1911369 (Refugee)

[2021] AATA 5455

1911369 (Refugee) [2021] AATA 5455 (23 December 2021)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1911369

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Jessica Henderson

DATE OF DECISION:  23 December 2021

DATE CORRIGENDUM

SIGNED:29 March 2022

PLACE OF DECISION:  Perth

AMENDMENT:  The following corrections are made to the decision:

The reference to Vietnam in footnote 1, on page four of the decision, is an error.  The country referred to by the Tribunal is Nepal.

The footnote should read “For the reasons set out below there is no need for the Tribunal to set out the many variations on “Maoist” groups in Nepal”.

Jessica Henderson
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1911369

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Jessica Henderson

DATE:23 December 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first and second named applicants satisfy s 36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first and second named applicants.

Statement made on 23 December 2021 at 4:48pm

CATCHWORDS

REFUGEE – Protection visa – Nepal – borrowed money from Maoist group to pursue studies – inability to repay – victim of fraudulent business transaction in Australia – pressure to join Maoist movement – inability to relocate to India – child in India in hiding – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 5LA, 36, 65, 499

CASES

MIMAC v SZRHU (2013) 215 FCR 35

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 April 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The applicants, who claim to be citizens of Nepal, applied for the visas on 6 July 2017. The delegate refused to grant the visas on the basis that the applicants ‘have a right to enter and reside in India and have not taken all possible steps to avail themselves of that right’. The delegate did not make any findings of fact about the applicants’ substantial claims because of the finding that s 36(3) of the Act applied.  The delegate expressly did not undertake an assessment of the applicants’ credibility for the same reason.

3.    The applicants appeared before the Tribunal on 13 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance by telephone of an interpreter in the Nepali and English languages.

4.    The applicants were represented in relation to the review.

BACKGROUND

5.    The primary applicant for the visa arrived in Australia [in] February 2012 on a student visa. His wife was a secondary applicant on that visa and is the second applicant in these proceedings.  She has raised her own claims for protection and provided her own evidence to the Tribunal in the form of her statutory declaration dated 2 August 2021.

6.    The primary visa applicant was subsequently granted a further student visa subclass 572 on 3 July 2013. That visa expired 15 March 2015. He then applied for and was granted another subsequent student visa that expired 9 December 2016.

7.    Prior to his last student visa expiring, [Company 1] sponsored the first applicant for a Subclass 457 – Temporary Work (Skilled) visa. He was nominated for the position of [deleted].

8.    [Company 1] withdrew sponsorship 18 October 2016, on the basis that the business was being sold to another owner.  

9.    The first applicant was subsequently nominated for the 457 visa by [Company 2], for whom the first and second applicant worked from [December] of 2016 until [January] 2017 when their employment was terminated.  On 22 February 2017 a decision was taken by the Department to reject the applicants’ nomination due to [Company 2] not being approved as a standard business sponsor. [The applicant] was refused the 457 visa on 24 March 2017 as a consequence.

1. In or around 2016 the first and second applicants claim to have entered into a loan agreement with Maoist loan sharks for an amount of around [amount]AUD.  The terms of the loan are said to have included interest at a rate of 24%.  Their claims for protection arise from their inability to pay back this sum of money.  It is submitted that the applicants did not lodge a protection visa application any earlier than July of 2017 because they were not at risk until it became clear they were likely to have to leave Australia at a time when they had been unable to pay the interest on the loan, and they were in default on the principle.

2. The third and fourth applicants are minor children that were born to the first and second applicants in Australia.

3. The applicants do not currently have Nepalese passports.  They claim that they were stolen when their car was broken into and have provided a report to the WA Police by way of corroboration of this claim.  The WA Police Report states that [in] June 2017:

Unknown offender(s) have used unknown object to smash the front left hand side window to vehicle …while parked in the apartment carpark at the end of cul de sac. Offender(s) have lent in and stolen a leather bag that was left on front seat. Leather bag contained a Laptop, mobile phone, passports and other documentation that victim had to take to Immigration today.

1. The WA Police Report reflects attendance on the scene to photographing the damage to the car.  Although the photos are not included, there is no indication that the reported damage was not consistent with that observed on attendance.  The Tribunal does not draw any adverse inference from the alleged theft.

2. The applicants’ passports were available to the Department and the delegate was satisfied of their identity.  The applicants appeared to the Tribunal at hearing to match the copies of their passports on the Department’s file.  The Tribunal is therefore satisfied of their identities and Nepalese nationalities.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether, on accepted evidence, the applicants are entitled to protection in Australia as refugees or alternatively on complementary protection grounds. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Act.

2. The claims pressed by the primary and secondary applicants at hearing were concisely and helpfully summarised by the representative in her submissions dated 27 August 2021.  The first and second applicants say that they are members of a particular social group comprised of Nepalese loan defaulters, and more specifically loan defaulters who have borrowed money from an extremist political group.  The primary and secondary applicants claim to have borrowed a considerable sum of money from Maoist loan sharks.  The purpose of the loans is said to have been the purchase of a business in Australia.  Due to an alleged fraud perpetrated on them they are unable to repay either the principle or the interest.  It is claimed that the first and second applicants have a real chance of serious harm from those to whom they owe this large sum, should they either return to Nepal or relocate to India. 

3. Alternatively, the first and second applicants claim that as a consequence of being loan defaulters they are refugees with a well-founded fear of persecution due to membership in a particular social group.  

4. The second applicant also claims to have a profile as a journalist in Nepal during the civil war and says that it contributes to her risk of harm should she return to Nepal.

5. A further possible claim was identified by the Tribunal during the evidence given by the first applicant during the proceedings.  The first applicant’s evidence was that he had been pressed by the Maoists to take an active role in their activities, and that he declined to do so because they are known to engage in violent and coercive conduct.  As a result, he and his family are at risk of retribution which might comprise serious harm for the reason of political opinion, or the particular social group comprising former members of the relevant Maoist group[1].

   [1] For the reasons set out below there is no need for the Tribunal to set out the many variations on “Maoist” groups in Vietnam.

6. It is also claimed that the primary applicant has a [health] condition, having suffered a [a medical incident] and had a [procedure]. He has been diagnosed with [health conditions] that he undergoes treatment for.[2]  There is no specific claim arising from those health conditions, but it is clear that they have some implication for determining what constitutes serious or significant harm for the first applicant.

   [2] See Item 15 of Applicants’ Documents and Evidence.

7. The primary applicant says that his mother borrowed against the family home in Nepal to raise the funds for his student visa. When he did not get the employment he anticipated, the family defaulted on those loans and the family home had to be sold. It is said that this resulted in the primary applicant becoming estranged from his family and he cannot rely on them now for any support or protection. The second applicant says that her family have largely cut off contact to her because she married a man of a lower caste, and she has indicated in her Statutory Declaration she does not believe she can rely on them for support or protection.

First applicant’s political history

1. The first applicant has set out the history of his political allegiances in some detail in his further statutory declaration dated 16 December 2021.  He says that he enrolled in [an educational institute] in August 2001 and started his studies just after the murder of the Royal Family.  The first applicant says that the Maoist leaders and commanders took the opportunity of the public response to the murders to press their cause.  He says:

When these Maoist leaders and commanders came into the village they said to the villagers and us students you need to participate with us. They said they would solve our problems with College administration.  They had meetings with students.  They advised we must open student union according to Maoist ideology in our college for our student rights. At that time, they are rebels so not registered. The Army was ruling country by order of the new King Gyanendra.  Many people getting very unhappy with this situation and Gyanendra did not have same support as our murdered King Birendra had.  All the students who lived in the village were participating in these meetings to organise student union and strikes.

The Maoists promised us students that after we finish our degrees, “we support you with a job”.  They were stating that we would all have better opportunity when Maoists rule the country.  They help with our current problems with the College.  For example, sometimes we cannot pay tuition fees in time and we get fined if late.  The Maoists support us to strike against these kinds of policies.  It is Maoists supporting us for our student rights and winning these.  But then they pressure us to recruit others and raise money also.

They made many promises and worked to organise successful student strikes. Of course, they do all this because they need new members and supporters.

There were a lot of Maoist activities at the college, not just lots of pamphlets, but also cultural and other activities and efforts to involve the villagers.  I had printer in my room and helped to print pamphlets. Part of their plan was to convince the villagers who are like peasants to support the Maoists.  We believed they would solve our problems. They did solve some of our problems.  Policies changed with things like late fees for tuition, which were a big problem for us, especially for me after my father died.

1. When the first applicant’s father died he says that he was concerned that he would not be able to continue his studies without a scholarship.  He was unable to get assistance from the Congress Party on the basis of academic merit, so he approached the Maoists.  Through them he says he met [Mr A], aka [name].  The first applicant says that [Mr A] called the College Chairman and Principal and arranged for the first applicant to get the necessary scholarship to continue his studies.

2. The first applicant goes on to say:

So right from the beginning I had this debt to the Maoists.  I owed them.  While I was a student I collected donations for them, I let them stay at my unit.  Even [Mr A] he stayed with me sometimes when he is coming into Kathmandu city. I let t hem use my computer and my photocopier. I felt I could never refuse them after the help getting for scholarship.

At that time the only violence we knew about by Maoists was against the government and government supporters.

1. After the first applicant completed his Bachelors [degree] he started working at [workplace] as [an occupation].  The site on which he was based was [distance] away from Kathmandu.  His evidence is that the Maoists did not want him to continue working in the role and contacted him regularly seeking his help.

2. The first applicant says that he decided to go to Australia on a student visa to further his career.  His evidence is that:

I visit [Mr A] in Kathmandu before I left Nepal as he asked.  He offered me “good position” with Maoists.  Lots of pressure.  I just advised I will be gone for 18 months.  I promise come back support you then.  I had to negotiate with him.  I was worried they threat me. I hear about people they kill just for leaving the Party.  So, my other fear is that they will harm me, even before they loan me the money.  I felt trapped by them.

1. The above history was raised by the first applicant in the context of the Tribunal asking him how he had come to borrow money from [Mr A], and how they had met.  The first applicant subsequently told the Tribunal that he had to negotiate investment terms with his Maoist contacts in order to stay in Australia safely.

2. The Tribunal has formed the view from the first applicant’s oral evidence at hearing that his driving motivation in coming to Australia (and then trying to remain in Australia on business visas) was his horror of returning to Nepal and being forced to work for the group of activists that he refers to as the Maoists.  The Tribunal notes in particular that the first applicant left his eldest [child] in Nepal because he could not afford the cost of bringing [this child] to Australia and he considered it worth the separation to avoid the Maoists.  He said, and the Tribunal accepts, that his [child] has subsequently gone into hiding due to credible death threats.

3. However, for the reasons set out below, it is not necessary for the Tribunal to consider a potential claim arising from his fear of retribution from former Maoist colleagues.

Loans

1. The first applicant stated in his Initial Statutory Declaration that he was a friend and associate of [name] aka [Mr A], in Kathmandu. He says they were well known to each other from their mutual connection to the Maoist movement in Nepal during the civil war when they were neighbours in the same apartment complex.

2. According to the first applicant, [name] is also known by his nom de guerre of [Mr A]. The Tribunal accepts that it was a common affectation of the Maoists to adopt a pseudonym during the civil war.[3] According to the first applicant, [Mr A] lived [near the applicant].

   [3] See for example, Nepali Times, Ghatana Ra Bichar, Nom de Guerre,  19 January 2007.

3. The applicants have stated [the second applicant] is the person who went back to Nepal to arrange the loan of money to be invested on behalf of the Maoist activists after her husband spoke with [Mr A] in late 2015 about the business proposition he was entering into with [Mr B] (discussed further below). The second applicant’s movement records indicate she was in Nepal from [November] –[January] 2016. She states it was during this visit that she met with the Maoist loan sharks and organised the loans. 

4. The nature of the money transferred appears to have been a loan, although the first applicant described it as an investment advance. 

5. The Tribunal enquired as to the source of the money that [Mr A] loaned to the applicants, and the first applicant indicated that he thought that [Mr A] had not had sufficient funds himself and therefore had arranged the loans through his family members.

1. The applicants have provided three loan documents, together with English translations.  They appear to fit the format of Nepali Tamsuks.[4] It appears that there are three documents because there are three different people holding the right to enforce the debt. 

2. Loan Document 1 indicates that the first applicant was loaned the sum of [amount] Nepalese rupees in cash [in] March 2016.  Loan Document 2 states that the second applicant was loaned an amount of [amount] rupees in cash, also [in] March 2016. Loan Document 3 states that the second applicant was loaned the amount of [amount] rupees [in] March 2016 by [a named person].

3. Together the loans amount to [amount] rupee which converts to around [amount] Australian dollars at today’s rates but was in the order of [amount] in early 2016. 

4. The loans were for a term of two years, putting the applicants in default in March of 2018.  The interest on the loans is an extortionate 24%, which the Tribunal finds to be the ‘investment’ on behalf of the Maoists referred to by the first applicant.

5. The applicants have provided very detailed evidence about the circumstances, terms and conditions of the loans, including the plausible evolution of their relationship with loan sharks. 

6. The Tribunal finds that the loan documents as translated are genuine records reflecting actual amounts of money that have been loaned to the applicants on the terms set out in the loan documents.  The Tribunal finds that the loans were made jointly to the first and second applicants, and that the second applicant travelled to Nepal in November 2015 for the purpose of finalising these loans.

Failure to repay the loans

1. The purpose for which the applicants’ borrowed substantial amounts of money is claimed to be an investment in a [second business], at which the first applicant was employed.

2. Included in the attachments Applicants’ Documents and Evidence is a copy of the initial “proposal’ from [Mr B] to [the applicant], dated [March] 2016. It is in the following terms:

Hi [applicant name]
Just a summary of our conversation and proposal so far
[applicant name] or his nominated company will purchase up to 25 units @ [amount] each from [Company 1] unit trust
[Company 1] unit trust owns both trading [businesses]
[Company 1] unit trust agrees to employ and 'sponsor [applicant name] in 457 sponsorship paying award rates under fair works
awards
Unless agreed by both [applicant name] & [Company 1] unit trust, [applicant name] will remain employed to [Company 1] unit trust for the full term of
his sponsorship
The units are available to be purchased on both parties final agreement of this proposal.
[Applicant name] agrees to start his employment on [date]/04/2016 with [Company 1] unit trust
Please consider the above, and advise me of your opinion.
Regards [Mr B]

Director of [Company 1] unit trust 

1. The subsequent “Agreement to Transfer Units’ (Item 5) dated [date] September 2016 is in the following terms:

THIS IS TO CONFIRM THAT MONIES DEPOSITED INTO THE
ACCOUNT OF [COMPANY 1] ON
[date]/03/2016 & [date]/03/2016 & [date]/04/2016 & [date]/04/2016 FOR THE SUM
OF [amount] . WAS TO PURCHASE 20 UNITS IN [COMPANY 1] UNIT
TRUST.

IT IS AGREED THESE UNITS BE HELD IN THE NAME OF [name of third party withheld]

1. The first applicant’s evidence is that he understood that he had purchased an actual share of the [second business] owned by [Mr B] of [Company 1].   The Tribunal found him a credible witness, and finds that the first applicant believed he had entered into a contract to transfer [amount] to [Company 1] in exchange for 20 ‘units’ of the [Company 1] Unit Trust, which he understood to be a share in the [second business].

2. The Tribunal has been provided with a bank statement of [Mr B], provided to the Department during the sponsorship application, showing corroborating deposits. 

3. The applicants claim that no actual property was transferred to the first applicant nor was his money refunded after [Mr B] sold said business to another person.  They have provided evidence that they have reported the fraud to the Federal police and commenced the process for attempting to recover funds through the Courts.  They have also provided a letter of demand sent to [Mr B] that was in substantially the same terms as the evidence before the Tribunal.

4. The Tribunal accepts the evidence of the applicants and finds that they transferred a total of [amount] to [Mr B] and received nothing in return.

5. The first and second applicants were subsequently employed by [Company 2] for the period December 2016 – January 2017.  At the time it was the applicants’ understanding that they would be employed ongoingly pursuant to the business visa scheme.  However, in January 2017 [Company 2] terminated the first and second applicants’ employment and in February 2017 [Company 2] withdrew its sponsorship application. 

6. The first and second applicants lodged civil actions against [Company 2] alleging they worked long hours without breaks and received no wages, claims that were upheld by the Federal Court. [In] October 2019 his Honour, Justice [name], accepted the accuracy of the first and second applicant’s aide memoire setting out the hours they were claiming they had worked without pay.[5]  It amounted to [an amount] in unpaid wages, an amount that [Company 2] was ordered to pay.

   [5] [Deleted]. 

7. The applicants claim that [Company 2] did not pay them that or any amount because it became insolvent.  That is consistent with the submissions that [Company 2] made to the Federal Court, which his Honour quoted, to the effect that as of [June] 2019 [Company 2] had ceased trading, had no assets and owed a secured creditor [amount].

8. It is correct to say, as the applicants’ agent does in her submissions, that the first and second applicant worked in conditions that in fact amount to modern slavery. Their inability to make interest payments on their loan, and the likely default on the principal, has come about because they have been grossly misused, and not through any fault on their part.

9. The Tribunal finds that as of early 2017 the first and second applicants had an outstanding debt of [amount] to “loan sharks”, by which the Tribunal means usurers lending money above the legal interest rate, which they had exhausted options to repay from work performed in Australia.

10. In the context of those events, the Tribunal accepts that the application for a subclass 866 Protection Visa on 6 July 2017 is consistent with the timeframe in which the first and second applicants must have realised that there was no possibility of repaying the debt, or any part of it, before they would be returning to Nepal.   

Particular social group

1. The first applicant claims to fear persecution from specific persons, rebel Maoist loan sharks and their supporters, whose selective intention to harm him is said to involve systematic and discriminatory conduct. Systematic in the sense of being non-random but rather deliberate, pre-medicated and intended.[6] Discriminatory in the sense of being due to one of the prescribed categories of discrimination. [7]

   [6] As per Refugee Law Guidelines, Chapter 4 Persecution, August 2020,  p 4-13.

   [7] Ibid.

2. The Tribunal finds that the first and second applicants are members of a particular social group comprising Nepalese who have borrowed money from Maoist rebels which they have failed to repay and been unable to service the interest.

3. Justice McHugh stated in Applicant S v MIMA that:

To qualify as a particular social group, it is enough that objectively there is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle.”[8]

[8] Applicant S v MIMA (2004) 217 CLR 387 at [69]

1. Persons indebted to loan sharks in Nepal that have defaulted on a loan and are unable to repay either the principal or interest share such an identifiable common characteristic.

Well-founded fear of persecution

1. The Tribunal accepts the applicants’ submission that the comments made by the first applicant on the application form “reveal a man in a state of extreme distress, confusion, near panic”.

2. The Tribunal has no doubt that the first applicant is genuinely holds the subjective belief that if he attempts to return to either Nepal or India the Maoist loan sharks will spare no efforts to track him down and harm him or his family.  He gave evidence of his knowledge of the reach of the Maoists, both within Nepal and extending out into India and other countries where Nepalis reside.  He said that his [child] in India had gone into hiding in order to avoid the Maoists to whom he owes money, because of credible kidnap threats.

3. The first applicant was a calm and credible witness, whose fear was well-articulated and persuasive.  The Tribunal finds that s 5J(1)(a) is satisfied.

4. Each of the first and second applicants gave eye witness testimony of the violence, kidnapping and extortion that the Maoists will go to in order to obtain funding and political supporters.  The first applicant says that his siblings in Nepal have all received death threats because of his debt, and he thinks this is why his mother is experiencing [a medical condition].  He says that his brother has not spoken to him since he indicated that he had defaulted on the loan.  However the first applicant is aware that his brother has reported death threats to the local police because of the defaulted loan, and that the police have done nothing.  His sisters have also been threatened.

5. The Tribunal found the first applicant’s evidence credible and genuine.  His fear is genuine and deep, and his account of the death threats that his family has experienced was detailed and plausible.

6. The applicants submit that members of the Maoist rebel forces work in concert with each other to recover debts held by any of their members, given funds derived from these loans are potentially used to assist the rebel cause. Thus, it is not simply the specific Maoists that the first applicant has borrowed money from that would have an interest in the loans, and by extension, in him and his family. Rather, it is submitted that multiple actors in the renewed rebel Maoist campaign would have a shared interest and motivation in securing these funds or in harming this family to make an example of them to discourage loan defaulting by others. 

7. The first applicant also says that, arising from [Mr A] and his family being supporters of a new fundamentalist Maoist insurrection in Nepal, they are particularly highly motivated for political as well as personal reasons to recoup the considerable sum of money owed.

8. On the basis of his eye-witness experiences, the first applicant fears his life and that of his family is at risk. He fears he or his wife, or even one of his children, could be kidnapped in an effort to extort the money he owes from him. He fears he, his wife, or his children could be beaten or tortured by those he owes money to.             

9. The DFAT Country Information Report – Nepal, dated 1 March 2019, provides the following information:

   a.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.

   b.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.

   c.Usury is illegal, and the maximum interest rate that can be charged is ten per cent, except by licenced banks and financial institutions, who may charge more. 

   d.The extent of loan shark activity outside of the formal banking sector is difficult to assess.  No official statistics on the prevalence of this crime are available.  It is understood to occur from time to time.

10. Under the heading ‘Fear of Maoists’ the DFAT Country Information Report states:

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.

…

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.

…

There are widespread reports of threats against businesses throughout Nepal. Threats such as coercion, extortion and forced donations, as well as kidnappings or coercion to join political parties, have been identified as the most common forms of mistreatment. However, credible sources told DFAT that the most common occurrence, forced donation, was generally seen as part of 'doing business' in Nepal and was regularly encountered. The practice reflects the intensely political nature of Nepali society and the inability of Nepali political parties to formally and directly raise funds to support their activities.

1. The Tribunal finds that the Country Information is not inconsistent with the first and second applicant’s eye-witness accounts of threats and violence by the Maoists who have loaned them money. 

2. In the absence of any contradictory evidence, the Tribunal accepts the evidence of the first applicant, who the Tribunal has found is an honest, forthright and reliable historian.

3. The Tribunal finds that:

   a.The first and second applicant have loaned money from ‘sharks’ pursuant to unlawful interest rates;

   b.There is a real chance that the ‘sharks’ are Maoists who are well-connected and known to use threats, coercion, extortion and force to elicit money to raise funds;

   c.The sum of money owed is large enough to warrant significant steps to recover it;

   d.There is a real chance of systemic and discriminatory conduct comprising threats, physical violence and kidnapping if the first and/or second applicants return to Nepal; and

   e.There is a real chance that the Maoist loan sharks are sufficiently well connected to intercept the applicants during a transit through Nepal and/or track down the applicants in India.

State protection

1. In the AAT Guide to Refugee law Australia, the advice to decision makers states that “it should be accepted that the Convention definition extends to persons who fear persecution by non-State agents where the state is not complicit in the persecution but an appropriate level of state protection is lacking, including situations where effective state authorities do not exist.”[9]

   [9] The Refugee Review Tribunal, Guide to Refugee Law Australia, ch 8-State Protection, p17. 

2. The AAT’s Refugee Law Guidelines further note the responsibility of the state to provide protection from persecution and the connection between the infliction of serious harm and the failure of state protection. [10] The following citation from Justice Brennan in Applicant A v MIEA is pertinent: 

A person ordinarily looks to “the country of his nationality” for protection of his fundamental rights and freedoms but, if “a well-founded fear of being persecuted” makes a person “unwilling to avail himself of the protection of [the country of his nationality]”, that fear must be a fear of persecution by the country of the putative refugee’s nationality or persecution which that country is unable or unwilling to prevent.[11]

[10] AAT Refugee Law Guidelines, Chapter 8 State Protection pages 5-7.  

[11] Applicant A v MIEA (1997) 190 CLR 225 at 233

1. Section 5LA of the Migration Act 1958 provides that effective protection measures exist in the receiving country when the relevant state or international organisation is willing and able to offer such protection 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.

2. It is submitted that Nepalese authorities cannot and do not offer the requisite level of protection necessary to reduce the real chance of harm to below the threshold of real chance and that neither an effective police force nor an impartial judicial system exist.  The first applicant says that security situation and on-going presence of significant number of rebel Maoists engaged in fighting and destabilising the government renders state protection efforts fragile and genuine safety and protection illusory.

3. DFAT’s 2019 Country Information Report on Nepal states that police effectiveness is limited by a lack of resources, corruption, nepotism and a culture of impunity.  Many Nepalis ‘have only limited access to justice’ in the Courts.

4. Human Rights Watch notes that the government “have failed to develop a coherent and sustainable plan to ensure that abuses committed by Maoist fighters and by security forces are properly prosecuted. Instead, the authorities have consistently ignored court orders for investigations, prosecutions, and convictions for conflict-era violations. None of the parties to the conflict—whether political parties including the Maoists, or security forces including the military—respond properly to police complaints or court orders…Nepali authorities have not only prevented police investigations and ignored court orders, they have, in the few cases where a prosecution proceeded, actively attempted to protect perpetrators.”[12]

   [12] Human Rights Watch, No law, no justice, no state for victims, culture of impunity in post conflict Nepal, 20 November 2020, p 35-36.

5. The Tribunal finds that an appropriate level of state protection is lacking.

   
   
   

Right to enter and reside in India

1. As the applicants are Nepalese, they may have a right to enter and reside in India and s 36(3) of the Act was applied in the Protection Visa Decision and refusal of the 866.  

2. Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:

   Protection obligations

   (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

   (4) However, subsection (3) does not apply in relation to a country in respect of which:

   (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

   (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

   (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that

   (a) the country will return the non-citizen to another country; and

   (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

   (5A) Also, subsection (3) does not apply in relation to a country if:

   (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

   (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

1. This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply.

2. The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35 has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

3. In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s 36(3) does not apply because of the operation of s 36(4), (5) or (5A).

4. Notably, the applicants do not currently have Nepalese Passports, which is a requirement for them to enter India from Australia. The Tribunal accepts that their passports were stolen; the first applicant is a credible witness, and his account is consistent with his action in reporting the incident to the police.[13]

   [13] See item 12 in Applicants’ Documents and Evidence.

5. The Tribunal accepts that seeking new passports from the Nepalese government would put the applicants at risk, because it would unequivocally identify their current place of residence to the Nepalese authorities.[14] The Tribunal finds that the applicants are unable to travel directly to India and would need to transit through Nepal.     

   [14] As per the definition of Refugee found in s 5H(1)(a) of Migration Act 1958.

6. The Tribunal finds that there is a real chance that the first and second applicant will experience persecution in India because of their membership of a social group comprised of people who have borrowed money from the Maoists and are unable to repay it.

7. The conditions prescribed in s 36(4)(a) are satisfied. The Tribunal finds that s 36(3) does not apply to the applicants with respect to India.

8. For the reasons given above the Tribunal is satisfied that each of the first and second applicants is a person in respect of whom Australia has protection obligations.

The third and fourth applicants

1. Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include dependent children.

2. The Tribunal finds that the third and fourth applicants are dependent children of the first and second applicants.

DECISION

1. The Tribunal remits the matter for reconsideration with the directions:

   a.that the first and second named applicants satisfy s 36(2)(a) of the Migration Act; and

   b.that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first and second named applicants.

Jessica Henderson
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…