1909021 (Refugee)

1909021 (Refugee) [2023] AATA 3435 (20 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Dahal (MARN: 1383851)
CASE NUMBER:  1909021 and 2102469
COUNTRY OF REFERENCE:                   Nepal
MEMBER:David McCulloch
DATE:20 July 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal:
a.affirms the decision not to grant the applicant a protection visa in matter 1909021 (Safe Haven Enterprise visa application made on 5 December 2016); and
b.sets aside the decision in matter 2102469 to refuse to grant the applicant a Safe Haven Enterprise visa for the visa application made on 13 October 2020 and substitutes it with a decision that the visa application was not valid.

Statement made on 20 July 2023 at 2:49pm
CATCHWORDS
REFUGEE – Protection Visa –Nepal –religion – Hinduism – race – Chhetri –actual or imputed political opinion – active and senior member of the monarchist RPP – lower level involvement in the RPP and/or the RPP-N – inconsistent evidence – credibility concerns – applicant’s second visa application is invalid –decision in matter 2102469 sets aside – second visa application is invalid – decision in matter 1909021 affirmed – under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 48, 91, 65, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of Nepal.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] May 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s (1)) and a decision refusing to grant him a Safe Haven Enterprise visa (SHEV) is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant was granted a Temporary Safe Haven (Subclass 449 – Humanitarian Stay (Temporary)) visa on 24 July 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant applied for a Safe Haven Enterprise visa on 5 December 2016 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on s 5H(2), 36(1B) or (1C) or s 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on 13 October 2020 (the second visa application). However, the applicant’s first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicant because they were not within the class of persons specified in the then Minister’s s 48B determination.
The first application for a Safe Haven Enterprise visa on 5 December 2016 was refused by the delegate on 27 June 2017. An application for review of that decision was made on 12 April 2019.
The second visa application was refused by a delegate on 4 February 2021. An application for review of that decision was made on 1 March 2021. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.
The applicant appeared before the Tribunal on 12 July 2023 at 9.30 am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant was represented in relation to the review. The representative did not attend the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Report – Nepal, 1 March 2019, a copy of which was provided to the applicant in advance of the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, protection criteria are met. For the following reasons, the Tribunal has concluded that the first decision under review should be affirmed. As indicated, the review of the second application for review is invalid.
Further to the information above concerning the applicant’s migration history, the Tribunal notes it as set out in the decision of the delegate:

[date]/05/2013 Arrived in Australia

03/07/2013 Attended arrival interview5

24/07/2013 Released from detention after being granted Humanitarian Stay (class UJ, subclass 449) visa and Bridging E (class WE, subclass 050) visa

18/04/2016 s46A bar lifted for purpose of TPV and SHEV only

05/12/2016 The applicant lodged a first Safe Haven Enterprise (SHEV) XE-790 visa application6

27/06/2017 The applicant’s SHEV application was refused7

30/06/2017 Immigration Assessment Authority (IAA) review of the SHEV refusal commenced

29/11/2017 IAA confirmed the SHEV refusal decision8

[date]/12/2017 Judicial review Commenced - FCC NSW - [NUMBER]

[date]/01/2019 Judicial review Result - Minister Withdraw - FCC NSW - [NUMBER]

23/03/2019 The applicant was (re)notified of the SHEV's refusal decision as he was affected by the DDB16 judgement.9

12/04/2019 AAT review commenced of the SHEV's refusal decision - this outcome is still pending

11/09/2020 Notification of invalid application for a Safe Haven Enterprise (class XE) Safe Haven Enterprise (subclass 790) visa10

25/09/2020 The applicant notified of the Minister intervening and lifting the s91K and s48A bars.11

13/10/2020 The applicant lodged a valid SHEV visa application12

02/12/2021 SHEV interview13

The Tribunal notes the following background information contained in the application forms with respect to the first visa application. The applicant was born on [date] in [Village 1], Baglung. The applicant is Hindu. The applicant was married on [date] March 1988. The applicant lists both parents as being deceased. The applicant has two sisters and three brothers. The applicant lists living from birth until February 2006 in [Village 1], Baglung. From February 2006 until February 2013 the applicant lists one address – [address]. The applicant indicates his wife and two daughters are living at [address]. The applicant’s eldest child, a daughter, was born on [date]. The applicant’s other daughter was born on [date]. The applicant’s son who is living in [Country 1] was born on [date]. The applicant completed education in 1987 finishing [a grade] of high school. The applicant indicates that from 1989 until February 2013 the applicant farmed family land at [Village 1], Baglung.
The Tribunal notes relevant additional background information that was previously provided by the applicant as part of his entry interview with the Department that took place on 3 July 2013. The Tribunal notes from the information that the applicant indicated that his wife was currently living at Baglung [District]. One of his daughters was indicated as living in Baglung, and his other daughter and son are living in Kathmandu. The Tribunal notes that the applicant provided information that he worked [in] Baglung until 2013. The applicant also indicates that from 1993 until 2013 he worked as a volunteer for the political group Rastriya Prajatantra Party (RPP). The applicant until 2006 lived at an address in [Village 1], Baglung. From 2006 until 2013 the applicant lists living at one address, [address]. The applicant indicates that he paid US$8,000 for his passage to Australia and this money was paid by his friend [name].
The Tribunal notes background information in the application forms for the second visa application. The applicant indicates that from February 2007 until February 2013 he lived in Kathmandu at the address [address]. In terms of employment details the applicant indicates that until February 2007 he was involved in a family‑owned farm. From February 2007 until February 2013 the applicant indicates his employment as being involved with the RPP and being supported by the political party and friends.
The Tribunal notes that in the applicant’s written statement provided following the interview as part of the second visa application, he indicated that the references in the paragraphs above to February 2007 as being when he moved to Kathmandu is a mistake and in fact should be February 2006.
The applicant’s claims for protection in the first visa application was that his life was threatened by the Maoist Party and Terai Tigers. This was because he was an active member of the RPP. The applicant left Nepal to save his life. They tried to kill the applicant several times. The last time they attempted was on Democracy Day in 2012. There were celebrations and all of a sudden ‘they’ attacked us and tried to kill ‘us’. They dismantled the stage and chased ‘us’. The applicant took shelter at his friend’s place and fled the country on the same day. The applicant reported the issue to local police but they did not provide help. They were afraid of Maoists and did not want to get involved in political issues. The applicant fears being abducted, tortured or possibly killed at the hands of Maoists. He also fears being killed by the Terai Tigers.
The applicant refers to his property and land being confiscated by Maoists and making a formal complaint to local authorities but that they were unable to help. The authorities were afraid of Maoists and did not want to get involved with political issues.
The applicant also provided the following written statement dated 15 February 2017 as part of the first visa application (not corrected for spelling or grammar):
Since the start of Maoist People's War, I and my family were attacked in various times. Giving troubles and making threats, the intention was to kill me. To celebrate their tenth People's War Day, a campaign was initiated to wipe out all monarchists from every villages. The purpose was to capture all villages and declare a republic village. In this context, an armed group came on 2062/11/1 BS (131" February 2006 AD) at midnight announcing slogans and put their flags in the house and land. As they attacked a whole family using arms with intention to kill, I somehow managed to save my life and ran away from my home village. When I was displaced, I tried to look for various safe places including in Kathmandu. Although I lived in Kathmandu, I was given death threat for financial reason by the Maoist Party and Terai Tiger (an underground group) and also occasionally by other violent groups. Their attacks increased from time to time with intention to kill me. In this situation, if I had stayed in Nepal, I could not have survived. Therefore, I was compelled to leave the country to save my life. For me, there are so many risks and danger in Nepal. My future is not safe in Nepal.
It was a democracy day on 7/11/2069 BS (18th February 2013 AD). At that time, I was working at [a committee] under Rastriya Prajatantra Party (National Democratic Party). There was a programme of my own party at the contact office during the democracy day. Suddenly, members of YCL, sister organisation of Maoist Party, and paid professional goons came carrying domestic arms, sticks, rods, knives, and spears and not only vandalised but also deliberately set fire at the programme venue. Using arms, they also ruthlessly attacked people who were present at the programme with intention to kill. They followed those who were running away. While I was running away, things were thrown at me from the behind. With difficulty, I was able to get into my friend's house. However, my friend saw them following me with arms and therefore he advised me to hide in a nearby temple and helped me to get out from the back door. I hurriedly went to the temple and requested the priest and hid inside it. At my friend's house, those members of YCL and armed goons threatened him. Calling my name, they asked him about me and demanded where he had hid me. They also threatened him that if not disclosed, he will have the same fate as I. My friend told that he didn't see me. He also told them to search the house. After checking all and when I was not found, they kept on saying that they had seen me coming and threatened my friend charging that he had he hid me. They said that they will eliminate both me and my friend turn by turn.
From there, when they went to [a venue] looking for me, my friend hurriedly came to me and informed me they will not leave me unhurt. He also told me that they had threatened him accusing of hiding me. He warned me that they will attack whenever they get me and therefore advised me to run away from there. It was time for him to come home from his shop to eat and he got opportunity to help me. Therefore, I was lucky. Otherwise they would have killed me. He informed me that it is danger to travel in a bus as they were checking all buses. He mentioned that a truck has come from India to deliver cement and rods in his shop and advised me to run away via that truck at night. He also assured me that he is going to talk to a driver. To save my life, I took the same truck and left Nepal for India.
The Maoist Party has their own strong network across the country and they have employed their cadres in various important places. The Maoist has a violent background and follows violent behaviour. As people are scared of them, no one provides help going against the Maoist. Outside the capital, there is more danger of life and therefore, there was an increased pressure to leave the country.
In neighbouring India, there are international networks of Maoist Party and Terai Tiger. The Terai Tiger is an underground group relating to India, and the Maoist is even more related to India as they got training during the time of people's war. They have direct and indirect contacts and working relationship with Indian Maoist. Another important thing is that there are no checking and visa/passport requirements for entering and exiting between Nepal and India. People from Nepal and India can enter any one of these countries for any purpose. Because of this reason, India is no less danger for me. So, it is clear India is also equally danger for me. While I was in India, I received many calls in my phone number with threats for my life and I was compelled to leave India.
I was committed to monarchy and was active in social services following monarchist politics regularly and this was the reason for Maoist and Terai Tiger trying to kill me. The monarchy was abolished in an unconstitutional and undemocratic way by one group of old members of parliament who had already lost their validity and another group of members of parliament who did not have peoples' backing. Therefore, as per the policy of our Rastriya Prajatantra Party, our demand was to reinstate the king or to make decision from referendum. Another thing is that a country, like Nepal, which is small and poor (more than 125 ethnic groups and more than 123 languages), cannot maintain federalism due to economical reason and might create problems later on (every ethnic group can demand for it). There is no need for federal states. There are 82% Hindus in the country and recognising the majority of the people's wish, our demand is to abolish the secularism.
As per my wish, I have been continuously serving my village and society through politics. I have been explaining to general public as per this mentioned policy. The Maoist and others (Republic, federalist and secularist) parties thought that if I contribute to expand monarchist and opponents of secularism and federalism, they will be weak and their achievements (republic, secularism and federalism) will be in danger. So this is the main reason to kill me. When the king was displaced, they wanted monarchists to be removed as well. These types of people are the power of the King.
Therefore, the policy of the parties including Maoist is to get rid of the monarchists. Due to this policy and objective, their attacks to me increased. As per their objective and intention, the Maoist created terror by choosing and inhumanly killing more than 17 thousands innocent people like me: who did not follow their policy; who spoke in favour of monarchy; and who were making general public aware that violence is bad and should not be taken side of violence. Some people were buried alive, some people were tied on the tree and dismembered their neck and legs, some people were hanged, and some people were raped and killed. Their cruelty cannot be described. At that time we were not allowed to say violence is not good. It was a situation where receiving bullet was common.
After accepting the peace process too, with power and government authority, they have been looking for and choosing those who were missed from their target list, and killing cruelly and openly. In the past, at least some sections were opposing these acts. Some of the incidents were known to public. But now all sides (republic, federalist and secularist) have become one. Because of this reason, incident relating to opponent (monarchist) has been not known. If someone asks for justice, the person will either be killed or died or end life but won't get justice. We can take the example of Nanda Prasad Adhikari. His son Krishna Prasad Adhikari was taken out of his house and was killed inhumanly without any reason. He filed a case requesting for justice to take action against the killer. When there was no justice, both father and mother went for a hunger strike. While on hunger strike, Nanda Prasad died painfully in the hospital.
His wife is still waiting for her death in the hospital bed. The family has demanded that until the justice is done, they will not accept the corpse. It's been 3/4 years since the death of Nanda Prasad. The corpse is claimed by no one and it is decaying continuously. The justice system does not see this type of incident or even when it sees, it pretends as if it is not seeing. At the moment surviving member of Krishna Prasad Adhikari's mother Ganga Maya Adhikari is asking for death as justice is not done.
On the other hand, Bal Krishna Dhungel, who was convicted by the court and was given life sentence for murder, was made Member of Parliament and Minister in the past, is living safely. The person who should be in prison had become Member of Parliament and Minister and proudly roaming around openly. No one can dare to catch and give him punishment. These are only examples. Here anyone can do whatever he or she likes and we have to take care of ourselves without hoping for the justice. Therefore, when security bodies are requested for justice, it is advised: not to get into unnecessary headache; there is no guarantee for own safety; what security should we provide; instead it is better to take your own security. For this reason, when injustice occurs, instead of going to ask for justice, we are bound to avoid situation from getting into injustice. This means we are forced to take care of our own life. As the peace and security situation of the country is like this, I was compelled to come here to secure my life.

The applicant makes written claims as part of his second visa application. The Tribunal notes differences with previous claims. It is indicated that the last attempt to kill the applicant was in 2013 on Democracy Day (as opposed to 2012 in previous claims). The applicant confirms that he reported this incident to the police but they were unable to help. The applicant also confirms that when family land was taken by Maoists he made a complaint against them to the local authority but they were unable to assist.
The delegate’s decision refusing the second visa application on 4 February 2021 outlines evidence given by the applicant in respect of the first application and the second application and provides a summary of the Independent Assessment Authority’s (IAA’s) unsuccessful review of the first visa application. The decision also outlines the reasonings of the delegate with respect to the first visa application and the IAA. The Tribunal extracts the summary from the delegate’s decision (not corrected for spelling and grammar and footnotes omitted):
Entry interview
On 3 July 2013, the applicant attended an entry interview with a departmental officer to discuss the reasons for his travel to Australia. The following is a summary of claims made in his entry interview:
•         He was born in [Village 1] Village Development Committee (VDC), Baglung District, [Nepal] on [date].
•         His religion is Hinduism. His ethnicity is Chhetri.
•         He lived in Kathmandu since 2006.
•         He has been associated with the monarchist Rastriya Prajatantra Party (RPP).
•         He campaigned for the RPP and was the contact person for his village in the RPP headquarters.
•         He left Nepal because Maoists confiscated his property. He also fears the Terai Tigers Party (TTP).
•         In 2012, during the National Democracy Day, the members of the Maoist party's youth organisation came and disrupted the celebrations. He ran away and hid in his friend's place, and later in the temple. On the same night, he left to India with a driver who was working for his friend, transporting supplies between Nepal and India. The border is open, so he did not need to go through the immigration.
•         The police and the authorities were unable to protect him from Maoists.
•         In India, he stayed in Mumbai (Bombay) for eight days, and from there he travelled to [Country 2].
•         He fears the Maoists or the TTP would kill him if he returned to Nepal.
SHEV 2016 application
The applicant reiterated his claims from the entry interview and provided the following additional information. In summary he claimed:
•         He was an active and senior member of the monarchist RPP. Because of his political involvement, and his promotion of the monarchy he was targeted by Maoists, including the associated Young Communist League (YCL).
•         On 13 February 2006, an armed group of Maoists came to his village, and they attacked his family with the intention to kill them. He and his family escaped to Kathmandu.
•         In Kathmandu, he increased his involvement with the RPP and worked at the RPP's [Committee]. He did not return to his home village.
•         On 18 February 2013, during the celebration of National Democracy Day in his village, the YCL, and "paid professional goons" attacked the RPP’s venue with sticks, rods and knives. They vandalised and set fire at the programme venue.
•         He escaped to his friend's house and then to a nearby temple. His friend advised him that the YCL members were looking for him, so he decided to leave the country. The same night he escaped to India by truck.
•         In Kathmandu, he received death threats from the Maoists and the TTP and occasionally by other violent groups.
•         The Maoists and the TTP have international networks in India. When he was in India, the applicant received threatening calls on his phone number, and he was compelled to leave India.
On 15 June 2017, the applicant attended an interview with a delegate to discuss his claims made in SHEV application. At the interview the applicant stated that:
•         He has been a supporter of the RPP since he was [age] years old. He supported the King, and endorsed the political ideology of the RPP that includes the abolition of the secularism and opposition to federalism.
•         He did not have an RPP membership card, but he could try to obtain evidence of his association with the RPP.
•         He had a little involvement in the RPP before 2006 as he worked on his farming land.
•         In Kathmandu, he was active in assisting newcomers in Kathmandu and explaining the RPP policies to them. He was the [Position 1] of [a committee]. His position was unpaid.
•         The Maoists and their associates attacked him during the National Democracy Day celebration in Kathmandu in 2013. The attack did not take place in his village in 2012, as claimed in the written statement and the agent’s support letter.
•         He was under constant attacks from his political opponents, including the TTP, although he was able to avoid bigger attacks.
•         He received phone calls in India from Nepal, and some unknown callers asked him about his name and whereabouts.
•         He stayed in India for ten days and arranged his travel to Australia using an agent.
In relation to these claims:
•         The delegate accepted that the applicant was a low-level member of the RPP involved in providing social services to the people who arrived from Baglung to Kathmandu and explaining the RPP policies to them. Nevertheless, the delegate considered that the applicant had no significant profile in the RPP, and he exaggerated his role in the party. For example, at the PV interview, the applicant stated that he was the [Position 1] of [a Committee]. He did not raise this claim in his entry interview or his SHEV application.
•         Based on the country information, the delegate accepted that the applicant’s land was confiscated by Maoists in 2006.
•         The delegate noted inconsistency in the applicant’s statement related to the place and time of the incident that happened during the Democracy Day celebration. Nevertheless, the delegate accepted that the RPP workers were attacked during the celebrations by the Maoist cadres as similar attacks were reported. The delegate was not satisfied that the applicant was singled out for persecution on account of his role by the Maoists or their associated groups. The delegate considered that the applicant was attacked because he was attending the party's event.
•         The delegate found the applicant’s statements about being attacked continuously by the opposition members trying to harm him vague and generic. The delegate was not satisfied that the applicant was under constant attacks by any group, including the TTP.
•         The delegate had some doubts about the applicant’s explanation of how he arranged his journey to [Country 2] in such a short period, given his statement that he left Nepal in a hurry without any resources. Nevertheless, the delegate accepted that the applicant departed Nepal for India and eventually travelled to [Country 2] legally on his passport.
•         The delegate did not accept his claim of receiving phone threats in India as credible. The delegate did not accept as plausible that the Maoists or the TTP would know that the applicant had escaped to India or knew his mobile phone number and thus made phone threats when he was in India.
IAA Review
No additional information has been provided for the IAA review. The IAA reviewer considered the applicant’s previous claims summarised above. On 29 November 2017, the IAA reviewer found:
•         The reviewer noted the inconsistency in the applicant’s employment history. According to the application, the applicant worked on the farm in [Village 1], Baglung until February 2013. The reviewer found it inconsistent with his claim at the interview that he left [Village 1] in 2006 and never came back.
•         The reviewer noted that the applicant was receiving support from in-laws while in Kathmandu. However, the reviewer expressed doubts about the applicant committing himself to full-time work in an unpaid position for the RPP since 2006, considering he had three children at that time of a school-age and he was paying rent it Kathmandu. The reviewer did not accept that the applicant stopped working as a farmer on family farmland in [Village 1] in 2006.
•         The reviewer noted that the applicant’s claim that he was the only one in the village targeted by Maoists, because of his profile as an active member of the RPP did not correspond with his statements at the interview indicating that he had very little involvement with the RPP and politics before 2006.
•         The reviewer found the applicant’s description of the attack and confiscation of his land in 2006 generic. The reviewer noted that the applicant had no evidence of land ownership, and noted that the applicant nor his family took any action to reclaim the land. Overall the reviewer did not accept that Maoists confiscated the applicant’s land.
•         The reviewer noted that the details such as place and time of the attack on Democracy Day have changed over time. The reviewer noted that in his entry and SHEV interview, he stated that he departed to India by a truck on the same night, and did not even return home to collect his belongings. However, in his SHEV application, he stated that he had time to report the incident to the police.
•         The reviewer found the applicant’s claims of being targeted by the TTP and Maoists in Nepal and India generic and vague. The reviewer did not accept that the applicant was ever pursued, threatened or mistreated by the TTP or Maoists.
•         The reviewer noted that the applicant did not provide any evidence of his membership in the RPP, although he indicated that this evidence was available. The reviewer noted that the applicant did demonstrate some general understanding of the RPP and monarchist agenda. Nevertheless, the review found the applicant’s description of his role in the Kathmandu office was rather generic. His understanding of the party activity was not commensurate with someone fully engaged with the party activities from 2006 to 2013. The reviewer did not accept that the applicant had any role in the RPP or that he was a formal member of the RPP or any other party in Nepal. Neither did the review accept that the applicant was perceived as having such a role.
•         The reviewer accepted that the applicant has been and remains an ordinary supporter of the monarchy and the RPP. He has participated in RPP events as an ordinary supporter in the past and will continue to do so in the reasonably foreseeable future.
Current SHEV application
In his current SHEV application, the applicant relies on the same statements submitted with SHEV application in 2016.
SHEV Interview on 2 December 2020
The applicant was interviewed over the phone on 2 December 2020. The interview was conducted in the presence of his migration agent who attended via telephone. The interview was conducted with the assistance of an accredited Nepali language interpreter who attended via phone. The applicant reiterated his claims from the written statement and provided the following additional information.
His wife and two daughters live in Kathmandu. His son has been studying in [Country 1] since 2015. His two brothers live in India Chennai, where they work in the factory. They went to India before the incident happened to him. His third brother and his sisters live in Nepal.
He did not stay India because Maoists and the TTP have connections in India. His brothers were safe in India because they were more sympathetic to the Maoist views, although they were not members of any political party. That is why the Maoists did not attack his brothers in the village. In his family, he was the only one supporting the monarchy and politically involved.
He used to work as a farmer in [Village 1], where he owned the land. Maoists confiscated the land in 2006. They came at night, and he had to escape through the narrow window at the back of the house. He did not have time to take documents related to land ownership. He did not reclaim the land because it was not safe. The Maoists were strong, and even the members in a higher position of his party had their land confiscated. His brothers owned the land in the village, but only his land was confiscated.
Since February 2006 he worked in the RPP office in Kathmandu. His friends supported him, and the party helped him with accommodation and food although they did not pay him a salary. He lived in housing provided by the RPP and did not have to pay the rent.
I noted that he had three children to support, and he also managed to save money for the journey to Australia. He responded that his in-laws had a [business] in Baglung and their financial situation was good. They supported him and looked after his children.
I asked how he qualified for the support from the party. He responded that there was no criteria or process in the place. The party knew he escaped from the village and did not have anything, so they decided to help him. He had no rental agreement with the RPP. There was no legal or formal decision in the place that would apply to his case. He believed that there were other people supported by the party, but he was the only one from his region. The party did not have an office in his village.
The party's economic and financial situation was good thanks to fundraising. The members had to pay a levy every year. He did not have to pay because he did not have anything. The levy depended on each member's capacity to pay. The funds were managed by the Central Office (CO), which distributed money to the regional offices as needed.
He worked in a regional office of the RPP in [Kathmandu] which he joined immediately after arriving in the city. He was working in [a committee]. At the time of his arrival, the chairperson [just] passed away, and another person who was higher than chairperson was not in the office. He became a [Position 1], the highest position in the office, and he was running the office with five to six other permanent members. His job was to organise events and help visitors from his village. The CO would send instructions on how to operate the party. They were responsible for the region of Baglung. He did not have any evidence of his work for the party because all the documents were destroyed in the fire.
He has been involved in politics since he was an [age]-year-old student, but he became fully involved with the RPP after his arrival to Kathmandu in 2006. While in the village he was telling villagers not to be involved with Maoists. He joined the RRP-Nepal on 13 May 1999 (30 Baishakh 2056 BS). I noted that in 1999 the RPP-Nepal was not in existence - it was a splinter party of the RPP created in 2006. He responded that the RRP was established in 1990 and had a cow as a symbol. The party kept splitting into factions, which has been now reunited. He did not know when the party split for the first time, but one faction supported the monarchy, and one supported the republic.
The regulation of the party would be reviewed and amended once a year. He did not know whether the party had any online presence where they published information about the party.
The party had no presence in Australia. He has been renewing membership with help from his friend who paid a levy on his behalf. He did not know if his friend had any receipt of payment. He has not participated in any activities with the party since he arrived in Australia. He is just a member.
I noted that he did not mention his involvement in activities during the elections, although he stated he was responsible for running the party's regional office. He responded that he was involved in organising the elections in 2008. He also voted for the party in elections in 1994, 1999 and 2008 Nepalese Constituent Assembly election. He told people that the king should lead the country, and Nepal should be a Hindu country because most of the population was Hindus. The CO gave them booklets to distribute, which contained information about the values of the party. There was no information available online.
In his statements, he only mentioned the first incident in his village in 2006 and the last one during the celebration of Democracy Day in 2013. There were other incidents in between. During the civil war he was he was forced to join Maoist, but he refused. In March 2008, he was in his friend's house when a group of people started threatening them. His friend engaged them in conversation, and he escaped through the rooftops.
I noted that the applicant claimed he was mistreated for the first time in 2006; however, he left Nepal only in 2013. I noted that a delay in seeking protection might lead to an adverse credibility finding as well as a finding that his fear of harm was not well-founded. He responded that he was committed to stay and help his people and the country. He stayed while he could, and then he moved to Kathmandu. After the 2013 attack in Kathmandu, he started to fear for his life and decided to leave the country. In 2013, he reported the attack to the police, but the police were not ready to help because the Maoist had power everywhere.
I noted that based on his statements it appears that he had a little involvement with the politics while living in his village and he only became fully involved with the RPP after he moved to Kathmandu in 2006. I asked why Maoist chose to attack him in Baglung, where he did not appear to have any notable political profile. He responded that although he was not working actively, he was a registered member and Maoists were concerned that he may convince people to join his party. In 2006, the republic system came in, and monarchists were attacked at many places, and he was one of them. There were some verbal quarrels in his village, but people mostly supported the republic, so not many people were attacked.
I noted that the DFAT report indicates that since his departure Nepal has enjoyed several years of political stability, the country has a lively political environment with diverse political parties and views, and an individual's membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. He responded that it might appear from the outside that the situation has changed, but internally the Maoists are everywhere in the country. If he returns, they will target him because they still fear the return of the monarchist system, which he supports.
Concerns and opportunity to comment
It was put to the applicant under section 57 of the Migration Act that in his current application, he stated that he was unemployed and supported by the party since 2006. In the previous application, he indicated that he worked as a farmer in [Village 1] until February 2013. I noted that this information was relevant because it may lead to a finding that his claim of the land being confiscated was not credible. He responded that this must be an error in the previous application. He worked on the farm in [Village 1] until 2006 when he escaped to Kathmandu.
It was put to the applicant under section 57 that I have read the assessments of both the Department and IAA decisions regarding his claim that he was mistreated and harmed in Kathmandu during the celebration of the Democracy Day in 2013. It was noted that at the entry interview and first SHEV Interview he stated that he departed Nepal for India by a truck the same night as the incident happened and did not even return home to collect any belongings. In his SHEV 2016 application form, he stated that he reported this incident to the local police, but they did not help as they were afraid of the Maoists. The reviewer noted that he did not provide any evidence of reporting the matter to the police, nor did he explain how he managed to report the matter considering he claimed he was hiding before he fled to India on the same day. Because of how the incident was described and considering the importance of reporting of the incident to the police, the reviewer found the incident was not credible. I invited the applicant to provide any reasons as to why he believed I would come to a different conclusion than the IAA reviewer. He responded that they might have been some errors in his previous statements, but the information in his current statement and application is correct.
It was put to the applicant under section 57 that I have read the assessments of both the Department and IAA decisions regarding his claim that he was mistreated and harmed by the TTP and other parties affiliated with Maoists. It was noted that his statements about the threats and mistreatment were generic and lacking details and both decisions found them not credible. I invited the applicant to provide any reasons as to why he believed I would come to a different conclusion than the previous delegate of the Department and IAA reviewer. He responded that the Maoists have links to India based TTP and they shared the same political values. The Maoists have attacked him in Nepal, and thus he feared harm from the groups affiliated with them.
I noted that based on the testimony today, the information about the party and his role in the party appeared to be generic, and there was no supporting evidence about his membership in the party. He responded he would provide further evidence after the interview.
Post-interview submission
The applicant's migration agent provided written post-interview submissions and supporting documents on 16 December 2020,21 and 22 December 2020. In his post-interview submission the applicant reiterated his claims and stated that:
•         He was already elderly when he left his country. He left Nepal despite being suffering from various health issues. He left behind his children and family. He would not have left them behind if he did not feel threatened. Although his family in Nepal is doing well, the risk for him in Nepal remains the same.
•         He reiterated that after the attack on 18 February 2013 he could not leave the temple easily and return home. The pursuers have been looking for him everywhere. He crossed the border to India at night-time, hiding at the truck. Because he could not be safe in India, he undertook a risky journey to Australia on the boat.
•         In his submission, the applicant corrected some dates from his previous statements and address details that have changed due to the change of administrative organisation structure in Nepal. [Village 1] VDC has been amalgamated to [a] [Municipality] , and Dhaulagiri zone is now known as Gandaki Province.
•         He reiterated that he left his village on 13 February 2006. He has not been farming after he moved to Kathmandu.
Supporting documents
•         Copy and translation of the letter from [name], [a position] of the RPP in Kathmandu issued in December 2020. It states that the applicant, a resident of Baglung District, joined the party in 1999 and has been actively involved in the party since the establishment of the RPP-Nepal.
•         Uncertified copy of the RPP membership card issued on 6 March 2020 (23/11/2076 BS).

The Tribunal accepts based on its own review of the relevant Departmental files and its listening to the recordings of the interviews with the delegate both with respect to the first application and the second application that the summary is an accurate representation of the evidence and analysis, subject to the qualifications below.
The Tribunal as presently constituted notes that the delegate’s extracted summary is not correct in its claims that in relation to the first visa application, the applicant claimed that when he fled from his home village to Kathmandu in 2006 after his property was confiscated by Maoists, his family went with him. It is not claimed by the applicant that his family went with him.
The Tribunal also notes that the delegate’s extracted summary omits evidence which the Tribunal considers possibly relevant from the interview with the delegate with respect to the second visa application. In that interview, the applicant indicates that he was not able to provide identification evidence because this was all kept at the office of the RPP which he managed, and that in the ransacking of the office by political opponents that occurred on Falung 7 2069 (Nepalese calendar) they burned the office destroying all of his identification documents.
The Tribunal also provides more detail of the supporting documents that were submitted after the interview with respect to the second visa application.
The applicant provides a letter from the [position] from the Central Office of the RPP dated 8 December 2020 which indicates that the applicant joined the party in 1999 (2056 Nepalese calendar) and has been actively involved in the party since the establishment of the RPP-Nepal and has been actively working in the party, being loyal towards the party’s policies, thoughts and principles.
The applicant provides an Active Member Identity Card in his name from the RPP‑Central Working Committee issued on (Western calendar) 6 March 2020 valid until 6 March 2021.
The applicant later provided a letter dated 14 December 2020 on an RPP letterhead from Mr [name], Chairman, [a committee]. The letter refers to the vicious attack on the applicant’s residence in Baglung in March 2006 causing him to flee to Kathmandu. It refers to him being the [Position 1] of the [Forum]. The letter refers to an incident that occurred on 18 February 2013 resulting in damage done to the applicant and the party. This resulted in him fleeing the country.
The applicant also provided an ‘Active Member Identity Card’ in the RPP in his name issued on ‘2076/11/23’ valid until ‘20177/11/22’.
Country information
Recent history, Maoists, politics and violence
The 2019 DFAT report on Nepal provides the following information (underlining added):
RECENT HISTORY
2.1 Nepal was established as an independent monarchy in 1769 when Prithvi Narayan Shah, the ruler of the small principality of Gorkha, united 46 independent states to form the Gorkha Kingdom. Hereditary monarchs have ruled Nepal for most of its history.
2.2 Between 1960 and 1990 a system of local governance known as panchayat was used throughout the country. A panchayat is a council of elders at the village level historically common across South Asia. In the Nepali system, representatives from local councils would be sent to increasingly larger panchayat up to the national level.
2.3 In 1996 the Unified Communist Party of Nepal (Maoist) (UCPN-M) began a nationwide violent insurgency against the government leading to a ten-year civil war. Almost 18,000 people were killed and over 1,300 disappeared before a peace accord was struck in 2006 following an agreement between the Maoists and an alliance of seven Nepali political parties.
2.4 In February 2005 the then-king assumed absolute power in a coup supported by the army. A people’s movement in April 2006 and a joint alliance of democratic parties and the Maoists forced the king to relinquish direct rule. Parliament subsequently agreed to abolish monarchical rule, and Nepal became a republic in 2008 with the election of the first Constituent Assembly. The Maoists formed the first government, which proved to be short-lived, resigning in May 2009. A coalition government was then formed until it, too, resigned in July 2010. In September 2011, Dr Baburam Bhattaerai of the UCPN-M party formed government with the Madhesi alliance from the Terai. Political stalemate and questions concerning Nepal’s federalist structure and how to accommodate ethnic and linguistic minorities led to the dissolution of the first Assembly in 2012.
2.5 After repeated delays, elections for the second Constituent Assembly were held in November 2013. International observers described the elections as free and fair, with a voter turnout of 78 per cent despite threats of violence by a break-away Maoist group. The Nepali Congress (NC) and the Communist Party of Nepal (Unified Marxist-Leninist) or CPN (UML) were elected to govern Nepal under a coalition agreement that gave them an almost two‑thirds majority in the Assembly. The UCPN-M, which had led the insurgency and had dominated the 2008 election, managed to secure only 80 of the 575 directly elected seats.
2.6 An 85 per cent majority vote by Constituent Assembly lawmakers on 16 September 2015 approved a new Constitution which was subsequently promulgated on 20 September 2015. The new Constitution was agreed upon after considerable negotiation and delays. The political stalemate surrounding the development of a new constitution had ended in June 2015 when the four major political parties agreed to proceed with negotiations, focusing on the key points of federalism, the form of government and elections, and the judiciary. Under the new Constitution, Khadga Prasad Oli of the CPN-UML was elected Prime Minister in October 2015.
2.7 On 25 April 2015 a 7.9 magnitude earthquake struck Nepal. The earthquake and its subsequent aftershocks killed an estimated 8,891 people and injured tens of thousands of people. Significant damage was incurred to national infrastructure, buildings and homes and reconstruction efforts continue several years after the disaster.
2.8 A border blockade was imposed, notionally implemented by Madhesi communities but unofficially blamed on India, from September 2015 to February 2016. The blockade caused shortages of fuel and other commodities throughout Nepal, severely affecting its economy.
2.9 Several changes of government, including realignment of coalitions, resulted in two further changes of Prime Minister before national elections were held over two phases in November and December 2017. These saw landslide results in favour of the Left Alliance comprised of the CPN-UML and the CPN-Maoist Centre parties. The two parties merged in early 2018 to form the Nepal Communist Party (NCP), which now holds a close to two-thirds majority in the Federal Parliament, led by Prime Minister KP Oli for his second term. The coming years will see Nepal’s complex transition to a new federalist system.[1]
…
[1] DFAT Country Information Report – Nepal, 1 March 2019, pp.8–9.
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.38 All Nepali citizens 18 years and older are eligible to vote. Under the 2015 Constitution seats in the Federal Parliament are reserved for women through quotas, and substantial, proportional allocations made for Madhesis, Dalits, and other minority groups.
3.39 Political affiliation, both at an organisational and individual level, is an important aspect of identity. This was a cause of instability during the conflict and in the years immediately following. Political youth wings, bandhs (strikes, see Private Sector/Business Community), demands for donations from local authorities and the private sector, and the obstruction of tender-bidding processes in line with political interests all contributed to this instability.
3.40 A diverse and competitive array of political parties operates in Nepal, though the system has faced considerable instability in recent years. Unlike the 1990 constitution, the 2015 Constitution has no limitation on parties formed along ethnic lines leading to many ethnic groups to participate formally in political processes, motivated by a belief that they have been excluded from a society that has historically been ruled by dominant ethnic and caste groups.
3. 41 Nepal has enjoyed several years of political stability. A lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. DFAT assesses the risk of a return to widespread violence is low.
Fear of Maoists
3.42 Communist parties won the 2017 elections in both the parliament and the provincial assembly. The main far left parties, Communist Party Nepal (Unified Marxist-Leninist) CPN‑UML and Communist Party Nepal (Maoist Center) merged in 2018. Before political groups were allowed to politically organise in 2015, Maoists recruited from among ethnic minorities who participated in their insurgency.
3.43 Tens of thousands of people displaced by the long period of conflict in Nepal (see Recent History) remain displaced. As part of the peace process, Maoists and the government agreed on a programme to allow displaced people to return to their homes. The land once belonging to many displaced people had since become occupied illegally or been given away or sold by the Maoists during the civil war. Some displaced people lack documentation, preventing them from reclaiming their property.
3.44 While the two main Maoist parties have merged, the movement has a history of internal splits and the ideology of the two main groups, while merged, is inconsistent. Historical claims of abuses during the insurgency remain unresolved.
3.45 Maoists have the potential to control the national agenda without resorting to violence. In general, DFAT assesses that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants.[2]
[2] DFAT Country Information Report – Nepal, 1 March 2019, p.19.
The Tribunal also extracts (underlining added) the more recent information – Common Claims, Nepal, provided by the Country of Original Information Services Section of the Department of Home Affairs dated 13 July 2021.
Political violence
The consolidation of the CPN-MC and the CPN-UML into the NCP was seen as a positive step that could contribute to consensus-building in the future in Nepal.[3] Nepal’s party system remains fairly fractionalised and elite-dominated, although the formation of the NCP was reported to mark a step in the right direction.[4] Nepal’s political parties have a long history of support for democracy.[5] However, despite democratic improvements and political stabilisation, representative rule is not fully consolidated.[6] The close relationship between Nepal’s civilian government and its armed forces has increased with the NCP in power and with a significant number of Maoist ex-combatants integrated into the Nepal Army from 2012 to 2014.[7] In 2020, there was infighting over power-sharing arrangements and use of political power among senior Nepal Communist Party leaders from the Maoist and UML groups.[8] On 7 March 2021, Nepal’s Supreme Court found that the NCP had been illegitimately registered in May 2018, and said the CPN-UML and the CPN (Maoist Centre) would return to the pre‑merger stage.[9] (See: ‘Dissolution, reinstatement and dissolution of Parliament’ above.)
Madhesi staged protests for greater political representation in the Terai between September 2015 and January 2016 and again in March 2017 resulting in the deaths of security force personnel and protesters. From September 2015 to January 2016, Madhesi and Tharu groups staged protests at the largest land border crossing with India due to concerns about the demarcation of provincial boundaries under the constitution’s state-based federal structure.[10] Protests in the Terai resulted in the deaths of 50 civilians and police officers.[11] In March 2017, five people were killed and dozens injured when police intervened in a protest in Saptari district in the Terai region that became violent.[12] While previous Madhesi demonstrations were met with violent reprisals from security forces, there were no major incidents recorded in 2019.[13] In March 2019, CK Raut, the leader of the Alliance for Independent Madhesh (AIM), was released from detention after agreeing to refrain from supporting an independent Madhesi state. In May 2019, the AIM was renamed the Janamat (Mandate) Party and endorsed Raut’s agreement with the government.[14] Janamat held a peaceful rally in Kathmandu and competed in a local by-election during November 2019.[15]
There were a number of bombings in the lead-up to 2017 parliamentary and provincial assembly elections in Nepal, reportedly involving a Maoist splinter group. Nepal held local district elections in three phases in May, June, and September 2017, and provincial and national parliamentary elections [16] in two phases on 26 November and 7 December 2017.[17] A Maoist splinter group was blamed for a series of small bomb blasts in the run up to the elections held on 26 November 2017.[18] During the campaign, Maoist militants opened fire on politicians, blew up vehicles, planted land mines and targeted civilians in dozens of attacks, injuring at least 17 people, some seriously.[19] Voting reportedly was largely incident-free,[20] although bombings and clashes between voters occurred on polling day[21] and between the election dates in November and December 2017.[22] The government attributed the majority of attacks to a Maoist splinter group, also known as the ‘Netra Bikram Chand Group’ or ‘Biplav Group’.[23]
Members of the Maoist splinter group, the Netra Bikram Chand (Biplav)-led Communist Party of Nepal, continued to be arrested and imprisoned, after the government declared it a criminal group in March 2019. The group was suspected to have been involved in a number of bombings in Nepal.[24] In May 2018, Nepal’s Home Minister Ram Bahadur Thapa said the group’s activities were aimed against the state.[25] In February 2019, the Chand-led Communist Party of Nepal claimed responsibility after a bomb exploded at the Kathmandu offices of multinational telecommunications company, Ncell, and more than a dozen of the company’s towers were bombed. One person died and two were seriously injured in the Kathmandu bombing. The Chand-led group said that the attack was to punish the company for not paying taxes to Nepal’s government. They said they had no intention of attacking the general public and apologised for the death of a civilian.[26] In March 2019, police said they had arrested at least 70 cadres of the Chand-led group across the country and seized weapons following the February bombings.[27] Also in March 2019, a government cabinet meeting declared the Chand-led party a criminal group and decided to curb its activities.[28] Scores of its leaders were subsequently arrested,[29] as were hundreds of cadres.[30] In June 2019, police in Sarlahi killed Kumar Paudel, a district leader of the Chand-led group, in what an investigation by the National Human Rights Commission (NHRC) concluded was an extrajudicial killing.[31]
During 2020, a number of leaders and cadres of the Chand-led party were arrested.[32] In February 2020, Nepal’s Ministry of Home Affairs directed Nepal Police to take action against the police officers involved in the killing of Kumar Paudel, based on the NHRC report.[33] Also in February 2020, Nepal’s Supreme Court issued a contempt of court case against members of the Nepal Police, including its chief, after three Chand-led party members were arrested immediately upon their release.[34] In May 2020, the National Human Rights Commission expressed concerns over the arbitrary and frequent arrests of a Chand-led party leader from Khotang district.[35] In December 2020, members of the Chand-led Communist Party of Nepal abducted and killed a school principal in Morang.[36] In February 2021, police filed a charge-sheet at the Morang District Court against 42 members of the party, including Chand, in connection with the murder.[37]
The Chand-led party signed an agreement with the government in March 2021 in which it agreed to abandon violence. In February 2021, it was reported that according to Home Ministry officials, more than 2,000 leaders and cadres of the Chand-led party had been arrested and more than 135 were in jail.[38] In the same month, the Chand-led party issued a statement expressing a willingness to engage in dialogue with the government.[39] In March 2021, the government formed a team under Home Minister Ram Bahadur Thapa to hold talks with the Chand-led party.[40] Following negotiations, the parties signed a three-point agreement, under which the Chand-led party would seek to address all of its political issues through dialogue and carry out all political activities in a peaceful manner, and the government would, in return, lift the ban imposed on the party’s activities and initiate a process to release the party’s cadres and withdraw cases against them.[41] Despite the agreement, commentators note there is no mention in the agreement about the Chand-led party handing over its arms, nor what activities the party would be involved in following the agreement.[42] In May 2021, the Chand-led party split after politburo member Krishna Prasad Dhamala, aka Gambhir, formed a new party, the Jana Samajwadi Manch-Nepal (JSM-N). As well, in a television interview in June 2021, Chand reportedly declared that his party was not yet into peaceful politics.[43]
There has been a bombing by another radical group in Nepal. After reaching agreement with the Chand-led party, Prime Minister Oli said the politics of violence had ended in the country.[44] On 14 March 2021, however, a number of people were injured in a bomb explosion at the Land Revenue Office in Lahan, Siraha. The Jaya Krishna Goit faction of Janatantrik Tarai Mukti Morcha (Revolutionary) claimed responsibility for the explosion. This group had previously been involved in bombings resulting in injuries to a number of people during 2017 and 2018.[45]
Background to monarchist parties in Nepal
[3] ‘BTI 2020 Country Report - Nepal’, Bertelsmann Stiftung, 29 April 2020, p.4, 20200501174827
[4] ‘BTI 2020 Country Report - Nepal’, Bertelsmann Stiftung, 29 April 2020, p.15, 20200501174827
[5] ‘BTI 2020 Country Report - Nepal’, Bertelsmann Stiftung, 29 April 2020, p.35, 20200501174827
[6] 'Freedom in the World 2020 - Nepal', Freedom House, 4 March 2020, C. Functioning of Government, 20200604154218
[7] ‘BTI 2020 Country Report - Nepal’, Bertelsmann Stiftung, 29 April 2020, p.7, 20200501174827; 'Can Nepal’s Army Become a Threat to Its Democracy?', Niraula, S, The Diplomat, 8 September 2020, 20200909084455
[8] ‘Two years since the birth of the Nepal Communist Party, not much to show except for infighting and power politics’, Kathmandu Post, 15 May 2020, 20200615110601
[9] 'Supreme Court awards Nepal Communist Party to Rishiram Kattel', Pradhan, T R, The Kathmandu Post, 7 March 2021, 20210310140100
[10] ‘DFAT Country Information Report – Nepal’, Department of Foreign Affairs and Trade, 21 April 2016, p.8, CIS38A8012676
[11] ‘Amnesty International Report 2015/16 – Nepal’, Amnesty International, 23 February 2016, pp.1–2, NGE43874C124; ‘Nepal votes to amend constitution in bid to resolve months-long stand-off with protesters’, Australian Broadcasting Corporation, 24 January 2016, CX6A26A6E16062
[12] ‘Nepal Investigation urgently needed after security forces shoot protesters dead’, Amnesty International, 7 March 2017, CXC9040664916; ‘Nepal: Use Proportionate Force While Policing Protests’, Human Rights Watch, 9 March 2017, CXC9040663709; ‘Country Reports on Human Rights Practices for 2017 – Nepal’, US Department of State, 20 April 2018, Section 1(a), pp.1–2, OGD95BE927382
[13] 'Freedom in the World 2020 - Nepal', Freedom House, 4 March 2020, E1, 20200604154218
[14] 'Freedom in the World 2020 - Nepal', Freedom House, 4 March 2020, Key Developments in 2019 & B1, 20200604154218
[15] 'Freedom in the World 2020 - Nepal', Freedom House, 4 March 2020, B1 & E1, 20200604154218
[16] ‘Human Rights Watch World Report 2018’, Human Rights Watch, 18 January 2018, NGED867A63, p.388
[17] ‘Can Nepal Find Political Stability?’, The Diplomat, 16 November 2017, CXC90406617733
[18] ‘Nepal votes in landmark poll; army blames rogue Maoists for blasts’, Reuters, 26 November 2017, CXC90406618301
[19] ‘Violence Flares as Nepal Heads to Landmark Elections’, The New York Times, 25 November 2017, CXC90406618274
[20] ‘Nepal votes in landmark poll; army blames rogue Maoists for blasts’, Reuters, 26 November 2017, CXC90406618301
[21] ‘Elections held amidst explosions and clashes’, The Himalayan Times, 27 November 2017, CXC90406618360; ‘Many deprived of right to vote, says NHRC’, The Himalayan Times, 27 November 2017, CXC90406618361
[22] ‘No end to bomb attacks on candidates’, The Himalayan Times, 30 November 2017, CXC90406618509; ‘NC aggrieves death of temporary police in blast in Dang’, The Himalayan Times, 29 November 2017, CXC90406618520; ‘NC candidate critically hurt in Udayapur blast’, The 29 November 2017, CXC90406618536 ‘11 injured in explosion during election rally in Kathmandu’, Asian News International, 4 December 2017, CXC90406618724
[23] ‘Country Reports on Terrorism 2017’, US Department of State, September 2018, pp.182–183, OGD95BE927706
[24] ‘Partial effects of Nepal Bandh felt in Rauthat, NA defuses tiffin bomb’, The Himalayan Times, 14 August 2018, CXBB8A1DA33519; ‘IED goes off in Biratnagar metropolis office’, The Himalayan Times, 12 August 2018, CXBB8A1DA33389; ‘Blast at India-developed hydroelectricity project in Nepal’, Press Trust of India, 14 June 2018, CXBB8A1DA29647; ‘Bomb goes off at Arun III office’, Rastriya Samachar Samiti, 13 June 2018, CXBB8A1DA29640; ‘IEDs go off at different places across country’, The Himalayan Times, 14 May 2018, CXBB8A1DA27323; ‘Biplav-led Maoist cadres accused of setting off explosion bailed, rearrested from Dhankuta’, The Himalayan Times, 13 April 2018, CXBB8A1DA25611; ‘Two held for blast’, The Himalayan Times, 24 April 2018, CXBB8A1DA26047
[25] ‘Chand-led party’s activities against statute, state: Home Minster Thapa’, The Himalayan Times, 24 May 2018, CXBB8A1DA27984
[26] ‘Are the Maoists Rising Again in Nepal?’, Bhattarai, K D, The Diplomat, 13 March 2019, 20190314183228
[27] ‘Nepal Police, APF to nab CPN cadres’, Satyal, U, The Himalayan Times, 14 March 2019, 20190314185233
[28] ‘Are the Maoists Rising Again in Nepal?’, Bhattarai, K D, The Diplomat, 13 March 2019, 20190314183228
[29] ‘Nepal: Dangerous Slide – Analysis’, Singh, S B, South Asia Terrorism Portal, 4 June 2019, 20190606163251
[30] ‘Chand outfit’s Sarlahi district in-charge killed in police firing’, Sapkota, J, The Kathmandu Post, 20 June 2019, 20190704171736
[31] ‘Despite poor rights record, Nepal eyes another term on Human Rights Council’, Giri, A, The Kathmandu Post, 12 September 2020, 20200915103714; 'Country Reports on Human Rights Practices for 2020 - Nepal', US Department of State, 30 March 2021, Section 1(a), p.2, 20210331125921; ‘Chand outfit’s Sarlahi district in‑charge killed in police firing’, Sapkota, J, The Kathmandu Post, 20 June 2019, 20190704171736
[32] 'NCP (Chand) leader arrested from Chitwan', Rimal, T R, The Himalayan Times, 5 May 2020, 20200507135141; 'CPN trade union chairperson jailed', Himalayan News Service, 3 March 2020, 20200304100932; 'Two Biplav-led CPN cadres arrested in Rautahat', Jha, P K, The Himalayan Times, 28 January 2020, 20200129095950; 'Chand-led CPN cadres arrested', Himalayan Times, The, 22 March 2020, 20200325122635; 'Three NCP (Chand) cadres arrested with explosives in Ilam', Rastriya Samachar Samiti, 5 May 2020, 20200507132713
[33] 'Cops involved in killing CPN leader to face action', Satyal, U, The Himalayan Times, 4 February 2020, 20200204145323
[34] 'Supreme Court orders contempt of court case against four police officials, including the Nepal Police chief', Dhungana, S, The Kathmandu Post, 29 February 2020, 20200302120546
[35] 'NHRC concerned about CPN leader’s arrest', Himalayan News Service, 31 May 2020, 20200601173018
[36] 'Chand party’s killing of school principal is a grim reminder of the Maoist conflict', Ghimire, B, The Kathmandu Post, 10 December 2020, 20201211095024
[37] 'Chand-led party expresses willingness to hold dialogue with the government', Pradhan, T R, The Kathmandu Post, 21 February 2021, 20210223114358
[38] 'Chand-led party expresses willingness to hold dialogue with the government', Pradhan, T R, The Kathmandu Post, 21 February 2021, 20210223114358; See also: 'Nepal: Assessment 2021 – Analysis', South Asia Terrorism Portal, 11 January 2021, 20210112121642
[39] 'Chand-led party expresses willingness to hold dialogue with the government', Pradhan, T R, The Kathmandu Post, 21 February 2021, 20210223114358
[40] 'Oli takes initiatives for talks with Chand party as he struggles to stay afloat', Giri, A, The Kathmandu Post, 2 March 2021, 20210310181551
[41] 'Chand party agrees to shun violence, government lifts ban', Pradhan, T R, The Kathmandu Post, 5 March 2021, 20210310174526; 'Nepal rebel group agrees to abandon violence under deal with government', Sharma, G, Reuters, 4 March 2021, 20210310184310
[42] 'Chand commits to peaceful politics but many questions remain unanswered', Pradhan, T R, The Kathmandu Post, 6 March 2021, 20210310170441
[43] 'Nepal: Political Volatility – Analysis', Singh, S B, South Asia Terrorism Portal (SATP), 29 June 2021, 20210629095054
[44] 'Eight injured, two critically, in a blast at a government office in Siraha', Magar, B J & Pradhan, T R, The Kathmandu Post, 15 March 2021, 20210315145639
[45] 'Eight injured, two critically, in a blast at a government office in Siraha', Magar, B J & Pradhan, T R, The Kathmandu Post, 15 March 2021, 20210315145639; 'One Siraha IED explosion suspect held', Himalayan News Service, 16 March 2021, 20210317110857; Common Claims Nepal, Country of Origin Information Services Section of the Department of Home Affairs dated 13 July 2021, pp.14–17

The RPP, also known as the National Democratic Party, is a historically monarchist party that was formed in 1992 by a ‘merger of two groups that both called themselves the National Democratic Party, one led by S.B. Thapa and the other led by L.B. Chand’.[46]
[46] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp 1030-1040, – Accessed 4 August 2010, p 1036.
Factionalism along Thapa versus Chand lines eventually led to splits in the RPP. The first of these ruptures occurred in early 1998, when the RPP ousted Chand and nine of his supporters for lack of loyalty to Thapa in his then position as Prime Minister. Chand went on to form a ‘new RPP’, ‘RPP (Chand)’, but in January 2000 – following the party’s dismal showing in the 1999 elections – RPP (Chand) merged back into the RPP.[47] Further rifts between the Thapa and Chand factions resulted in another split in 2005: this time, it was Thapa and his supporters who left and formed their own party – the Rashtriya Janshakti Party (RJP).[48] Unlike Chand, S.B. Thapa did not return to the RPP, but his absence did not end the divisions within the party.[49] The RPP-Nepal (‘RPP-N’) was born out of the RPP’s third split, in 2006.[50]
[47] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp 1030-1040, – Accessed 4 August 2010, p 1036.
[48] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp 1030-1040, – Accessed 4 August 2010, p 1036.
[49] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp 1030-1040, – Accessed 4 August 2010, p 1037.
[50] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp 1030-1040, – Accessed 4 August 2010, p 1037.
Throughout the mid-2000s, the RPP was, by its own report, taking an ‘increasingly pro‑democratic stance’,[51] but there were elements within the party that ‘approved participating in King Gyanendra’s government’ after he seized absolute power in 2005.[52] In essence, these individuals were out of step with an RPP that was beginning to question the King’s actions and distance itself from the monarchy.[53] In January 2006, RPP President Rana expelled 10 of these ‘royalist dissidents’, who went on to form the RPP‑Nepal (RPP-N) under the leadership of Kamal Thapa.[54]
[51] “About us: Rastriya Prajatantra Party (RPP)” n.d., Website of the RPP, - Accessed 30 July 2010.
[52] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp 1030-1040, – Accessed 4 August 2010, p 1038.
[53] “The RRP: Radicalism or Ruse?” 2007, Nepalinetbook (blog), 3 December, - Accessed 30 July 2010 – Attachment 1; “RPP doesn’t favour monarchy: Rana” 2007, Nepal News, 19 August, - Accessed 2 August 2010 – Attachment 2; Chapagain, K 2010, “Nepal: Third Failure in Parliament to Elect a Premier”, New York Times, 2 August, - Accessed 3 August 2010; “About us: Rastriya Prajatantra Party (RPP)” n.d., Website of the RPP, - Accessed 30 July 2010.
[54] “Nepal” 2010, Political Handbook of the World Online Edition, eds A Banks, T Muller, W Overstreet, and J Isacoff, CQ Press, Washington, pp 1030-1040, – Accessed 4 August 2010, p 1037. Please note, Kamal Thapa is not to be confused with S.B. Thapa
The position on the monarchy remained at this point a key difference between the RPP and RPP‑N. Sources suggest that the RPP has retreated from a pro-royalist stance, while the RPP‑N continues to advocate a return to a Hindu monarchist state. The International Crisis Group report also notes that the RPP and RJP both ‘accept that Nepal should remain a republic, but ‘are unclear about what they stand for.’[55]
Terai region and political groups for Madhesi recognition and rights
[55] International Crisis Group 2012, Nepal’s Constitution (II): The Expanding Political Matrix, Asia Report N°234, 27 August, p. 22
The DFAT Country Information Report – Nepal, 1 March 2019 provides the following information on the Madhesi and political opinion:
The Madhesi are a group of people of Indian origin that live in the Terai. Many have continuing strong socio-cultural and ethnic links across the border with India. The term ‘Madhesi’ refers specifically to non-tribal, caste Hindus of Indian origin that live in the Terai. Many Madhesis consider those living in the Terai who do not fit this definition (including Muslims, Tharus, Pahadis, and indigenous groups who predated Madhesi immigration) to be ‘foreigners’. Less than 50 per cent of the Terai population are Madhesi, and many people from other parts of Nepal have moved to the region seeking jobs.
Madhesis comprise around 20 per cent of Nepal's population but are underrepresented in politics, public service jobs, and the military. Hindi-speaking Indian Madhesis were historically denied citizenship certificates (and therefore also land and access to government benefits) under the Citizenship Act of 1964 and the 1990 Constitution owing to Nepali language requirements. The citizenship law was amended in 2006 to allow people born in Nepal before 1990 and those residing there permanently to acquire Nepali citizenship, but this law contained a short window period for Madhesis to claim citizenship that closed in November 2008.
Efforts by the government to introduce compulsory Nepali language in the region have been seen by some Madhesis as a further attempt to discriminate against them. Economic and political favouritism (by way of land allocations) towards the upper caste Pahadis (hill-dwelling Hindus) was introduced under the ‘Panchayat’ system (1962–1990, see Recent History). This, as well as allegations of economic exploitation of the resource-rich Madhes region, have exacerbated feelings of discrimination by the Madhesis resulting in decades of political activism and tension between Madhesis and members of other ethnic minorities living in the Terai region. The extent to which such sentiments are shared throughout the entire community is unclear.
A pro-Madhes autonomy group (the United Democratic Madhesi Front – UDMF) was formed in 2007. The group has signed two peace agreements with the Nepali government with the principal demand being the ‘liberation’ of the Terai region and the creation of a single autonomous unit called Madhes in a new federal system for Nepal. The group has also demanded greater representation in political, military and economic affairs, often at the exclusion of other ethnic groups such as the Tharu in the western regions of the Terai. Following a period of negotiations, some Madhesi aligned to political parties and participated in the 2017 election.
DFAT assesses that Madhesis in the Terai experience moderate official discrimination because of on-going difficulties in obtaining citizenship, which impacts on their ability to access government services. The 2015 Constitution was amended in early 2016 partly in response to Madhesi demands around political representation. Violence in the region remains sporadic, as is evidenced by the protests of late 2015 and early 2016, when upwards of 40 people are reported to have been killed.
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision‑making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for … [but this should not lead to] … an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191] where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Nepal and his claims will be assessed against Nepal.
The Tribunal has a number of credibility concerns with the applicant’s claims outlined below.
Firstly, the applicant has not been consistent in terms of the timing and nature of his political involvement in the RPP during the period he lived in Baglung before moving to Kathmandu in 2006.
In the hearing, the applicant indicated that he had been a supporter of the RPP since he was [age] however he did not seriously become involved until 2053 in the Nepalese calendar (the applicant moved to Kathmandu in 2062 in the Nepalese calendar). The applicant indicated that in 2053 in the Nepalese calendar, he became the Chief of the party’s Village Development Committee, a position he held until 2056 when he became involved in the party at a district level. The district level activity involved meetings, attending committees and listening to villagers. The applicant indicated that another individual then filled the position of Chief of the party’s Village Development Committee.
The Tribunal noted to the applicant that in the delegate’s interview as part of his first visa application, he indicated that in Baglung he could not give political activities much time and was not really active until he went to Kathmandu. The Tribunal put to the applicant that this was entirely inconsistent with his significant claims in the hearing of political activities starting many years before he left for Kathmandu. In response, the applicant indicated that he was only asked in the interview a short question and did not provide the detail he is now providing.
The Tribunal does not accept this explanation as explaining the inconsistency. If the applicant had undertaken the significant claimed political activities for many years in Baglung prior to leaving for Kathmandu, the Tribunal does not accept that the applicant would have told the delegate that he could not give much time to political activities in Baglung and was not really active.
This significant inconsistency is undermining of the credibility of the applicant.
Secondly, a supporting statement provided by the applicant of his involvement in the RPP is inconsistent with his claimed involvement as indicated above. The applicant has provided a letter dated 8 December 2020 from the [position] of the RPP which indicates that the applicant joined the party in Nepalese calendar year 2056 and has been active in the party since the establishment of the RPP-N. As indicated above, the RPP-N was formed in 2006.
In the hearing, the Tribunal put to the applicant that this was inconsistent with his claims to have been involved in Baglung in the party since Nepalese calendar year 2053. In response, the applicant stated that before 2006 he was believing in the party but not formally a member.
The Tribunal does not accept that the applicant, if he was Chief of the party’s Village Development Community from the year 2053 in the Nepalese calendar as claimed, would have done so without being a member of the party.
Further, the supporting letter suggests that the applicant did not substantially become politically involved until moving to Kathmandu, which is undermining of the claim that the applicant held a substantial district level party role in Baglung from Nepalese calendar year 2056.
These concerns reinforce concerns raised in the first credibility issue.
Thirdly, the applicant has not been consistent in terms of the claimed manner of his escape when it is claimed that his property in Baglung was attacked by Maoists in 2006.
In the hearing, the applicant indicated that Maoists raided his property and that when they did so, he, his wife and his [age]-year-old daughter escaped out of the window without being seen by the Maoists. The applicant indicated that the Maoists eventually realised they had left and went looking for them without actually seeing the applicant and his family escape.
The Tribunal put to the applicant that this was inconsistent with claims made at the delegate interview in relation to the first visa application in which he indicated that when he escaped from his home, Maoists came chasing after him and threw a rock that hit him on the hand. However, the applicant then went downhill and the Maoists went uphill and that allowed him to escape.
The Tribunal put to the applicant that this is inconsistent with what he told the Tribunal, that the Maoists never saw him escape, and therefore the Maoists could not have thrown a rock at him which hit him on the hand. The applicant did not adequately explain this inconsistency. In response, the applicant indicated that a rock was thrown but did not hit him on the hand. This still implies that Maoists saw the applicant escaping in order that they could have thrown a rock at him which is inconsistent with what the told the Tribunal at hearing.
This inconsistency is undermining of the credibility of the applicant.
Fourthly, the applicant has not been consistent in terms of whether or not he went to the police in Baglung after the attack on the family home. In the hearing, the applicant indicated that he did not go to the police.
The Tribunal put to the applicant that in the interview with the delegate with respect to the second visa application, he said that he did go to the police but they said they were not willing to take complaints against Maoists.
In response, the applicant said that he did not think he said this and that he did think about going to the police in Kathmandu. At this point in the hearing, the Tribunal notes relevant to the fifth credibility issue below that the applicant indicated that he did go to the police after the attack in Kathmandu that caused him to flee the same night to India.
The applicant’s explanation at hearing does not explain the clear inconsistency between the applicant telling the Tribunal in the hearing that he did not go to the police in Baglung but telling the delegate at interview in relation to the second visa application that he did go to the police. This is undermining of the applicant’s credibility.
Fifthly, the applicant has not been consistent in terms of claims whether or not he went to the police after the claimed attack in Kathmandu in 2013 causing him to leave for India the same night.
As indicated above, at an earlier point in the hearing, the applicant did indicate that he went to police in Kathmandu after the 2013 attack.
Later in the hearing, the Tribunal asked the applicant to recount in detail exactly what happened on the day of the attack. The applicant indicated that there were 60 or 70 participants in a gathering that was taking place outside the RPP political office which was raided by members of the Young Communist League and Terai Tigers. The applicant indicated that because of his political profile he was the main target of the attack. The applicant indicated that the attackers set fire to the office and were looking for the applicant.
The applicant indicated that he escaped to a temple where he stayed until nightfall. A friend who had a hardware store indicated that there were arrangements for a truck to go from his store to India that night in which the applicant could travel. The applicant indicated that he went from the temple to the hardware store where he took the truck that night to India.
In the hearing, the Tribunal went through with the applicant, for a second time, exactly what happened after the attack, and the applicant confirmed what is recounted above.
The Tribunal noted to the applicant that nowhere in these oral accounts to the Tribunal does the applicant indicate that he went to the police to report what had happened. In response, the applicant indicated that it was his friend who went to the police on his behalf but the police would not do anything.
The Tribunal put to the applicant that he previously indicated that it was he who went to the police. The applicant then indicated that after his friend went to the police without a result, he and his friend subsequently went to the police but the police would not help.
The Tribunal put to the applicant that it had significant credibility concerns with this evidence and its view that the applicant had manufactured the claim that he went to the police with his friend when the inconsistency with his prior evidence was put to him. The applicant maintained that he went to the police with a friend.
The Tribunal also noted to the applicant that his written claims as part of his first visa application recount in some detail what happened after the attack in 2013 and what then occurred that afternoon and evening before the applicant travelled by truck to India. The Tribunal indicated that nowhere in those written claims is there a reference to the police being contacted by the applicant (or indeed a friend of the applicant’s).
In response, the applicant indicated that this may have been omitted from the account.
Considering all of this evidence, the Tribunal is not satisfied that explanations have been given by the applicant to account for stark inconsistencies in evidence as to whether or not the applicant went to the police after the attack in Kathmandu in 2013.
Whether the applicant went to police or not is a key aspect of what did or did not happen on the day of the claimed attack in 2013. The Tribunal considers that the stark inconsistencies are undermining of a key aspect of what the applicant claims happened on that day and this serves to infect all of what is claimed by the applicant to have happened on that day.
Sixthly, the applicant has given unsatisfactory evidence regarding whether he was involved in the RPP or RPP-N and provided inconsistent dates as to when the RPP-N split from the RPP.
Written claims of the applicant refer to his involvement in the RPP, but in the delegate interviews the applicant refers to involvement with the RPP-N. In the delegate interview with respect to the second visa application, the applicant indicated that the split occurred in 1990. In contrast, in the Tribunal hearing, the applicant indicated that the split occurred in the Nepalese calendar year 2065 or 2066 (approximately 2008 and 2009).

The applicant in the hearing was prevaricating as to whether it was the RPP or RPP-N that he had been involved with before being more definitive that it was the RPP-N.
The Tribunal noted that the supporting letters that he had provided in 2020 were from the RPP rather than the RPP-N. In response, the applicant indicated that this was because the parties had merged by this point in time.
Although it may be the case that the parties had merged at this time, the letters write of the applicant’s involvement in the party, which implies the RPP, given that it is office holders of this organisation that the supporting letters are written by.
The Tribunal also has concerns that the applicant, if he held leadership roles in either or both of the political parties, would not be clear as to when the split between the parties occurred, particularly given that it occurred in the same year when the applicant relocated to Kathmandu.
This evidence creates some credibility concerns for the applicant, particularly as to his claimed level of political involvement. If the applicant had held leadership positions in the RPP or RPP‑N, the Tribunal does not think the applicant would prevaricate as to which party he was involved with or be unable to provide the Tribunal with an accurate date as to when the RPP‑N split from the RPP.
Seventhly, the applicant has not been consistent in terms of whether or not he ever returned from Kathmandu to Baglung. In the hearing, the applicant indicated that he never returned to Baglung from Kathmandu. The Tribunal put to the applicant that in the delegate interview as part of the first visa application, he said that he got his passport in Baglung in 2009 and applied for his citizenship certificate in person in Baglung in 2012.
In response, the applicant indicated that he initially answered in terms of whether he ever went to live in Baglung. This is not the question that the Tribunal asked of the applicant; rather, it asked whether or not he had ever returned to Baglung.
The Tribunal also notes that in the interview as part the first visa application, the applicant indicated that he never returned to Baglung after leaving for Kathmandu in 2006.
Although these are contextual matters not core to the applicant’s claims for protection, such inconsistencies create credibility concerns as to the applicant’s overall claimed circumstances.
The Tribunal considers the seven credibility issues outlined. There are numerous credibility concerns including on quite significant matters relevant to the applicant’s claims for protection. Considered together, the Tribunal does not consider that the applicant is a credible or truthful witness as to his substantive claims for protection.
The Tribunal is not satisfied that the applicant had any substantial political involvement in Baglung leadership roles in the RPP, the Village Development Committee or at the district level. The Tribunal is not satisfied that the applicant or his family were targeted for attack by Maoists in Baglung. The Tribunal is not satisfied that the applicant’s property in Baglung was attacked by Maoists in the circumstances claimed causing the applicant and his family to flee from their homes.
Having said that, the Tribunal is prepared to accept that the applicant decided to relocate to Kathmandu in 2006 as a result of broader conflict at the end of the civil conflict in Nepal. However, the Tribunal is not satisfied that the applicant himself was specifically targeted for harm.
The Tribunal is not satisfied that the applicant in Kathmandu held leadership positions in either the RPP or the RPP-N or that he was [Position 1] of [a committee]. The Tribunal is not satisfied that the applicant was targeted on any ocassion for attack by Maoists or the Terai Tigers due to his political activities. The Tribunal is not satisfied that a political event attended by the applicant in 2013 was raided by Maoists and/or Terai Tigers who were specifically searching for the applicant with a view to capturing and harming him. The Tribunal is not satisfied that the applicant escaped from this event, with those individuals seeking to capture him, making arrangements that night to travel by truck to India to escape capture. The Tribunal is not satisfied that the applicant or his friend reported the attack to police that night.
The Tribunal is not otherwise satisfied that the applicant was attacked or hunted by Maoists or the Terai Tigers during his years in Kathmandu.
The Tribunal is not satisfied that the applicant was or currently is of adverse interest to Maoists in Nepal or members of the Terai Tigers. The Tribunal is not satisfied that Maoists or the Terai Tigers would seek to find and inflict serious or significant harm on the applicant if he were to return to Nepal. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm as a result of his past political involvement or any organisation in Nepal having adverse interest in the applicant.
While the Tribunal accepts that the applicant left Nepal for India in 2013, it is not satisfied that he did so to escape the risks from the Maoists or Terai Tigers as claimed. The Tribunal is not satisfied that the applicant received threatening phone calls from anyone in Nepal while he was in India.
In making these findings, the Tribunal has taken into account the two supporting letters from claimed individuals in the RPP attesting to his leadership activity, leadership positions and harm faced. These supporting letters do not overcome the cumulative impact of the credibility concerns identified. The Tribunal notes the supporting letter dated 8 December 2020 only indicates the applicant’s active involvement in the party since 2006 which is inconsistent with the applicant’s claims at hearing as to significant involvement for at least the nine years prior to that. The supporting statements could readily have been fraudulently created or provide untruthful information. They are taken into account but do not counter the credibility concerns identified.
Having made these findings, the Tribunal is prepared to accept that the applicant had some degree of support for the RPP in Baglung, but was not during this period actively politically involved.
The Tribunal is also prepared to accept that in Kathmandu, the applicant had some involvement with a [committee] involving Baglung connected with the RPP and/or the RPN‑P. However, the Tribunal is not satisfied that the applicant held the position of [Position 1] of the [committee] or any other leadership position.
The Tribunal put to the applicant at the hearing that it had many credibility issues with his claims and significant doubts that he left his home area for reasons related to being attacked by Maoists taking his property and that he held political leadership positions in Kathmandu for a number of years. However, the Tribunal is inclined to accept that he had some degree of lower‑level involvement in the RPP and/or the RPP-N. The Tribunal referred to independent information as to the changed political situation in Nepal and relative stability in being able to be politically active. The Tribunal qualifies this by accepting that there are some problems from Maoist splinter groups. However, the Tribunal would be inclined to consider that the applicant would be able to participate without significant difficulty as an ordinary member of a royalist political party.
In response, the applicant agreed that the political environment in Nepal has improved, in terms of what is written. However, the applicant indicates that what happens in reality is different and there are problems and harassment.

100. The Tribunal is satisfied that the independent information provides a reasonably accurate account as to the situation Nepal in terms of the political environment and risk of harm. While the Tribunal accepts that Nepal is not free from political difficulties, it is not satisfied that, if the applicant returned to Nepal and wished to participate, as the Tribunal believes he might, as an ordinary member of a royalist political party, he faces a real chance of serious or significant harm as a result. The Tribunal is not otherwise satisfied that the applicant would seek to increase his political involvement beyond being an ordinary member of a political party.
101. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious or significant harm as a result of any political activity he would be involved in in Kathmandu on return.
102. Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
103. In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for the reasons set out s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as necessary and foreseeable consequence of being removed from Australia to Nepal, the applicant faces a real risk of significant harm.
104. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

107. DECISION
The Tribunal:
a.affirms the decision not to grant the applicant a protection visa in matter 1909021 (Safe Haven Enterprise visa application made on 5 December 2016); and
b.sets aside the decision in matter 2102469 to refuse to grant the applicant a Safe Haven Enterprise visa for the visa application made on 13 October 2020 and substitutes it with a decision that the visa application was not valid.

David McCulloch
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.
…

[2023] AATA 3435

20 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

[date]/05/2013	Arrived in Australia
03/07/2013	Attended arrival interview5
24/07/2013	Released from detention after being granted Humanitarian Stay (class UJ, subclass 449) visa and Bridging E (class WE, subclass 050) visa
18/04/2016	s46A bar lifted for purpose of TPV and SHEV only
05/12/2016	The applicant lodged a first Safe Haven Enterprise (SHEV) XE-790 visa application6
27/06/2017	The applicant’s SHEV application was refused7
30/06/2017	Immigration Assessment Authority (IAA) review of the SHEV refusal commenced
29/11/2017	IAA confirmed the SHEV refusal decision8
[date]/12/2017	Judicial review Commenced - FCC NSW - [NUMBER]
[date]/01/2019	Judicial review Result - Minister Withdraw - FCC NSW - [NUMBER]
23/03/2019	The applicant was (re)notified of the SHEV's refusal decision as he was affected by the DDB16 judgement.9
12/04/2019	AAT review commenced of the SHEV's refusal decision - this outcome is still pending
11/09/2020	Notification of invalid application for a Safe Haven Enterprise (class XE) Safe Haven Enterprise (subclass 790) visa10
25/09/2020	The applicant notified of the Minister intervening and lifting the s91K and s48A bars.11
13/10/2020	The applicant lodged a valid SHEV visa application12
02/12/2021	SHEV interview13