1930816 (Refugee)

[2021] AATA 3976

1930816 (Refugee) [2021] AATA 3976 (10 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1930816

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Genevieve Hamilton

DATE:10 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made 10 September 2021 at 1.37 pm

CATCHWORDS
REFUGEE – protection visa – Nepal – religion – Christian – fear of attacks by Hindu extremists – physical assault – fear of killing – opposition from family – state protection – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
SZBYR v MIAC [2007] HCA 26

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

BACKGROUND

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 10 July 2015. The delegate refused to grant the visa on 23 October 2019.  The review application was lodged on 30 October 2019.  The applicant attached the Department’s decision to his review application. 

   CRITERIA FOR A PROTECTION VISA

3. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

4. The criteria for a protection visa are relevantly set out in s.36 of the Act.  An applicant must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c).  Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on ‘complementary protection’ grounds, or be a member of the same family unit as such a person.

5. Generally speaking, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of their right to enter and reside (whether temporarily or permanently) in a safe third another country apart from Australia (s.36(3)).

   Refugee

6. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).  

7. 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.

8. The criterion in s.5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

9. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

10. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). 

11. A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s.5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s.5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion in s.36(2)(a), they may still be a person to whom the Minister is satisfied Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm: s.36(2)(aa).  S.36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. 

    CLAIMS AND EVIDENCE

14. In his protection visa application the applicant said he was born [on date] In Pokhara 1, Kaski, Nepal.  He is a Nepalese citizen, as are both his parents.  He has no right to enter or reside in any other country.  He speaks, reads and writes Nepali and English.  He is ethnically Nepali and is a Christian.  He is single.  He was living in [Town 1], Vic, and previously in [Village 1], Kathmandu.  He is in contact with parents in Kathmandu.  He as no family or personal contacts in Australia.  He came to Australia as a student [in] July 2009 having departed Kathmandu the day before.  That was his last arrival; he has not left Australia or returned to Nepal since then.  He travelled on his Nepalese passport issued [in] 2007, it expired [in] 2017.  His passport was issued in the normal manner.  His student visa was issued 13 July 2009, valid until 30 August 2011. 

15. The applicant said he lived in [Town 2] from July to December 2009, then came to [Town 1].  He was currently unemployed.  He does household chores in his accommodation and helps friends clean their houses.  He has never worked at all.  He studied at [a college] from July to December 2009 and then withdrew. 

16. The applicant said that 90% of the Nepalese population are Hindu.  He is a Christian and his family are Buddhists.  They hold a good position in the Buddhist monarchy.  His freedom to choose his religion was suppressed there.  He was watched and treated inhumanely by Hindu neighbors and society.  He left Nepal because he didn’t feel safe.  If he returns to Nepal he would have minimum opportunities and be isolated and excluded from society.  He would be mocked for his religion, which is regarded as that of foreign nations.  His life would be in jeopardy and he would suffer physical harm.  He was badly beaten by Hindu people while trying to defend his beliefs.  He received threats and warnings from people telling him not to preach or they might kill him.  He lodged a complaint to the police but they refused to launch his case, saying that could pose more of a threat to his safety.  He moved to Pokhara to his relatives’ home, but they wanted him to change his religion.  He is Mongolian Nepalese and his tribe is 100% Buddhist.  He argued with his relatives because they were forcing him to accept another religion.

17. If he returns to Nepal he will be targeted by Hindu gurus.  His relatives won’t help him. He will be watched and judged as if he is an alien and his life will be turned into a living hell.  The authorities won’t protect him because of the degree of fraud and corruption.  Instead they will drag him to the brutal, dark side of politics/humanity.  He cannot relocate because Hindu extremists have called for Nepal to be declared as a one-religion country.  People like him are the major target of such extremists. 

18. The applicant was interviewed by the Department in relation to his protection visa application on 9 October 2019.  The applicant said he became a Christian in Nepal, by reading the Bible, and through faith.  He confirmed he had no formal instruction.  He had never been baptised.  A Pastor knocked on his door while he was in [Town 2] and explained the scriptures to him more.  He became more interested in Christianity.  He had been to Church 3 or 4 times in Australia.  The applicant said he was known to be a Christian while he was a student in Nepal.  In November 2005 he was badly beaten up by a large group (nearly 35) of Hindu extremists in Kathmandu.  They were led by someone called [Mr A], who is politically connected, and continues to threaten him.  He was warned not to wander round as a Christian. 

19. At the interview it was discussed that the applicant had lodged a subclass 485 visa application in 2011, which was refused in May 2012.  The applicant said he paid an agent to lodge a visa application for him but he was not sure what type of visa it was and he did not receive the outcome; the agent kept telling him it was being processed but then the agent’s phone number was disconnected and he had no further contact.  He said he had never used the email address that the decision was notified to. 

20. In support of his review application the applicant provided a letter from a Doctor in [Village 1] dated 12 August 2021 stating that the applicant belongs to the Christian community and that he was assaulted while on a mission for Bible presentation in Lalitpur [in] July 2008.  He suffered head injuries with multiple lacerations and a fractured finger.  According to the patient he is being constantly threatened by a group of people for a long time. 

21. A hearing of the Tribunal was conducted on 16 August 2021.  The applicant had requested that two witnesses give evidence at the hearing.  However, the phone connection to Nepal was inadequate in contacting one of the witnesses (the Tribunal and the witness could not hear each other), so the Tribunal asked the applicant to have his witnesses submit their evidence in writing.  The Tribunal received an email from [a named neighbour] dated 16 August 2021, as follows:

    I am the neighbour of [the applicant] and I witnessed the brutal physical attack on [the applicant] that occurred on [a day in July 2008] in [Location 1] by a group of people who follow hindu religion strictly.

    The incident happened 20- 30 metres away from [the applicant’s] house while he was walking towards surrounding areas for Bible presentation. I saw the attackers using their fists, legs and metal rods. There were around 30- 40 people who attacked him. The moment was very scary and frightening. Blood spilled out of [his] head and the attackers were still kicking him and using rods while he was unconscious. There was no movement in his body. I thought he wouldn't survive. Later police came but took no action against the group leader [Mr A] and his group. [The applicant] was taken to the doctor immediately.

22. On 18 August the Tribunal received an email from [a named witness], as follows:.

    My date of birth is [date]. Currently, I work in [a location in] Kathmandu, Nepal.

    I'm the witness of [the applicant] who was severely attacked in [Location 1] by large number of conservative Hindu extremists in [the specified day in July 2008].

    [The applicant] was a Christian by religion with strong faith in Bible and Christian religion. While his stay in Nepal [the applicant] used to teach local and nearby areas people about Bible and Christian religion. That was the reason [the applicant] was physically and mentally abused time to time by conservative Hindu extremists in order to stop him from Bible presentation activity.

    But [on that day in] 2008 a Hindu extremist called [Mr A] and his large group of hindu people severely attacked [the applicant] near his house using their extreme physical force and weapons. [The applicant] was attacked by weapons such as khukuri and metal rods all over his body.

    He got unconscious by the attack. It seemed like the attackers were intending to kill him. He suffered serious head injuries and fractured finger.

    Police arrived but no action was taken against the attackers as police feared for the life of [the applicant]. He was rushed for treatment.

23. 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.

24. Historically, Nepal was populated by people from East Asia (who are sometimes referred to or refer to themselves as Mongolian Nepalese), traditionally Buddhist, and from South Asia, traditionally Hindu.  The DFAT Country Information Report dated 1 March 2019 contains the following information relevant to the applicant’s claims: 

    3.21 The 2015 Constitution states Nepal is a secular state, signalling a major departure from the Hindu monarchy. It guarantees freedom of religion. Religious tolerance is broadly practiced and there are no restrictions on the sale or distribution of religious material. Nepal celebrates public holidays for numerous religious faiths in addition to secular and political anniversaries. Nepal’s 2015 Constitution prohibits one person from converting another. Religious schools requesting government funding are required to register with local district administration offices and curricula for the schools is provided by the Department of Education. Hindu, Buddhist and Muslim communities report that they are able to establish religious schools, but Christian groups say that they are not supported by the government, at least in terms of funding, to do so.

    3.22  According to the 2011 Population Census, the most recent available, approximately 81 per cent of Nepalis are Hindu, nine per cent are Buddhist, four per cent are Muslim and 1.4 per cent are Christian. Syncretic faiths encompassing elements of Hinduism, Buddhism and traditional folk practices are widespread.

    …

    3.25 3.25 Overall, DFAT assesses that people of different religions generally live side-by-side without incident in a richly multi-ethnic and multi-religious society. Incidents of tensions between groups, and discrimination against them, has been reported, mostly in localised events. These are described in the relevant section below. …

    …

    Christians

    3.28 Christianity was introduced into Nepal in the 18th century, but Christian missions to Nepal were not common until the 1950s. The US Department of State estimated that 1.4 per cent of the population is Christian, the vast majority of whom are Protestant. Nepal has dozens of Christian missionary hospitals, welfare organisations, and schools and, in general, Christians report that they do not face government interference in operating these institutions. However, a number of Christian groups report that they keep their activities discreet. In particular, Christian groups that are not well-established can face difficulty registering as religious organisations and, as a result, can find it difficult to own land. Christians also complain that they have been unable to acquire land for cemeteries.

    3.29 Proselytising is banned in Nepal. Eight Christians were charged with this offence after giving out a pamphlet about Jesus Christ in a Christian school. Christian leaders reported that foreign missionaries involved in proselytising are generally not expelled from the country, but that nonetheless they attempt to keep their activities, and their ties to foreign Christian churches and charities, discreet.

    3.30 Small scale terrorist events have affected Christians in Nepal, including improvised explosive devices being detonated on the grounds of three churches in Jhapa district at the same time that protests against the new constitution were occurring in 2015. An arson attack on a Catholic cathedral occurred in 2017, causing significant damage to the building but not causing injuries to the priests living there. The attacks were claimed by Hindu nationalists.

    3.31 Conversion to Christianity has increased since the 1950s. More than 90 per cent of Nepal’s Christians are from marginalised groups such as indigenous communities (such as Chepangs and Santal) or Dalits, for whom Christianity provides an escape from the caste system. There are also anecdotal reports of occasional social tension because activities of (particularly foreign) missionaries to induce conversion through the provision of health, education, housing or employment opportunities to converts, which are perceived by some to be over-zealous.

    3.32 DFAT assesses that Hindu citizens who convert to Christianity are publicly and safely able to do so, although they may experience low-level societal or family discrimination which may vary according to their personal and family circumstances.

25. This information is consistent with what is reported in the US State Department’s 2020 Report on International Religious Freedom, which also states:

    Some leaders of religious minority groups stated that some converts to other religions, including Hindus who had converted to Christianity, remained willing and able to state publicly their new religious affiliation. Some Christian leaders, however, reported that some converts to Christianity tried to conceal their faith from their families and local communities, mainly in areas outside Kathmandu.

    FINDINGS AND REASONS

26. Based on the information in his application the Tribunal finds that the applicant is citizen of Nepal. 

27. The applicant claimed he feared harm in Nepal because of being a Christian.  At the hearing he said he used to like reading, he read about Christianity and started talking to friends and neighbours about the Bible.  He was targeted by Hindu extremists.  They followed him from place to place and tortured him mentally and physically.  The Tribunal asked the applicant why he was talking to people about Christianity.  The applicant said he thought people would be interested.  He said he sees the future as very dark.  He will not be able to run his life in a smooth way.  Every single day will be hard for him to live because his Christian views don’t accord with the those of the Nepalese people.  There are 200 Hindu festivals, he will be singled out as he always was.  As a Christian he would be regarded as a villain, will be socially isolated.  It is also because of the political strength of [Mr A].  His family and neighbours won’t like it either. 

28. At the hearing the following exchanges took place:

    The Tribunal asked the applicant when he became a Christian.  The applicant said he was not interested in religion as a child, not until about 14 or 15 years old.  He had read the Hindu Holy Book.  People (Nepalese and foreigners) used to distribute information about Christianity in the subway.  The applicant became interested in Christianity.

    The applicant at this point mentioned that he had a scriptural saying tattooed on his body: “[Scripture verse specified]”.  He said he got this in 2013 or 2014.

    Asked whether he read the Bible in Nepal, the applicant said he did, in Nepalese.  His parents were not happy.  Christians are a minority in Nepal. 

    Asked whether he had been baptised, the applicant said he was never baptised because he was young.  He still wants to get baptised.  Asked whether he went to Church in Nepal the applicant said there are no churches in Nepal. 

    Asked how he practiced his faith then, the applicant said he acquired his faith through reading. 

    The Tribunal asked the applicant what Christianity is.  The applicant said it was a very old religion based on the Old and New Testaments.  The Tribunal asked the applicant where Christianity gets its name.  The applicant was unable to answer this question.  The Tribunal asked the applicant what Christians believe in.  The applicant said they believe in the Sabbath day and the 10 commandments.  The Tribunal asked the applicant who Christians worship.  The applicant said some believe in the father, some believe in the Son, and some believe in the Holy Spirit.  The Tribunal asked the applicant which denomination of Christianity he identifies with.  The applicant had difficulty answering this question but then said he wouldn’t say he is a Roman Catholic because they worship Mary.

    The Tribunal asked the applicant if attends Church.  The applicant said he went a couple of times in Sydney, and also said he went every now and then to the Church in [Australian town]. 

    …

    The Tribunal put to the applicant that it may be difficult to accept that he is a Christian.  His knowledge was limited, he had never formally studied Christianity or been through a conversion process, nor had he been to Church much. 

    The applicant said he did go to a Church in Lalitpur but it did not satisfy him.  The Tribunal noted that the applicant had previously stated that there were no churches in Nepal.  The applicant said they were just ordinary buildings, not in the style of established Christian Churches.  The Tribunal put to the applicant that he had previously said that he did not go to any Church in Nepal.  The applicant said he only went a couple of times.  Christianity means Christ and the Trinity, that is his faith.  He has 3 Bibles, one is his Nepalese one, one is the King James version given to him by the preacher in [Town 2].  The applicant said he is a firm believer in Christianity, all the chapters and verses of the Bible, and prays every morning and night.  He believes firmly in Jesus Christ and the 10 commandments. 

    The Tribunal put to the applicant that the country information indicated that Christian converts may suffer some discrimination but were not at risk of serious harm.  His claimed experiences were inconsistent with the country information.  The applicant this is not the situation.  Attacks on Christians happen every day but they are not reported much.  The government suppresses information.  Christians are perceived as anti-government and anti-Nepalese society.  He went to the police but the police didn’t do anything. 

1. The Tribunal gave consideration to the applicant’s tattoo, as evidence of his claimed Christian faith, however having assessed the evidence as a whole, the Tribunal does not accept that the applicant is a Christian.  A person does not become a Christian convert simply by reading the Bible.  There is everywhere a process of education and formal initiation into the faith, followed by the practice of Christian fellowship through at least some Church attendance.   While people born into the faith identify as Christian because they believe in God but never or hardly go to Church, they have been baptised as infants or children.  That is not the applicant’s claim.  Although the applicant expressed general appreciation for Biblical chapters and verses, his knowledge of doctrinal matters and the organisation of Christianity and was really very limited, too limited to sustain the faith he claimed.  He did not understand the origin of the word Christianity as it relates to Jesus Christ, and had no real understanding of the different denominations of organised Christianity.  He also gave inconsistent information about the existence of Churches in Nepal and whether he had attended Church in Nepal. 

2. At the primary stage of the application the applicant said his parents were Buddhist and at the protection interview he said his relatives were a mix of Hindu and Buddhist.  However, at the hearing the following exchanges took place:

   The Tribunal asked the applicant about his parents’ religion.  The applicant said they tried to get baptised as Christian.  Were they previously Hindu or Buddhist?  Hindu, but maternal uncle is a Buddhist preacher and that side if the family is very strict about temple attendance.  The Hindu/Buddhist faiths are very similar. 

   …

   The Tribunal asked the applicant why his parents wanted to convert to Christianity.  The applicant said it was because they were educated.  The Tribunal noted that this appeared to be a new claim.  The applicant said he was not asked about it before.  His parents probably found the Bible more logical.  The Tribunal put to the applicant that he had previously claimed his parents were angry about his claimed involvement with Christianity.  The applicant said they were angry because they were afraid of the neighbours.  They don’t really want to discuss it on the phone with him, it is mutually understood that he will not change his mind.  Maybe you’re right they say.  The Tribunal observed that the applicant seemed to be speculating as to his parents’ interest in Christianity.  The applicant concurred with this.

3. This exchange indicated that the applicant was prepared to embellish his religious claims by claiming an intention on the part of his parents to convert to Christianity, and cast further doubt on his credibility in relation to his religion. 

4. As the Tribunal does not accept that the applicant is a Christian it is therefore not plausible, and the Tribunal does not accept, that he was out in the community proselytising Christianity as claimed, or that he was carrying a Bible.  The Tribunal therefore does not accept that the applicant was attacked by Hindu extremists as claimed.  Nor does it accept that the applicant was rejected by his family. 

5. The Tribunal specifically does not accept that the applicant was attacked by a large group of Hindu extremists as claimed.  Moreover there were internal difficulties in the evidence about the claimed attack.  The following exchanges took place at the hearing:

   The applicant said the person who targeted him ([Mr A]) was politically active and very strong and believed in a one-religion Nepal.  One day the applicant was out in the community ([Location 1]) with a Bible in his bag.  [Mr A] found it and gathered 40 people.  The applicant was hit by a metal rod, and kicked.  He still has an injury to his finger.  His mum was pushed over and fell. 

   The Tribunal asked whether anything else happened to him.  The applicant said that was the biggest event but event before that [Mr A] used to send his mates to slap and assault him. 
   The main attack happened on [a day in] July 2008.  The Tribunal put to the applicant that he had said at the interview that it happened in November 2005.  The applicant said it happened 5 to 6 times.  The Tribunal put to the applicant that in the interview he had only mentioned one such incident.  The applicant said the date of that incident was wrong.  It happened in July 2008

6. The applicant said in his protection visa interview that he was attacked in November 2005, and consistently with that, it was when he was [age] or [age] years old.  Notwithstanding that some years later there may some discrepancy in the exact date an event is recalled to have taken place, the applicant supplied a completely different year and month in his Department interview.  The date was not adverse to his claims, but the inconsistency was.  The difference in dates is sufficiently stark that the Tribunal does not accept that this attack occurred. 

7. The date of the incident given at the interview is not adverse information within the meaning of s 424A or 424AA, although whether that account would have led to a positive finding of protection obligations is another question.  As the High Court held in SZBYR v MIAC [2007], inconsistencies of themselves do not constitute adverse information.  

8. Moreover, the country information does not support that a person would be so viciously attacked in that manner for that reason. Nepal has a Communist Government and a secular Constitution. Hindu extremism does exist, including in what is said by the minority Hindu nationalist politicians, but does not include violence against the person.

9. The Tribunal gives no weight to the witness statements or the Doctor’s letter, these merely echo his own claims and have no independent verisimilitude.  They were also supplied very late in the review stage.  The Tribunal finds that the witnesses have concocted their evidence in order to support the application.  The applicant has some evidence of old injuries, but the Tribunal does not accept that he incurred them in the way claimed. 

10. In assessing the applicant’s claims the Tribunal gives weight to the fact that the applicant had been in Australia for nearly six years before making a protection visa application.  The period of time elapsing between an applicant’s arrival in Australia and the making of the application for refugee status is a legitimate matter to take into account when assessing the genuineness, or at least the depth, of the applicant’s fear of persecution.  This matter was discussed at the hearing as follows:

    He came here overtly to study and thought he could migrate that way.  He studied [subject] but then learned he could have chosen other things.  He studied in [Town 2] for 4 – 6 months.  He felt isolated and moved to Sydney. He attempted to continue his studies but it wasn’t the right course.  He was afraid to approach migration.  Someone called [name] lodged the further application for him.  He never received the outcome.  He confirmed he was unlawful for 3 years.  In July 2015 he became concerned about his status which is when he lodged a protection visa application

    …

    The Tribunal noted that the applicant delayed making a protection visa application for a very long time, which could raise a doubt as to whether he feared harm in Nepal.  The applicant said he did not know protection visas existed.  The Tribunal queried this, as the concept of refugee status was a matter of broad public knowledge in Australia.  The applicant said he lacked money, and did not know how to make an application or how much it would cost.  He was preoccupied with finding work.  The Tribunal put to the applicant that information about the procedure was readily available on the internet.  The applicant said he found such information confusing. 

11. The Tribunal does not consider this explanation persuasive.  Refugee status is a matter of common public knowledge in Australia and if the applicant had a fear of returning to Nepal it would have come to his mind to enquire whether that was a way of regularising his status.

12. The applicant bears a tattoo with a Christian message.  He may therefore be imputed as a Christian on return to Nepal.  He has also indicated that he is not interested in the devout practice of Hinduism and Buddhism unlike some of his family members.  The applicant therefore may endure some social and family disapproval, but this does not amount to serious harm.  The applicant claimed a future intention to be baptised, but on the basis of the overall want of credibility in his claims to be a Christian, the Tribunal is not satisfied that he has this intention.  The country information suggests that the risk of someone with the applicant’s profile being targeted by Hindu extremists is very remote. 

13. At the hearing the Tribunal asked the applicant whether he had any other reason for fearing harm in Nepal.  The applicant said he was supporting his child living in Nepal and he would not be able to do so if he went back due to the employment situation.  However, this does not constitute persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion and therefore does not fall within s 5J(1). 

14. Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for reasons of religion or any political opinion imputed to religion in Nepal.  He therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

15. The applicant made no claims that he would suffer significant harm, other than those to do with religion.  The difficulties he may face in being able to financially support his child do not reach the level of significant harm as defined in S.36(2A).  As the Tribunal has not accepted the religious basis of the applicant’s claim to fear harm in Nepal, the Tribunal is not satisfied there are substantial grounds to believe that as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is real risk that he will suffer significant harm within the complementary protection provisions.

    CONCLUSION

16. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa).

17. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.

18. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Genevieve Hamilton
    Member