1909057 (Refugee)

1909057 (Refugee) [2024] AATA 4185 (1 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Komal Khatiwada (MARN: 0853554)
CASE NUMBER:  1909057
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Hee-Jung Kim
DATE:1 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 01 September 2024 at 4:50pm

CATCHWORDS
REFUGEE – protection visa – Nepal – membership of particular social group – inter-religious/inter-caste marriage – harassment, threats and ostracism by families and communities – applied after working visa application refused – no evidence provided to support claim of mental health conditions – wife’s unembellished and credible evidence and husband’s vague and sometimes exaggerated evidence – member of family unit Australian-born child – country information – multicultural society with interactions between religions and castes – growing trend of inter-caste marriages and laws protecting rights – right to enter and reside in India – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (3), 65
Migration Regulations 1994 (Cth), r 2.08, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Rajasundaram v MIMA (1999) 51 ALD 682
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 March 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Nepal, are a family consisting of wife (Applicant 1), husband (Applicant 2) and their daughter born in Australia in [year] (Applicant 3). Applicant 1 and 2 applied for the visas on 17 October 2016. Applicant 3 is taken to have applied for a visa of the same class as Applicants 1 and 2 at the time of her birth and the applications are taken to be combined.[1] The delegate refused to grant the visas to the applicants on the basis that they are not persons in respect of whom Australia has protection obligations.
[1] reg 2.08 of the Migration Regulations 1994.
Applicant 1 and 2 appeared before the Tribunal on 8 August 2024 to give evidence and present arguments. They confirmed that their daughter, Applicant 3, was not making any claims of her own but was included as their dependent child. Applicants 1 and 2 gave evidence at the hearing with the assistance of an interpreter in the Nepali and English languages. The applicants were represented in relation to the review but 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-5LA, 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 (the Department), 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under s 36(2) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and members of the same family unit
Applicants 1 and 2 provided to the Department copies of the biopage of their Nepali passports and Applicant 3’s Australian birth certificate. The delegate was satisfied of the applicants’ identities and that they are citizens of Nepal. At the hearing, the applicants presented their current Nepali passports and Applicant 3’s birth certificate. On the information before the Tribunal, I am satisfied that the applicants are citizens of Nepal and that Nepal is the receiving country for the purpose of assessing the applicants’ claims for protection under the refugee and complementary protection criteria.
On the evidence before the Tribunal, I am also satisfied that Applicants 1 and 2 are married and Applicant 3 is their child. Accordingly I find that they are members of the same family unit.
Evidence before the Department
In their protection visa application, the applicants provided the following information:
·Applicant 1 was born in [Year] in Tanahun, Nepal. She claimed that she belongs to the Magar ethnic group and her religion is Buddhism/Hindu. She claimed that she lived at an address in [Village], Tanahun, Nepal from birth to July 2011. She provided the details of her family consisting of father, mother and [brother] who reside at the family address in Tanahun, Nepal. She claimed that she contacts her grandparents in [Country] every week. She completed up to a diploma in [subject 1] in Birgunj, Nepal in November 2010. She did not provide any work history in Nepal but claimed that she worked as [occupation 1] at [a workplace 1] from June 2012 to May 2015.
·Applicant 2 was born in [Year] in Tanahun, Nepal. He claimed that he belongs to the Brahmin ethnic group and his religion is Hindu. He provided the details of his family in Nepal consisting of father, mother, [brother and sister] who reside in [Village], Tanahun. He claimed that he is not in contact with any relatives outside Australia. He completed up to [a subject 2] college course in Pokhara, Nepal in March 2004. He also completed a [subject 3] course in Australia in March 2009. He did not provide any residential or employment history in Nepal. In Australia, he worked as [an occupation 2] at various [workplace 2s] in Sydney since June 2007 to June 2015.
·Applicants 1 and 2 claimed that they started their relationship in October 2000, and they married in Nepal on [Date]. They previously had an Australian permanent resident visa application refused in November 2012. They returned to Nepal in October 2013 to see their families, and last arrived in Australia [in] December 2013.
In relation to their reasons for seeking protection in Australia, the applicants provided the following information:
·Applicant 2 came to Australia as a student for further study. Applicant 1 came to Australia as a dependent of Applicant 2. Applicant 1 left Nepal because of extreme discrimination and hatred toward her from family members and society for the intercaste marriage between Applicants 1 and 2.
·Applicants 1 and 2 were subjected to harassment, discrimination and mental torture because of their choice. They will face extreme discrimination and hatred from their families and the whole society. Applicant 2 will be forced to marry a different lady. They cannot report the circumstances to the police because they will not take action against the society. Applicant 1 moved away to live independently but it is difficult to survive peacefully in the same society. Applicant 2 came to Australia to avoid harm.
Applicant 1 provided a statutory declaration of 10 October 2016, which stated the following:
·She and her husband were in love since 2000 but they were not able to divulge their relationship to family members because of cultural differences and fear of discrimination by the society. They are both from a fundamentalist Hindu society where relationship between couples from different caste is not accepted. Such couples are discriminated and socially ostracised by the society.
·Her husband is from a higher caste ‘Brahmin’ and she is from a lower caste ‘Magar’. The relationship and marriage between people from lower and higher castes are not accepted according to Hindu religion and culture.
·In 2007, her husband came to Australia for further studies. They continued their relationship over the phone and other social media. After her husband completed his studies and was granted a temporary visa, they decided to get married and tell their parents about it. They were instantly rejected by both families. However, they could not separate and decided to get married. After the marriage, her husband took her home following their Hindu culture which requires the girl to leave her parents and live with the husband’s family. She was immediately discriminated for her caste from her husband’s family. She was not allowed to prepare food and to conduct other household activities. She was not allowed to watch TV and she couldn’t even cook the food because if she touched the food, they would not accept to eat it in the Brahmin culture. She will eat the leftovers last after all family finished eating their meals. She should clean the whole house in the early morning. She became an undeclared slave.
·As it was difficult for her to live with her husband’s parents, she requested her husband to take her to Australia. She was granted a visa as a dependent and came to Australia.
·After she arrived in Australia, she returned to Nepal once. She returned to the home of her husband’s parents, hoping that as time pass, they will accept their relationship but there was no change in their behaviour toward her.
·They tried their best to obtain residency in Australia so that they do not have to return to Nepal where they fear discrimination by the society. However, they became victims of a migration agent who gave them wrong information, and their visa application was refused.
·Her husband’s family are forcing her husband to get married to a girl of their choice and from the same caste. They are inseparable and Applicant 2 is not interested in getting married to another girl. Upon their return, they will face extreme psychological torture, discrimination and hatred. They will be persecuted by the society for entering into intercaste marriage and it will be difficult for them to survive.
Their representative provided the following in their submissions dated 14 October 2016:
·The applicants have been informed of the legal requirements for a protection visa including the definition of refugee and the real chance test, as well as the likelihood of the success/failure of their protection visa application.
·The applicants’ claim falls under the ‘religion and culture’ ground. Applicant 1 is a Hindu and from the Magar caste. She was mistreated when she married her husband who is Brahmin. They both faced discrimination and threat from their family members, relatives and society because of their marriage. They left Nepal for this reason and they fear harassment and harm by the society if they return to Nepal. Their society is conservative and follows strict rules in selecting bride and bridegroom. The applicants married without the consent of their parents.
Applicants 1 and 2 attended an interview with the Department on 22 September 2017. Their evidence at the interview is summarised in the delegate’s decision record and includes the following:
·Applicant 1 and 2’s families live opposite each other on a highway. Since their visit to Nepal in 2013, there have been no communication between either of the applicants and either of the families. They had sent money to Applicant 2’s family in the hope that this might change their minds and accept Applicant 1 but the family acted even more strongly than before. They closed the door on them on the first day and the applicant stayed in a hotel in Pokhara. They tried to rent accommodation but because it was obvious from their appearance that they were not of the same caste, no one would rent to them.
·Applicant 1’s father is the local president of the Magar Buddhist community and Applicant 2’s mother is the president of the local Hindu-Brahmin community. They are each very proud of their own culture and adhere strictly to their respective religion. Applicant 2’s parents put pressure on him to leave Applicant 1 to marry a woman of Brahmin caste.
·The applicants’ visit to their home village in 2013 aroused ‘fighting’ between the families each of which looks down on the other. It spread amongst the community involving 1,500-2,000 people. The issue quietened when the applicants left Nepal. Their return to their home village could flare up the antagonism between the families. The applicants heard that Applicant 2’s parents were considering moving house.
·The applicants do not have any contact with their siblings who live near their families. Applicant 2’s brother did not speak to the applicants while he was living in Australia until returning to Nepal 2 years ago.
·Applicant 2 claimed that the husband of another inter-caste couple who lived next door to his family committed suicide. He acknowledged that he was psychologically stable and would unlikely resort to such extreme response to the stress of his marital situation.
·Applicant 1 claimed that she was obliged to follow Hindu religion upon marriage but she personally considered herself to be Buddhist.
·Even in a different part of Nepal such as Kathmandu, they would be ignored by others because of their different castes and looked down upon for not living with their parents. There are many inter-caste marriages but theirs involves 2 different religions which makes the situation worse. They could look after themselves to meet the basic needs but they would not be able to live freely and happily as they can in Australia and it would be important for their child that people respected them.
·Applicant 2 feared returning to Nepal from the time Applicant 1 returned to Australia in 2013 but their objective was to obtain permanent residence through the Employer Nomination visa with his profession as [an occupation 2]. However he was unable to obtain the required IELTS English and the sponsor was found to be fraudulent.
·They could live in India but despite India being a multicultural nation, it has religious and cate problems like Nepal and they would face the same caste disputes as in Nepal.
Delegate’s decision
The delegate set out the extensive immigration history of Applicants 1 and 2, including Applicant 2’s first entry to Australia on a student visa in March 2007, return to Nepal [in] September 2009 to [November] 2009 and [in] October 2010 to [January] 2011, Applicant 1’s first entry to Australia as a dependent to Applicant 2 [in] July 2011, and their return to Nepal together [in] October 2013 to [December] 2013. The immigration history also noted that the applicants applied for permanent visas under the Employer Nomination Scheme which was refused and the related appeals also unsuccessful (finalised in the Federal Circuit Court [in] September 2016). Their protection visa application was lodged on 17 October 2016.
The delegate was satisfied on the evidence before the Department that Applicants 1 and 2 are married and Applicant 3 is their child. Therefore, the delegate was satisfied that Applicants 2 and 3 are members of the same family unit as Applicant 1.
The delegate considered the country information on the rights of Nepali citizens to enter and reside in India, which indicated that they do not require a visa unless entering from China and would only require their Nepali passport if entering from a third country. The India-Nepal Treaty of Peace and Friendship also indicated that unlimited stay is granted to Nepalese nationals in India and there are no restrictions on their ability to remain, reside or work in India. Based on the country information and evidence before them, the delegate was satisfied that the applicants’ Nepali passports are sufficient evidence that they have the right to enter and reside in India, and that they would not be prevented from entering or residing in India in the absence of evidence indicating that the applicants have a criminal history or are members of the Maoist party. Further, on the evidence before the Department, the delegate found that the applicants have not taken all possible steps to avail themselves of the right to enter and reside in India.
The delegate noted that the applicants did not make any claims of persecution for a s 5J(1)(a) reason in respect of India. The delegate also noted that the applicants were given an opportunity at the interview to provide any information that would indicate that they could not avail themselves of the right to enter and reside in India. The delegate noted Applicant 2’s response, being that although he acknowledged India is a multicultural country, they would encounter the same difficulties relating to caste in India, and found the response to be vague, generalised and not demonstrative of any personal difficulties the applicants would face in relation to their inter-caste marriage, particularly in the context of the size and multicultural composition of the population of India. Accordingly, the delegate found that the applicants do not have a well-founded fear of persecution and that there is no real risk they will suffer significant harm in India.

The delegate noted that the applicants have no history of political or religious activism in Nepal that would increase the likelihood of them being deported from India. Accordingly, the delegate found that s 36(3) applies to the applicants and that they have statutory effective protection in a third country. Therefore, the delegate found that Australia does not have protection obligations in respect of the applicants as outlined in s 36(2)(a) or (aa).
Evidence before the Tribunal
On 30 July 2024, the applicants’ representative provided written submissions which included the following:
·Applicant 1 fears persecution for social and cultural reasons. She belongs to a particular social group of lower caste ethnic women who married a higher caste Brahmin man. She will face serious harm and systematic and discriminatory conduct on this basis from Applicant 2’s family and the society.
·People who enter into inter-caste marriages are looked upon as social deviants and are punished for rejecting prevalent norms of society in the typical conservative nature of a Nepali society.[2] Applicant 1 is considered as a deviant and is likely to be killed at the hand of her husband’s family. She is specifically targeted because of the inter-caste marriage without the family’s acceptance which deems her as discarded and unwanted.
·Applicant 1 will likely be outcast by the family and the society making it difficult to live on her own. Such discrimination severely limits their life including their everyday experience accessing land, education, livelihood, place of worship, security and health. She is more vulnerable to harassment by members of the society because of her gender. Women in Nepal are particularly vulnerable to persecution and ostracization from family and the community following a separation or divorce. Single women in Nepal who have no family protection are not afforded protection by the Nepali authorities and laws are not enforced in relation to domestic violence against women. Authorities in Nepal are often unable or unwilling to take action against this type of harm as it is seen as a private family matter and also because they along with the general population have the same social beliefs and are hence more willing to overlook the crimes.
·Applicant 1 is afraid to return to Nepal because she believes she will not be accepted by her family; she has a young child from the marriage and fears she will be discarded by her husband’s family; she will be discriminated due to her inter-caste marriage and she will be unable to find a job or suitable accommodation to be able to survive in Nepal.
·India is not a safe third country because Applicant 1 is a woman with [Age]-year-old child as a dependent family member. Even though she is living with her husband, it will be inhuman to ask her to leave Australia and go to India as India does not have control over its protection measures to women and children. Evil practices like child marriage, domestic violence, feticide, honour killing and child labour are being practiced. Every hour a woman dies for not brining enough dowry, and there are high rates of physical assault and sexual abuse for girls.[3] It is extremely dangerous for Nepali women who are trafficked to India to serve as sexual slaves. Applicant 1 also does not understand the language spoken in India and is not able to communicate, which is essential to live a risk free life. There is a real risk for safety and security of Applicant 1 and her family.
·Even though Applicant 1 is with her husband and child, she does not have effective protection from her family and society and does not have any accommodation where she can stay upon her return to Nepal. She will be forced to separate and become vulnerable to exploitation and sexual harassment as a single woman.
[2] Tanka Mani Paudel, ‘Inter-caste Marriage in Eastern Nepal: Context and its consequences’, International Relations and Diplomacy, (February 2018, Vol 6, No 2, 93-101).
[3] Rashneet Singh, ‘Protection of women and children in India’, Child Rights Centre, Chanakya National Law University, Patna, 28 August 2020, <>
At the hearing, Applicants 1 and 2 confirmed their reason for seeking protection in Australia was their fear of harm in Nepal for their inter-caste marriage. They confirmed that their child, Applicant 3, was not raising any individual claims of her own. Applicants 1 and 2 also confirmed that as they have applied as a family and their claims are related, they did not have any concerns about their evidence being shared with each other.
After the hearing, the applicants submitted a copy of their Nepali marriage registration certificate dated [Date 1] (marriage as per social customs [took place nine days before Date 1]) and its English translation, and 5 ‘cases’ in support of their claim. The cases are summarised as follows:
·Case 1 - ‘Who is Anjana Lama Mahat?’ by Rabindra Adhikary, 17 May 2019: the source of this internet post and the qualification of the author is unclear. The article states that Anjana, a Nepali model of Tamang (Mongol) ethnicity, married a man from a higher caste, Chhetri (Mahat) family. She was murdered by her brother-in-law who was suffering from mental illness. There is no information to suggest this violence was related to Anjana’s inter-caste marriage.
·Case 2 - 'PM orders panel to probe Ajit Mijar murder’, The Himalayan Times: this undated article extract states that Prime Minister Pushpa Kamal Dahal met with a delegation from United Political Dalit Struggle Committee on 24 August 2016 and directed authorities to form a committee for investigating the alleged murder of Ajit Mijar, a Dalit youth who married a Brahmin girl. It also reports the PM stating that the current government had taken initiatives to let the Dalit community represent in the Cabinet and promote birth registration of Dalit children.
·Case 3 - ‘Inter-caste marriage behind Binu’s mysterious death’, Mukti Prasad Nyaupane, MyRepublica, 24 November 2016: the article reports that Binu Pulami married a boy from an upper caste family and had been facing torture, hurtful comments and violence since the family did not accept her on the ground of belonging to a lower caste. Her family filed a case at the police station against the boy’s family, claiming she was murdered.
·Case 4 - ‘Silence and shame in Ajit Mijar’s killing’, Mitra Pariyar, The Kathmandu Post, 8 January 2024: this is an opinion post by a Dalit rights activist, discussing the efforts made by lawyers and activists to deliver justice to Ajit Mijar, a Dalit boy who ‘was allegedly killed in July 2016 by the family of his girlfriend as their upper-caste pride could not tolerate their woman’s marriage to the son of a shoemaker.’
·Case 5 - ‘Murder case sparks a reckoning with Nepal’s caste discrimination’, Aashiyana Adhikari, The Diplomat, 10 June 2020: this is an opinion post by a research associate at the Centre for South Asian Studies, discussing the death of Nawaraj BK, a Dalit who whose bride-to-be Thakuri was from upper caste.
The applicants’ evidence in relation to their protection claims is discussed below where relevant.
Assessment of claims and findings
In assessing the applicants’ claims, I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility. If the Tribunal is unable to make a confident finding that an applicant’s account is credible, it must assess the claim on the basis that it is possible, although not certain, that the applicant’s account is true.[4] However, the Tribunal is not required to accept uncritically any or all of the claims made by an applicant. Further, the Tribunal does not need rebutting evidence before it can find that a particular factual assertion by an applicant is not made out.[5]
[4] MIEA v Guo (1997) 191 CLR 559; Rajasundaram v MIMA (1999) 51 ALD 682; MIMA v Rajalingam (1999) 93 FCR 220.
[5] Selvadurai v MIEA (1994) 34 ALD 347 at 348.
The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear, or that it is for the reason claimed, or that it is well-founded. It remains for the applicant to provide the relevant information in their case in as much detail as is necessary to enable the Tribunal to establish the relevant facts and be satisfied that all of the statutory elements for well-founded fear of persecution or complementary protection are made out.[6] It is the applicant’s responsibility to specify all particulars of their claim to be owed protection and to provide sufficient evidence to establish the claim, and the Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act.
[6] MIEA v Guo (1997) 191 CLR 559; Nagalingam v MILGEA (1992) 38 FCR 91; Prasad v MIEA (1985) 6 FCR 155.
I am mindful of the difficulties faced by protection visa applicants in giving their evidence at a Tribunal hearing, including memory recall issues due to passage of time, unfamiliarity with the Tribunal procedures, and nervousness and stress in an interview setting. These considerations have been taken into account in my conduct of the hearing and in carefully assessing the applicants’ claims and evidence. At the hearing, I asked the applicants straightforward open questions, followed by more specific questions to clarify matters and to elicit more detailed responses. The applicants mostly responded without hesitation, did not raise any interpretation or communication issues, and I did not observe any obvious difficulties throughout the hearing. I am satisfied that the applicants were afforded a real and meaningful opportunity to give evidence and present their arguments at the hearing.
The applicants’ oral evidence at the hearing was broadly consistent with their written statement of claims. I found Applicant 1 to be a credible witness who was sincere and gave an unembellished account of her experiences. In contrast, Applicant 2 often did not answer the questions directly and his evidence was vague yet I found aspects of it to be exaggerated. These concerns are discussed further below.
Applicants’ background
Applicant 1 claimed that she belongs to the Magar ‘caste’ and her family are all Buddhist. Although she practised Buddhism with her family in Nepal and identifies herself as Buddhist, she claimed that she personally believes in all the gods, honours all faiths and systems and she does not differentiate between her husband’s religion (Hinduism) and hers. The Buddhist community in her village is big and they did not have any problems practising their religion. Growing up in the village in Tanahun, she knew Applicant 2’s family as neighbours as their homes were across the road from each other. Applicant 2 belongs to the Brahmin caste and his family are Hindu. They ran a [store] and Applicant 1 used to buy things there. The applicants’ families had rare and normal interactions as neighbours. Applicant 1 does not have any issues with the caste system, but she claimed that her husband’s family do not accept widely and they discriminated.
Applicant 2 confirmed that his family belongs to the Brahmin caste and claimed that his family were very religious (Hindu) Brahmins. He corroborated the families’ normal interactions with each other in the Tanahun community prior to their marriage. He claimed that he had had a good relationship with Applicant 1’s family because he used to help them with their [business]. However, they totally changed when the applicants married. They were very unhappy and shocked because the applicants are from different caste and religion.
Applicants 1 and 2 did not initially tell their parents about their intention to marry because it was a love marriage without prior permission from the families. The applicants went to a Hindu temple in Chitwan and did the marriage ceremony themselves. They then came back to their home village and legally registered the marriage at the municipality office in [Month] 2010. The copy of their Nepalese marriage registration certificate from the Office of the Local Registrar, [Village] Development Committee, Tanahun District, provide that the applicants were married as per ‘social customs’ [nine days before Date 1, 2010] and the marriage was registered on [Date 1, 2010]. I accept this evidence regarding their marriage.
Magar is one of Nepal’s largest indigenous ethnic groups and the northern Magars are mostly Buddhists while those in the farther southern Nepal have come under strong Hindu influence.[7] As an ethnic group, Magars fall under the ‘Adjvasi/Janajati’ group, and in the 2001 Nepali census, Janajatis were placed in a separate category to the ‘caste’ groups.[8] While the castes are hierarchically structured in terms of ritual purity, with Brahmin being the highest in the hierarchy and Dalits or the untouchables being the lowest, the ethnic groups are more egalitarian in their social structure.[9] As Applicant 1 belongs to an ethnic group and identifies herself as a Buddhist, although not a strict adherent to any particular religion, it did not appear from the independent information that she belonged to a ‘caste’ in the strict Hindu hierarchical structure, or that Magars would be classified as a member of a lower or an untouchable caste. The applicants’ evidence regarding the normal neighbourly interactions between the families prior to their marriage also indicate that there were no outwardly caste-related or religious discrimination between them.
[7] Magar | Nepalese, Himalayan, Ethnic Group | Britannica; Panday, Tulsi Ram et al, Forms and Patterns of Social Discrimination in Nepal: A Report, UNESCO, Kathmandu Office, 2006.
[8] Bennett, L, Dahal, DR and Govindasamy, P, Caste, Ethnic and Regional Identity in Nepal: Further Analysis of the 2006 Nepal Demographic and Health Survey, 2008, Calverton, Maryland, USA: Macro International Inc., at p.3 (see Table 2.2).
[9] Pradhan, and Shrestha, A, Ethnic and Caste Diversity: Implications for Development, Working Paper Series No. 4, Nepal Resident Mission, Asian Development Bank, June 2005.
Although the applicants appeared to be claiming in the written material that their inter-caste marriage has the added dimension of being inter-religious,[10] the applicants’ oral evidence focused on caste discrimination and societal attitudes against inter-caste marriages. As country information[11] indicated many Nepalis consider themselves both Hindu and Buddhist, often sharing temples and rituals of worship, and Buddhists are generally not at risk of discrimination or violence in Nepal, which appeared consistent with Applicant 1’s evidence that she and her family did not have any issues practising Buddhism in their community, I asked Applicant 1 to expand on the inter-religious character of their marriage. Applicant 1 responded that it was not an issue about religions but more about the difference between Magar and Brahmin castes because the Brahmin caste does not allow marriage to any other castes.
[10] See the representative’s submissions dated 14 October 2016.
[11] DFAT Country Information Report – Nepal, 1 March 2019, at [3.26]-[3.27].
Having regard to the information before the Tribunal and the applicants’ claim that Applicant 2’s family are ‘very religious’ Hindu Brahmins who ‘do not accept widely’, I am prepared to accept that the applicants’ marriage may have been perceived as an inter-caste marriage. On the information before the Tribunal, I do not find that the inter-religious characterisation of their marriage increases their claimed risk of harm. I also do not accept on the information before the Tribunal that the applicant’s home [village] in Tanahun is a fundamentalist Hindu society.
Applicant 1 claimed that her family consisting of her father, mother and [brother] are still living at the same address in Tanahun. Her brother is married and he is looking after the family [business]. She sometimes speaks with her brother and mother, but she has not spoken with her father since she married. Her family in Nepal are aware of Applicant 3’s birth (born [date] in Sydney) and have seen her through videocalls.
Applicant 2 claimed that his parents and brother also still live at the same address in Tanahun. His [sister] married and moved to about 3km away. He claimed that he has not had any contact with his mother since around 2017 when he tried to tell his mother about the birth of his daughter. He claimed that she ‘went mad’ and did not want to hear about it.
In relation to their education and work history, Applicant 1 provided that she lived in Kathmandu with a friend for about 1 year when she was preparing for [subject 1] study and from 2007/2008 to 2010 she studied [subject 1] in Birgunj and lived in a hostel there. After completing her [subject 1] study, she [volunteered] for 1-2 months as [an occupation 3] at a [workplace 3] in Pokhara. Then she got married and did not get a chance to finish the [volunteering stint]. In Australia, she completed a Certificate III in [subjects 1 and 4] in around 2012/2013. Her written applicant provides that she worked as [an occupation 1] at [a workplace 1] from June 2012 to May 2015. She claimed at the hearing that she has not worked since May 2015 because she no longer has a work permit. She has been looking after Applicant 3 since then.
Applicant 2 provided that he completed his 4 year [subject 2] diploma in [a] university in 2004, followed by a 3 year [subject 5] course. His mother supported him and he never worked in Nepal. He lived in Kathmandu to study for IELTS and he came to Australia to study in 2007, completing [subject 3] courses. He is a qualified [occupation 2] and has worked in various [workplace 2s] in Sydney from June 2007 to June 2015. However, he has not worked since 2017 because he does not have work rights. He claimed that his family in Australia is currently financially supported by their savings and borrowing from friends.
I found Applicant 2’s evidence that he has not worked at all since 2017 despite claiming that financially supporting his family in Australia is a huge stress for him implausible and somewhat exaggerated. However, as the applicants’ background information in relation to their family, residential history, education and work has been broadly consistent and detailed across the written and oral evidence, I am prepared to accept the above summary of their background.
Claim in relation to inter-caste inter-religious marriage
The applicants’ evidence at the hearing was that their families had normal infrequent interactions without any animosity within their village as neighbours but this all changed when the applicants married. They claimed that both families were angry that they had not married the same caste and within their own religions. Applicant 2’s mother fainted upon hearing the news and the families advised the applicants to separate.
Applicant 2 claimed that in their culture and tradition, once a woman is married, she belongs to the husband’s family to look after the husband’s parents and cannot return to her family home. He thought his family might change and accept them in a few days so he took his wife home to live with them after the registration of their marriage. He also thought because his wife is calm and quiet, it would impress his parents. However, his family treated his wife like a slave, telling her not to cook and not to go to certain places in the house. They were so arrogant while his wife was quiet.
Given his claim of such poor treatment by his family within his own home, I asked him what he did to try and improve the situation for his wife. He claimed that he can’t fight with them and he kept his mouth shut. He also claimed that he can’t deal with the society. These general and vague responses indicated that he did nothing for his wife, despite claiming that he was worried for her. Further, his subsequent return to Australia [in] January 2011, leaving his wife in Nepal with his family who apparently treated her like a slave, appeared inconsistent with his evidence that he was worried for her. In this regard, Applicant 2 claimed that he tried to convince his father and talked to his mother all the time, but the Brahmin community will come and bring up the issue all the time. I found this response to be again very vague and inconsistent with his earlier evidence that he kept his mouth shut because he can’t fight with them and he can’t deal with the society.

He did not further expand on his claim that the Brahmin community ‘brought up the issue all the time’. He also made no mention of his evidence to the Department that the applicants’ visit to their home village in 2013 aroused fighting between the families which spread to involve 1,500-2,000 people in the community and that he heard his parents were considering moving after the incident. I consider that the applicants were given multiple opportunities to expand on their past experiences and to provide specific personal details about claims throughout the hearing. That this incident, which appears to be a large-scaled and serious community issue if it in fact occurred, was not mentioned by either applicant at the hearing casts a doubt on its credibility and I do not accept it.
Applicant 2 confirmed that his wife remained living with his family until she came to Australia to join him in July 2011. I asked if his family was so against Applicant 1, why they did not kick her out after he left for Australia. Applicant 2 did not answer the question and claimed that his wife said she will try her best till the end. He added that in their culture, it could not happen and ‘they kept pushing and pushing’. To clarify this vague response, I repeated the question and his answer was that he requested Applicant 1 to stay but ‘it became worse’. None of these answers addressed my concern that his family could have kicked her out. Despite the assertion that the Brahmin community was also involved, nothing in the evidence indicated that Applicant 1 was forced to leave Applicant 2’s home nor that she was threatened, discriminated or harmed by the Brahmin community in their village in anyway. I find that Applicant 2 by making these vague assertions sought to exaggerate the family and community reaction against his inter-caste marriage.
I found Applicant 1’s evidence in this regard to be franker and more reliable. She confirmed that she started living with Applicant 2’s family after the marriage. The family didn’t communicate with her and would only talk to their son. After Applicant 2 returned to Australia, leaving Applicant 1 alone with his family, Applicant 2’s family discriminated against her privately in the home, not allowing her to use the washroom or have meals together, giving her leftover food to eat and behaved as though they were superior to her. Her husband tried to convince his mother by saying that Applicant 1 is from the same community, they know her from childhood to be good and have nice reputation, but his mother would not admit to the marriage and kept saying it is not possible. She claimed that Applicant 2 asked Applicant 1 to try to convince his mother, be close and familiar with her, but his mother treated her like a slave and spoke to her using the derogatory ‘you’ in Nepali. Whenever Applicant 2 called home, the family would tell him in front of Applicant 1, to get married to another girl they prepared for him because Applicant 1 is not suitable and the ancestors will not be happy. Her in-laws did not physically harm her, threaten her or publicly treat her poorly, but their treatment at home for the 6 months she lived with them was mentally torturous for her. She used to be scared that something might happen to her during the nights because she had heard of so many daughters-in-law being killed, mostly in Chitwan district where there is a huge Brahmin community. She tolerated her in-laws’ treatment until her Australian visa was granted because she wanted to stay with Applicant 2. She had not sought any counselling for her mental suffering because her husband has been supportive which makes her happy.
She claimed that she could not go back to her home during this 6 month period because her family were also not happy and were trying to find another man for her. Although the families lived across the road in the village, Applicant 1 did not keep in touch with her family and they didn’t know how poorly she was being treated in Applicant 2’s home. The community saw their inter-caste marriage and gossiped ‘how long will she last in the marriage’.
Country information[12] indicates that there are no legal barriers to inter-caste marriage in Nepal and such marriages are not uncommon. The risk of family disapproval and associated violence depends on individual circumstances including economic, educational, social and political status. While traditionally discriminatory attitudes and social stigma persist particularly in rural areas, the DFAT assessment suggests such official and societal discrimination are mostly experienced by inter-caste couples involving Dalits. There are also reports[13] of a growing trend in inter-caste marriage in Nepal, especially in urban areas among educated people.
[12] DFAT Country Information Report – Nepal, 1 March 2019, at [3.54]-[3.55]; DFAT Country Information Report – Nepal, 21 April 2016, at [3.35]-[3.36].
[13] Ashish Poudyal, ‘Inter-caste marriage: when traditions blend’, The Kathmandu Post, 2 May 2018 < Anish Tiwari, ‘After years of rejection, things are changing for inter-caste couples in Sindhupalchok’, The Kathmandu Post, 9 June 2019, <>
I accept that Applicant 1 lived with Applicant 2’s family after her marriage in December 2010 and the family treated her poorly, including by ignoring and looking down on her, due to their disapproval of the inter-caste marriage. I accept that both applicants tried to convince Applicant 2’s family to accept Applicant 1 but they continued to disapprove and discriminated against Applicant 1 privately within their home, as they felt superior to her. I accept that the community gossiped about the applicants’ marriage but I am not satisfied on Applicant 2’s vague and general assertion that the Brahmin community brought up the issue all the time. I accept that Applicant 1 was not physically harmed by anyone including Applicant 2’s family members but being treated poorly like a lower caste by her in-laws was mentally torturous for Applicant 1. I also accept that Applicant 1 could not return to her own home because of the cultural tradition of living with the husband’s family and the fact that her own family was unhappy with the marriage. I accept that both families tried to pressure the applicants to separate and marry within their caste or ethnic community, but no one physically harmed or threatened the applicants to force them to separate while they were in Nepal. In this regard, I find the fact that Applicant 1 remained living with Applicant 2’s family for almost 6 months after Applicant 2’s departure without being kicked out, threatened or harmed, indicate that while Applicant 1 was subject to derogatory words and disrespectful treatment, she did not experience any violence or serious harm including a threat to life or liberty, significant physical harassment or ill-treatment from anyone while she was in Nepal.
I accept that Applicants 1 and 2 returned to Nepal in 2013 and upon visit to Applicant 2’s family in the hope that they would have changed their mind, they were turned away. I also accept that Applicant 2’s family continue to disapprove of their marriage, but I find that while the family appears to have cut contact, there is no information before the Tribunal to indicate that their disapproval has manifested in any violence against the applicants to date.
Both Applicant 1 and 2 confirmed at the hearing that there was no intention to separate or break up their family consisting of them and their child. Applicant 2 was especially firm in his evidence that he will stay with his wife and child. Given this direct evidence from the applicants, I found the representative’s pre-hearing submissions dated 30 July 2014 focussing on mistreatment and discrimination against single woman returning with a child, following a separation or divorce, and references to family violence against women in Nepal to be misguided. The representative did not provide any basis for their submission that the applicants will be forced to separate and that Applicant 1 will become vulnerable to exploitation and sexual harassment as a single woman, and in fact any prospect of separation was refuted by the applicants in their direct oral evidence at the hearing. The representative also appeared to have misconstrued the delegate’s decision by referring to an article[14] apparently ‘relied on by the delegate’, which is not mentioned at all in the decision record, and incorrectly suggesting that ‘the delegate accepted the applicant has real chance as there is no denial of this in the decision record.’[15] The earlier submissions dated 14 October 2016 to the Department also inaccurately stated that Applicant 1 is Hindu. The representative’s submissions were generally unhelpful in identifying the relevant evidence, information and issues for determination in the applicants’ case, and I give limited weight to the general unsupported claims contained therein and summarised above at [22].
[14] See paragraph 18 of the representative’s submissions referring to an article by Pratikshya Dahal ‘Battling the Differences: Women in Nepal’ The Missing Slate (12 December 2012).
[15] See paragraph 23 of the representative’s submissions.
The applicants consistently maintained that their families are not going to change and neither the Magar nor the Brahmin communities will accept them. However, other than generally claiming that they will be harmed and discriminated, they were unable to clearly articulate the harm or the discrimination they would experience on return from their families, the community or the society. For example, they could not explain how the families would force them to separate given that they are legally married in Nepal since 2010 and the families could not forcibly separate them then, they now have a child, and there are laws in Nepal protecting persons in inter-caste marriage and the societal attitudes toward it especially in urban areas appear to be improving. Applicant 1 conceded that the country has changed a lot but the community practices are the same and if there were no caste discrimination then the government would not be bringing up these new rules. In relation to the country information about the official and societal discrimination appearing to focus on inter-caste marriage involving Dalits, Applicant 1 maintained that in Brahmin, caste discrimination is not only for Dalits and they discriminate against any caste below them including hers.
Applicant 2 did not address the issue put to him and vaguely referred to not wanting to take any risks about even thinking of going back to Nepal and also claimed that the police will listen to the local community, interpret the law according to the people and they will not act. He had earlier claimed that his brother married around 5-6 years ago in an arranged marriage from a cousin’s introduction to a girl from Chhetri caste, a slight lower caste to Brahmin, and after 2-3 years of marriage, his brother divorced because his mother pressured him. The applicants claimed that this showed that even if they return after all these years, Applicant 2’s family will try to divorce them. When asked how he had heard about this given he claimed he had no idea about his family’s current circumstances and he had not had contact for years, he unconvincingly claimed that he heard from visitors from his village. Applicant 2’s tangential responses not directly answering the questions put to him, his evolving evidence regarding when he last had contact with his family (2017 or 2019/2020), and vague late introduction of claimed ‘threats’ from their village’s Magar and Brahmin communities when they returned after getting married, cast a serious doubt on the credibility of his evidence. While I am willing to accept that his brother may be divorced, I am not satisfied on the evidence that this necessarily means Applicant 2 will also be forced to divorce on return. What was clear from his various responses throughout the hearing was that the applicants were never physically harmed by anyone while in Nepal, his family never threatened his wife and that he would ‘never contact them’ (referring to his family).
Given that the applicants have not had any substantial meaningful contact with their families for some years and considering their education, qualifications and work experiences, as well as experience living abroad and being self-sufficient in a new culture, language and environment, I explored the possibility of the family relocating to another part of Nepal, particularly in an urban city such as Kathmandu or Pokhara where they have previously lived for brief periods. The applicants claimed that wherever they go they will be treated the same way by the society but did not detail any particular challenges to re-establishing their lives on return. Applicant 1 stated that despite the estranged family relationship, her husband’s parents will expect him to return to look after them. Applicant 2 claimed that his mother will find them and try to separate the couple and take ‘big issue about [his] daughter’. He did not explain the ‘issue’ about his daughter, then diverted to speak about an incident involving a lower caste boy in an inter-caste relationship being thrown off the bridge by the local community. The relevance of this unsubstantiated information was unclear but as Applicant 2 claimed that he could provide evidence of such incidents, he was allowed time to provide those post-hearing.
As noted above, the applicants submitted 5 ‘cases’, the contents of which are summarised at [25]. They did not explain the relevance of each case to their particular personal circumstances. Case 1 does not involve a caste-related violence and refers to a murder committed by a person suffering mental illness. Therefore I do not consider this article supports any claim of inter-caste violence. Cases 2, 4 and 5 discuss inter-caste relationships involving Dalits and is consistent with the country information that where Dalits are involved, violence and discrimination appear to be more prevalent and the Nepalese government is trying to address this issue. Case 3 does not specify the castes involved in the alleged murder. I have considered these ‘cases’ and I find that they generally support the country information that caste-based discrimination and violence in inter-caste marriages exist in Nepal, but it is more serious against Dalits.
Having regard to all of the above, I am not satisfied that the applicants have clearly articulated the harm or the discrimination that they may face on return to Nepal due to their inter-caste marriage. I find that apart from the harsh words and disrespectful treatment from Applicant 2’s family to Applicant 1 within their home and disapproval from both families, they did not experience any threat or harm from the family members or the society/community at large. The evidence before the Tribunal indicates that the applicants’ families or the community did not have any intention of subjecting Applicant 1 to serious and/or significant harm, because if they did, they had the opportunity to do so during her 6 months with them without her husband. In relation to discrimination, the applicants claimed that when they returned to Nepal in 2013 and sought to rent an accommodation in Pokhara, they were refused because of their appearances revealing their inter-caste relationship. While there is no independent evidence to support this general claim, the applicants also stated that they were able to stay in a hotel in Pokhara which suggests that it was not impossible for them to find accommodation despite some initial difficulties.
Based on this, I consider any difficulties they may face on return would be similar types of disapproval and negative attitudes. Having considered all of the applicants’ evidence in relation to this claim, I am not satisfied that there is a real chance the applicant will be subjected to any harm amounting to serious or significant harm including being killed by their families or the members of the community at large, if they return to Nepal now or in the reasonably foreseeable future.
I accept that Applicant 2’s family still disapproves of the relationship and although Applicant 1’s has some limited contact with her mother and brother, their relationship also remains somewhat strained because of their disapproval of the marriage. Given this, I do not accept that the applicants will return to their home [village] in Tanahun. I find that they can return to an urban city such as Kathmandu or Pokhara where they have some experience living in the past, there are likely to be more job opportunities, cultural and ethnic diversities and therefore a more accepting societal attitude toward inter-caste marriage. I do not accept the vague assertion that Applicant 2’s mother or any other family members will find them and pressure Applicant 2 to divorce his wife if they return to Nepal. In any event, based on Applicant 2’s own evidence, I find that he will not separate or divorce from his wife, and marry another women approved and arranged by his family. Also, given his own evidence that he will never contact his family, I do not accept that he will take the cultural responsibility of looking after his parents as Applicant 1 asserts. In this regard, the evidence indicates that Applicant 2’s brother is caring for the parents. I find on the evidence before the Tribunal that the applicants will not actively seek to resume their contact with Applicant 2’s family on return to Nepal. When I asked Applicant 2 whether he would still live with his parents on return to Nepal despite the claimed risk to the safety of his wife and child, he did not squarely answer the question and vaguely stated that they can’t even think about it. I repeated the question to him, and he claimed that responsibility for parents is different and in Hindu culture they must do this. I acknowledge that the culture may expect the first son to care for his parents, but in circumstances where Applicant 2 as the first son has not taken on this filial responsibility for more than 10 years and his younger brother is already taking on that role, and given Applicant 2’s clear and unequivocal evidence throughout the hearing that he has not had any contact with his family for a number of years and will not contact his family, I do not accept that he will contact his family on return to Nepal or assume his first-son responsibility by living and taking care of his parents at the expense of the well-being of his wife and daughter.
I acknowledge that the estranged relationship with their families and their disapproval of their marriage is upsetting and distressing, and the families’ unchanging attitude may continue to cause stress, angst and disappointment for the applicants. However, apart from the highly generalised claims to be depressed, mentally tortured and stressed, there is no information before the Tribunal to support any diagnosed mental health condition or to corroborate their vague claim to be suffering from these mental health concerns. Therefore, while I am sympathetic to the applicants’ circumstances and acknowledge that they may feel sad and stressed about their estranged relationship with their families in Nepal, I am not satisfied on the information before me that any such stress, angst and disappointment amounts to serious or significant harm.
In light of all of the above, I am not satisfied that there is a real chance or a real risk that the applicants will face serious or significant harm from their family members or the members of the wider community and Nepali society or anyone else for their inter-caste marriage.
I accept that after over a decade of living in Australia, the applicants may find adjusting to life in Nepal challenging and I also acknowledge their preference to raise their daughter in Australia. However, despite multiple opportunities to expand on their specific personal challenges in re-establishing their lives as a family in Nepal, the applicants failed to engage with the issue or the question directly. They vaguely repeated ‘anything could happen there’ and that they did not want to think about returning. They did not expand on the general claim that they will experience ‘extreme discrimination’ and harassment from the society nor provide any basis for their vague claim that they will not be able to find accommodation or job to survive in Nepal.

I accept that it may be difficult for the applicant to re-establish their lives in Nepal without extended family support there and given their lengthy absence from living in the country. I accept that it may be especially difficult for Applicant 3 to adjust to a life in Nepal given the language barrier and her being accustomed to a life in Australia. However, I am not satisfied on the evidence before the Tribunal that the applicants will face any serious or significant harm because of these difficulties. Applicants 1 and 2 are highly educated and qualified professionals. Although they claim to have some gap in their employment due to not being permitted to work in Australia, I consider that their education, qualification, skills and experiences cumulatively will enable them to find employment and accommodation in Kathmandu or Pokhara. On the totality of the information before the Tribunal, I am not satisfied that the applicants would suffer serious harm in Nepal, including significant economic hardship, denial or access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens their capacity to subsist. I am also not satisfied on the evidence before the Tribunal that any difficulties or hardship they may face in Nepal in re-establishing their lives would amount to the types of significant harm defined in s 36(2A) of the Act.
Conclusions
For the reasons and findings set out above, having considered all of the evidence before the Tribunal and the applicants’ claims individually and cumulatively, I am not satisfied that if the applicants returns to Nepal now or in the foreseeable future that they face a real chance of serious harm for their claimed reasons or any other reason set out in s 5J(1)(a) of the Act. Therefore, I find that the applicants do not have a well-founded fear of persecution in Nepal and are not refugees as defined in s 5H of the Act. The applicants do not satisfy the criterion in s 36(2)(a) of the Act.
As I have concluded that the applicants do not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). Having considered all of the applicants’ claims and evidence individually and cumulatively, and for the reasons and findings set out above, I am not satisfied that there is a real risk that the applicants will suffer arbitrary deprivation of life, torture, cruel or inhuman treatment of punishment, degrading treatment or punishment, or be subject to death penalty for their claimed reasons or any other reasons, if they return to Nepal now or in the reasonably foreseeable future. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Nepal, there is a real risk that they will suffer significant harm. The applicants are not persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
For the reasons given above, I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Hee-Jung Kim
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.
…

[2024] AATA 4185

1 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Jurisdiction