as part of the peace process.
The Tribunal put to the applicant that it might find aspects of his evidence about the payment and the 2017 incident more generally, difficult to believe. The applicant told the Tribunal that all his evidence was genuine and that the Maoists tell things differently internally from externally and if he goes back they will harm or kill him.
The Tribunal has concerns about the applicant’s evidence regarding payment of the money. The applicant’s evidence is that after targeting his van and threatening his life if he did not pay them money, the Maoists did not contact him or anyone in his family to attempt to obtain the money. The applicant suggested that the reason for this was that maybe someone had told the Maoists he had not returned to the village, and the Maoists would not approach or threaten his family because they were only targeting him for revenge and did not want to involve his family because that would look bad to the people in the village. The Tribunal finds this explanation unconvincing.
The Tribunal finds it implausible that having gone to the trouble of stopping the applicant’s van and threatening his life if he did not pay them, that the Maoists would not attempt to follow up the payment in some way or at least express their anger at the applicant having disappeared and the payment not being made. Even if someone had told the Maoists that the applicant had left the village and so they knew he was not there, like the discussion in paragraph 44 above, the Tribunal finds it difficult to accept the applicant’s suggestion that the Maoists did not approach his family at all about his failure to pay the money because they wanted to look good to the people in the village. It does not seem logical to the Tribunal that the Maoists would expect to be able to keep their extortion attempts secret from family members or friends of people they targeted, for example. The applicant’s evidence raises concerns for the Tribunal about the credibility of this claim and the genuineness of his claims more broadly.
Fifthly, the applicant’s evidence about why the Maoists targeted him in February 2017 raised concerns for the Tribunal.
In his written statement the applicant claimed the Maoists usually target the supporters of other parties and the applicant is a supporter of CPN-UML and they think he has a lot of money because he was living in Australia.
In his interview with the delegate, the applicant claimed he was targeted because he was a supporter of CPN-UML.
In the Tribunal hearing the applicant offered a number of different explanations for why the Maoists targeted him. During a discussion about why the applicant fears returning to Nepal, he claimed that he was targeted as a supporter of a rival political party (CPN-UML) and because of his political background. He also claimed that because he rejected the Maoists’ efforts to get him to join their army they targeted him because they think he never helped them and so they want to take revenge on him. In his account to the Tribunal of what was said to him when he was targeted in the 2017 incident, he claimed the reasons given were that he was a supporter of CPN-UML, the Maoists asked him to join their army and he would not, and he never helped them.
The Tribunal asked the applicant why the Maoists would be interested specifically in him after such a long time had passed. The applicant responded that they wanted to take revenge because he did not help them and maybe his political background. The Tribunal put to the applicant that it doubted that was a sufficient reason for revenge, given he has not lived in Nepal for a long time, the events he was referring to as motivation happened a long time ago and his political involvement in Nepal was limited. The applicant responded that he thinks it is because he refused to join their army. The Tribunal put to the applicant that it may not be persuaded by that reason. The applicant responded that he never helped the Maoists and their local candidate lost the election so maybe that is another reason also. He added that maybe they also thought he is in Australia earning money and he didn’t help them. Later, he also speculated that during his visit to Nepal in 2017 the Maoists had learned of his plan to return to the Nepal and they thought he would be an active member in his political party in his village and he could convince people not to support the Maoists and so they targeted him to try to make him stay in Australia. The applicant said revenge was the main reason though.
In respect of the applicant’s past political involvement being a reason for him being targeted, as discussed in paragraphs 29 to 32, the Tribunal finds that his political involvement was limited in nature and time, his political profile was generally low and he never encountered any problems with the Maoists during the actual time of his involvement in politics in Nepal. The Tribunal does not accept that his political involvement is a reason he was allegedly targeted by the Maoists in 2017, particularly given the claimed incident occurred such a long time after he left Nepal and having had no active political involvement since 2008. The Tribunal finds the applicant’s speculation that the Maoists may have targeted him because their local candidate lost the election and to try to make him stay in Australia so he could not get actively involved in politics in his village to be implausible. Given the Tribunal’s findings about the applicant’s political profile and level of involvement and the fact that he has not been involved in politics in his village for a considerable period of time, the Tribunal does not accept the applicant’s claim that he was targeted by the Maoists in an effort to make him stay in Australia and to stop him from becoming actively involved in politics in his village in the future. In respect of the applicant’s refusal to help the Maoists and join their army being a reason for being targeted in revenge, as discussed in paragraphs 34 to 40, given the limited number of times he claims he was approached by the Maoists about this, the fact that these approaches happened so long ago in 1996 and the applicant’s evidence that he did not suffer any harm at that time or later (until 2017), the Tribunal does not accept the applicant’s claim that he was targeted for this reason.
During the Tribunal hearing, the Tribunal also discussed with the applicant his claim that a possible reason why he was targeted is because the Maoists think he has a lot of money because he was living in Australia. The Tribunal put country information to the applicant which suggests that while forced donation is quite regularly encountered in Nepal,[2] country information does not support a claim that Nepalis who have spent time overseas are targeted simply for having worked in Western countries and being perceived as wealthy.[3] The applicant responded that when the Maoists demanded the money he told them he is from a normal family and they threatened him anyway. They targeted him for revenge because he didn’t help them and didn’t join their group. As discussed above, the Tribunal does not accept the applicant’s claims about being targeted because he didn’t help them and didn’t join their group. The Tribunal also does not accept his claim that he was targeted by the Maoists because they think he has a lot of money as he was living in Australia. This claim is not supported by country information.
[2] DFAT Country Information Report Nepal 2019 3.87
[3] DFAT Country Information Report Nepal 2019 5.36 – 5.37
The Tribunal does not accept the applicant’s claims about why he was targeted by the Maoists in 2017, or that he was targeted by the Maoists in 2017 for any other reason.
In light of the above concerns, having considered all of the applicant’s claims and evidence, the Tribunal finds the applicant has not been truthful in his account of the claimed events.
The Tribunal accepts that the applicant was born in [Town 1] in the Palpa district of Nepal and that he has a father, mother, brother and his elder son living in Nepal. The Tribunal accepts that from 1993 the applicant moved to Kathmandu to study. The Tribunal accepts that after graduating he continued to live in Kathmandu and worked as [an Occupation 2] until he came to Australia. The Tribunal accepts that after moving to Kathmandu the applicant used to travel back to his village around four times each year to visit.
The Tribunal accepts that the applicant was a supporter and later a member of the Communist Party of Nepal (UML). The Tribunal accepts that the applicant was involved in political activities in his village in the week leading up to the elections in 1999 and 2008. The Tribunal finds that the applicant did not experience any problems with the Maoists as a result of his political activities while he lived in Nepal. The Tribunal finds that the applicant has not been actively involved in politics since leaving Nepal in 2009. The Tribunal accepts that in 1996, Maoists came to the applicant’s village on four occasions and that on two occasions his parents prepared meals for them. The Tribunal is prepared to accept that on these four occasions in 1996 the Maoists asked the applicant to join their group or their army and he refused. The Tribunal finds that the Maoists never harmed the applicant at that time or at any other time while he lived in Nepal.
The Tribunal does not accept that during his visit to Nepal in February 2017, on his return from his village to Kathmandu or at any other time, the applicant was stopped by a group of Maoists who demanded money and threatened him, or his claims that flow from that. The Tribunal does not accept that the Maoists told him they knew who he was and his background. The Tribunal does not accept that they demanded Rs 3 million from him or any other amount. The Tribunal does not accept that they told him he had to pay the money in two weeks or at any other time. The Tribunal does not accept that they said they were targeting him, or that they actually targeted him, because he is a supporter of the Communist Party of Nepal (UML) or because he refused to join their army or to help them, or because he lives in Australia and earns money for any other reason. The Tribunal does not accept that they threatened to chase the applicant or to kill him if he did not pay the money, or for any other reason. The Tribunal does not accept that the applicant tried to complain to the police and that they didn’t register his complaint or take serious action. The Tribunal finds that Maoists did not come to the applicant’s village or make other attempts to collect the money he claims they demanded from him. The Tribunal does not accept that the applicant left Nepal earlier than he planned because he felt unsafe or that he cannot return to Nepal for the reasons claimed.
Do the applicants meet the refugee criterion?
The applicant claims that if he returns to Nepal he will be targeted by Maoists and perhaps seriously harmed or killed because he is a supporter of a rival political party and he refused to join their army and so they want to take revenge on him. In light of the Tribunal’s findings that the applicant was not targeted by Maoists on his journey from his village to Kathmandu during his visit to Nepal in February 2017, or at any other time, the Tribunal does not accept the applicant’s claims in this regard. Therefore, the Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances.

The Tribunal has considered whether the applicant’s encounters with Maoists in 1996 would give rise to a risk of harm if he returned to Nepal in the reasonably foreseeable future. The Tribunal has found that the applicant had four encounters with Maoists in his village in 1996 during which they asked him to join them and he refused. The Tribunal has also found that the applicant was not harmed during these encounters or since, and that the applicant was not targeted by Maoists in 2017. The Tribunal finds that the applicant’s encounters with the Maoists in 1996 happened such a long time ago and he has not experienced problems with the Maoists since, and so he does not face a real chance of serious harm arising from these circumstances.
The Tribunal has considered whether the applicant’s involvement in politics in his village in 1999 and 2008 would give rise to a risk of harm in he returned to Nepal in the reasonably foreseeable future. In light of the Tribunal’s findings that for the most part, the applicant had a low political profile in his village, his involvement in politics was limited in time and nature, he never experienced problems with the Maoists during the time he was involved in politics in Nepal and country information discussed with the applicant during the hearing indicates that the Maoists have the potential to control the national political agenda without resorting to violence and that in general, political opponents of the 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,[4] the Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances.
[4] DFAT Country Information Report Nepal 2019 3.45
The Tribunal has also considered whether the applicant would be involved in politics if he returned to Nepal in the reasonably foreseeable future. When the Tribunal asked the applicant about this he said that if he returned to his village in Nepal he would probably involve himself in the same way that he did in the past by going to meetings and canvassing for support prior to elections. The Tribunal is prepared to accept this. Country information discussed with the applicant during the hearing indicates that the Maoists have the potential to control the national political agenda without resorting to violence and that in general, political opponents of the 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.[5] There is no evidence to suggest that the applicant will involve himself in violent political demonstrations. Given the country information, the Tribunal’s findings about the nature of the applicant’s political involvement in the past and how he would involve himself in the future, as well as the applicant’s evidence discussed in paragraph 32 above that he never experienced problems with the Maoists in connection with his political activities in the past when he lived in Nepal, the Tribunal finds the applicant does not face a real chance of serious harm arising from these circumstances if he returned to Nepal in the reasonably foreseeable future.
[5] DFAT Country Information Report Nepal 2019 3.45
In his statement of claim and in the Tribunal hearing the applicant mentioned that maybe the Maoists think he has a lot of money because he was living in Australia and he didn’t help them. The Tribunal has considered whether the fact that the applicant and his wife and son live in Australia and the applicant and his wife earn money here, would make them a target for extortion if they return to Nepal in the reasonably foreseeable future. As discussed with the applicant during the hearing, country information does not support a claim that Nepalis who have spent time overseas are targeted simply for having worked in Western countries and being perceived as wealthy.[6] On this basis, the Tribunal finds the applicant, his wife and his son do not face a real chance of serious harm arising from these circumstances if they returned to Nepal in the reasonably foreseeable future.
[6] DFAT Country Information Report Nepal 2019 5.36 – 5.37
The Tribunal has considered the applicant’s claims that some unknown people came to his village about one year after he left Nepal in 2017, and about six months and two months ago to ask his parents when he was coming back to Nepal. In the Tribunal hearing, the applicant speculated that maybe this was the Maoists searching for him but conceded that he did not know who these people were, they were not threatening and his parents had not had any problems since he left Nepal. The Tribunal is prepared to accept that people may have asked the applicant’s parents about his whereabouts. Given the Tribunal does not accept that the Maoists targeted the applicant in 2017 and the applicant’s evidence that the Maoists would not approach his family in the village because they do not want to look bad, the Tribunal also does not accept that that the people who asked his parents about him were Maoists. There is no evidence before the Tribunal to suggest that there are other people who pose a threat to the applicant in Nepal and nor has the applicant made such a claim. The Tribunal finds the applicant does not face a real chance of serious harm arising from these circumstances if he returned to Nepal in the reasonably foreseeable future.
The Tribunal has considered the 2019 articles and US State Department report provided by the applicant about the situation in Nepal. The applicant said he provided this country information to show that the Maoists haven’t changed despite the peace process, they continue to threaten people and they cannot be trusted. He was not suggesting that the particular group mentioned in the articles he provided were the group who he claims threatened him. The Tribunal discussed with the applicant more recent country information it has that indicates the particular group referred to in his articles was declared a criminal group in 2019, their violence in more recent times had been very targeted and not random, and in March 2021 it signed an agreement with the government and made a commitment to peaceful politics.[7] The Tribunal put to the applicant that this suggests the risk of violence from Maoists is decreasing in Nepal. The Tribunal also put to the applicant country information that indicates the Maoists have the potential to control the national political agenda without resorting to violence and that in general, political opponents of the 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.[8] The applicant responded that he has the same hope but the Maoists’ behaviour is still the same and he does not trust them. The applicant’s assertion that the Maoists have not changed and that therefore Nepal is an unsafe place for him to return to is not supported by the country information and the Tribunal does not accept it.
[7] Chand expresses commitment to abide by three-point agreement (kathmandupost.com); Nearly two dozen Chand party cadres arrested in biggest police raid yet on the outfit (kathmandupost.com)
[8] DFAT Country Information Report Nepal 2019 3.45
The Tribunal has considered the country information provided by the applicant about problems experienced between Nepalis and Indians. This country information was provided in support of the applicant’s written submissions about why India is not a safe third country for him. As the issue of relocation to India by the applicant does not arise in this case, the Tribunal does not consider this information to be relevant to the Tribunal’s assessment of the applicant’s circumstances if he returned to Nepal in the reasonably foreseeable future. The Tribunal has also considered the newspaper article provided by the applicant about the lack of a transitional justice process in Nepal. The transitional justice process discussed in the article relates to processes to investigate crimes and undertake prosecutions on behalf of victims of serious violence such as rape and murder during the Maoist insurgency which ended in 2006. There is no evidence before the Tribunal to suggest that the applicant or his wife or son were victims of serious violence during this period and the Tribunal does not consider this country information to be relevant to the Tribunal’s assessment of their circumstances if they returned to Nepal in the reasonably foreseeable future.
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 the applicants face a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicants 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 applicants have a well-founded fear of persecution, it is not satisfied that the applicants meet the definition of refugee in s 5H(1). As the applicants 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?
As the Tribunal has found that the applicants do not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicants meet the criterion for the grant of protection visas under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[9] for the same reasons as those set out above, the Tribunal finds that the applicants do not face a real risk of significant harm for any reason. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants 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 applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
[9] MIAC v SZQRB [2013] FCAFC 33
Conclusion
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.
DECISION
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.
…

[2021] AATA 5083

17 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction