1932468 (Refugee)

[2021] AATA 4382

1932468 (Refugee) [2021] AATA 4382 (27 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1932468

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Amanda Paxton

DATE:27 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 27 October 2021 at 10:14am

CATCHWORDS

REFUGEE – Protection visa – Nepal – fear of Maoists – no political involvement – overall security situation throughout Nepal has dramatically improved – long period of unlawfulness – economic hardship – earthquake victims – applicant does not face a real chance of serious harm– delay in lodging the visa application – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).

2. The applicant [claims] to be a citizen of Nepal, applied for the visa on 1 June 2015. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).

3. On 14 November 2019, the applicant validly applied for review of the delegate’s decision to the Tribunal, attaching a copy of the delegate’s notification and decision record to the application.

4. The applicant appeared before the Tribunal on 21 October 2021 to give evidence and present arguments in relation to his application on MS Teams video, as the hearing was held when COVID-19 pandemic restrictions were in place. The video was clear throughout the hearing and the applicant’s answers were responsive and appropriate to the Tribunal’s questions. The Tribunal was satisfied that the applicant was able to give evidence and present arguments to the Tribunal throughout the hearing.

5. The applicant was not represented at the hearing.

   CRITERIA FOR A PROTECTION VISA

6. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

7. 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.

8. 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).

9. 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.

10. 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

11. 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.

    CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant [is] a refugee as defined by s 5H of the Act, and if [the applicant] is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality

13. The applicant claims to be a national of Nepal. He has provided the Department with a copy of the bio-data page of his Nepali passport.[1] The applicant’s passport indicates it was issued [in] 2015 and will expire [in] 2025. The passport shows the applicant’s date of birth as [date]. This and the applicant’s oral evidence supports this claim. On the available evidence, and in the absence of any contrary information, the Tribunal finds that he is a national of Nepal. This is therefore the country of reference for the purpose of assessing his refugee claims, and the receiving country when assessing his eligibility for complementary protection.

    [1] [File number], Doc Id [deleted].

    Background

14. In his application to the Department, the applicant declared that he was born on [date][2] in [Village 1], Baglung, Nepal and is a citizen of Nepal by birth.[3] He speaks, reads and writes in English, and his religion is Hindu.

    [2] [File number], Application for a Protection visa – Form 866B, Doc Id [deleted].

    [3][File number], Application for a Protection visa – Form 866B, Doc Id [deleted].

15. According to the applicant’s Form 866C[4] Application for a Protection visa the applicant arrived in Melbourne, Australia on [date] October 2007 as the holder of a Student [visa] after departing from Kathmandu, Nepal.

    [4] [File number], Form 866C, Doc Id [deleted].

16. The applicant applied for his Protection visa on 1 June 2015, and was refused the visa on 18 October 2019 on the basis that as a Nepali citizen, the applicant has the right to enter and reside in India and has not taken all possible steps to avail himself of that right. In the Department’s decision record provided to the Tribunal by the applicant,[5] the delegate found that the applicant has statutory effective protection in a third country as set out in s 36(3) of the Act.

    [5] [File number], Doc Id 6589849.

17. The applicant lodged an application for review of the refusal decision made by the Department on 14 November 2019. This application is the matter currently before the Tribunal and the subject of this decision.

    Written claims for protection

18. The applicant’s written claims for protection are first put forward in Form 866C[6] on the Department file, and are summarised below:

    ·The applicant claims to be a citizen of Nepal.

    ·He came to Australia seeking a better life.

    ·Nepal was experiencing insurgency and he was in trouble.

    ·He was thinking about returning to Nepal, however there was an earthquake that caused widespread destruction, and he lost everything.

    ·He has been under significant stress because there is nothing for him to go back to in Nepal after the earthquake.

    ·The authorities in Nepal are ‘weak’ and unable to provide support to victims of the earthquake.

    [6] [File number], Doc Id 6589853.

19. The applicant attended an interview at the Department of Home Affairs on 15 October 2019 to discuss his written claims.[7] According to the Department’s decision record provided to the Tribunal by the applicant,[8] the interview was conducted in the English language without the assistance of an interpreter. The applicant was asked questions about his family, places of residence, past travels and the harm he fears if he were to return to Nepal.

    [7] [File number], Doc Id 6589835.

    [8] [File number], Doc Id 6589849.

    Relevant country information

20. In the following assessment, the Tribunal has taken into account country information provided by the DFAT Country Information Report for Nepal, dated 1 March 2019, and put to the applicant, which reports the following:[9]

    [9] DFAT Country Information Report Nepal, 1 March 2019

    Recent History

    …

    2.3 In 1996 the Unified Communist Party of Nepal (Maoist) (UCPN-M) began a nationwide violent insurgency against the government leading to a ten-year civil war. Almost 18,000 people were killed and over 1,300 disappeared before a peace accord was struck in 2006 following an agreement between the Maoists and an alliance of seven Nepali political parties.

    2.7 On 25 April 2015 a 7.9 magnitude earthquake struck Nepal. The earthquake and its subsequent aftershocks killed an estimated 8,891 people and injured tens of thousands of people. Significant damage was incurred to national infrastructure, buildings and homes and reconstruction efforts continue several years after the disaster.

    …

    2.9 Several changes of government, including realignment of coalitions, resulted in two further changes of Prime Minister before national elections were held over two phases in November and December 2017. These saw landslide results in favour of the Left Alliance comprised of the CPN-UML and the CPN-Maoist Centre parties. The two parties merged in early 2018 to form the Nepal Communist Party (NCP), which now holds a close to two-thirds majority in the Federal Parliament, led by Prime Minister KP Oli for his second term. The coming years will see Nepal’s complex transition to a new federalist system.

    …

    SECURITY SITUATION

    2.41 The overall security situation throughout Nepal has dramatically improved since the end of the conflict. However, poverty, unemployment, weak rule of law and a culture of impunity are causes of insecurity in Nepal. Recent elections including in November 2017 were affected by violence including political candidates being shot at, improvised explosive devices and landmines being planted and violent protests. Political protests and demonstrations occur regularly and can turn violent without warning. Political parties have been known to enforce strikes (bandhs see Private Sector/Business Community), which can close down transport and business operations for extended periods, although these have occurred less frequently in recent years.

    Political Opinion (Actual or imputed)

    3.38 All Nepali citizens 18 years and older are eligible to vote. Under the 2015 Constitution seats in the Federal Parliament are reserved for women through quotas, and substantial, proportional allocations made for Madhesis, Dalits, and other minority groups.

    3.39 Political affiliation, both at an organisational and individual level, is an important aspect of identity. This was a cause of instability during the conflict and in the years immediately following. Political youth wings, bandhs (strikes, see Private Sector/Business Community), demands for donations from local authorities and the private sector, and the obstruction of tender-bidding processes in line with political interests all contributed to this instability.

    3.40 A diverse and competitive array of political parties operates in Nepal, though the system has faced considerable instability in recent years. Unlike the 1990 constitution, the 2015 Constitution has no limitation on parties formed along ethnic lines leading to many ethnic groups to participate formally in political processes, motivated by a belief that they have been excluded from a society that has historically been ruled by dominant ethnic and caste groups.

    3.41 Nepal has enjoyed several years of political stability. A lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. DFAT assesses the risk of a return to widespread violence is low.

    Fear of Maoists

    3.42 Communist parties won the 2017 elections in both the parliament and the provincial assembly. The main far left parties, Communist Party Nepal (Unified Marxist-Leninist) CPN-UML and Communist Party Nepal (Maoist Center) merged in 2018. Before political groups were allowed to politically organise in 2015, Maoists recruited from among ethnic minorities who participated in their insurgency.

    3.43 Tens of thousands of people displaced by the long period of conflict in Nepal (see Recent History) remain displaced. As part of the peace process, Maoists and the government agreed on a programme to allow displaced people to return to their homes. The land once belonging to many displaced people had since become occupied illegally or been given away or sold by the Maoists during the civil war. Some displaced people lack documentation, preventing them from reclaiming their property.

    3.44 While the two main Maoist parties have merged, the movement has a history of internal splits and the ideology of the two main groups, while merged, is inconsistent. Historical claims of abuses during the insurgency remain unresolved.

    3.45 Maoists have the potential to control the national agenda without resorting to violence. In general, DFAT assesses that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants.

    CONSIDERATION OF CLAIMS AND FINDINGS

21. Having regard to the general consistency of the applicant’s oral evidence and evidence provided across his Protection visa application, the Tribunal accepts the applicant was born in a small village in the west of Nepal, [Village 1], Baglung, Nepal. The Tribunal accepts the applicant’s evidence that his parents, now in their late [age], continue to live in the village in accommodation provided by the government after the earthquake of 2015. The Tribunal accepts the applicant has three [siblings], one who farms the family’s small piece of land in the village, another who lives in Kathmandu and another who is [overseas]. The applicant said he is in touch with his family, and a few friends in Nepal, from time to time.

22. The Tribunal considered the applicant to be generally open, straightforward and credible at hearing. On this basis, the Tribunal accepts that until he was [age], the applicant lived with his family in the hilly, relatively remote rural area of Baglung, after which time he lived in a hostel and attended school in Kathmandu. He continued at school in Kathmandu until he completed his [grade] at high school.

23. On the same basis, the Tribunal accepts the applicant’s evidence that he has had no political involvement in Nepal or in Australia.

24. On the basis of his consistent evidence across his Protection visa application and oral evidence, the Tribunal accepts the applicant came directly to Australia after school on a student visa with the intention of studying, [but] he was required to complete an English qualification on arrival and although he believed he had passed, the school did not accept his level of English for entry into the course and he was required to do more English study. At the completion of this study, he sought to commence his [qualification], but he was still not accepted, and after that he did not have enough money to study further. The school in which he was enrolled to study then closed and although he tried other schools, he was not successful, and his visa was cancelled in 2009.

    Fear of Maoists

25. In his Form 866C, the applicant states that he left Nepal because it was experiencing insurgency and he was in trouble. At hearing, the applicant explained that his parents sent him to school in Kathmandu because they were worried about Maoist insurgents who were recruiting, sometimes forcibly, boys from rural areas in Nepal to support their struggle, often requiring families to send one son to join them to support their fight. Taking into account independent country information above discussed with the applicant at hearing that in 1996 the Unified Communist Party of Nepal (Maoist) (UCPN-M) began a nationwide violent struggle against the government leading to a ten-year civil war where thousands were killed or disappeared until peace was negotiated in 2006, the Tribunal accepts that abuses at the hands of Maoists occurred, especially in rural areas, the main theatre of the insurgency. The Tribunal accepts the applicant’s family sent him to Kathmandu from a young age to be educated in the city where he was protected from the Maoist threat in the village. The Tribunal accepts that when the applicant came to Australia in 2007, the political landscape of Nepal was still unstable and that the applicant’s family’s fear of Maoists may have persisted.

26. However, as raised by the Tribunal at hearing, DFAT country information above indicates that the political landscape in Nepal has changed considerably since the applicant’s departure in 2007. As discussed at hearing, the overall security situation throughout Nepal has dramatically improved since the end of the conflict, the civil war is over, political parties can now openly organise and do so, and there are democratic elections in which a number of political parties participate, including the Maoists. Maoists have the potential to control the national agenda without resorting to violence, and in general, DFAT assesses that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants.[10] The Tribunal has also taken account of country information above discussed with the applicant indicating that the current political environment provides an environment where political views and involvement are generally respected.[11]

    [10] DFAT Country Information Report Nepal, 1 March 2019, 3.45.

    [11] DFAT Country Information Report Nepal, 1 March 2019, 3.41.

27. In response to the DFAT assessment, the applicant stated that it may look safe on the outside but on the inside, it is not like this. He believes that what the Maoists show the world is not what happens inside Nepal. He stated that in Kathmandu it is safe and he would be safe there and on the evidence of the applicant and the independent information before it, the Tribunal is satisfied that the applicant does not face risk of harm from Maoists, or anyone else, in Kathmandu. The applicant claimed however that in the village, Maoists would look for him, not for any reason but because they want to recruit family members. Expanding on this view, the applicant indicated there is a range of Maoist groups in Nepal and there are still some Maoist groups who are separate from those who operate within the political sphere. He stated that while some groups are involved in Nepali politics, others continue to fight in the countryside and threaten and intimidate for money and support. but that he is a village guy not a city guy and he would return to the village where he would still be at risk of being taken by Maoists. He claimed his brother who works their small piece of land in the countryside says that, although he has not had direct contact with Maoists, they are still present, and it is still not safe to return.

1. The applicant had no specific information about the groups he claimed continue to operate in his village but referred to them in general terms as Maoist. The Tribunal acknowledges the term ‘Maoist’ encompasses many groups in Nepal. As discussed with the applicant, the Tribunal also acknowledges DFAT advice that politically motivated violence can erupt especially around election periods. At hearing the Tribunal also raised country information before it that indicates the Maoist splinter group, the Communist Party of Nepal Maoist (CPN (M)) led by Netra Bikram Chand, also known as the ‘Biplav Group’, has been conducting a low-intensity campaign including violence over recent years.[12] The Tribunal put to the applicant that the information before it indicates that the target of Biplav Group violence is infrastructure or people with a political or leadership profile. As discussed at hearing, the information before the Tribunal also indicates that the government was controlling the violence of the Biplav Group,[13] and has responded to the violence by outlawing this group, taking police action to arrest members, and conducting talks and negotiation.[14] As a result, the Biplav Group had publicly renounced violence and been drawn into the mainstream political scene.[15] In response, the applicant stated that while this group may speak of peace deals, in the countryside there has been no change, and no army or police can protect people from this.

   [12] Ibid.

   [13] Chand party’s killing of school principal is a grim reminder of the Maoist conflict (kathmandupost.com)

   [14] Ibid.

   [15] Nepal, Asia | Country Profile | Crisis24 (garda.com)

2. The Tribunal has considered the applicant’s claims and comments but gives weight to the independent country information indicating that while violence can erupt, the risk of return to politically motivated violence is low. The Tribunal assesses that the independent country information before it does not support the applicant’s claim to have a real chance or real risk of harm from members of the Biplav Group, or any other Maoist group. The Tribunal considers the independent information before it does not support the applicant’s claim that he is at risk of being taken by Maoists in the countryside who are seeking to recruit for their cause or for any other reason.

3. According to the applicant at hearing, he arrived in Australia in December 2007 on a Student visa which was cancelled in 2009, and he remained in the community without a visa until he applied for a protection visa in June 2015. The Tribunal considers the period of eight years between his entry to Australia and making his current application, during which time there was a period of unlawfulness, to be a long one. He stated that he did not apply for protection because he had no one here to advise him, and then the earthquake of 2015 occurred and this destroyed their house, so he applied. The Tribunal considers that the apparent lack of urgency to seek protection does not advance a conclusion of there being merit in his claim to fear harm from Maoists or anyone else on return to Nepal.

4. Having considered the applicant’s claims to fear harm from Maoists and all the country information before it, for the reasons set out above, the Tribunal is satisfied the applicant does not face a risk of being taken, forcibly or otherwise, by Maoists in the countryside who want people to support them. The Tribunal does not accept the applicant’s brother’s claim that Maoists are still present in the village, and it is not safe for the applicant to return to the village for this reason. The Tribunal does not accept that the applicant, who, as found above has had no political involvement, has a real chance of serious harm or a real risk of significant harm from members of the Biplav Group, or any other Maoist group for any reason, anywhere in Nepal. The Tribunal finds the applicant does not have a well-founded fear of persecution for this reason. It follows that the Tribunal does not accept the applicant will need protection from Maoists by the authorities who are weak in Nepal. For the same reasons, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk he will suffer significant harm at the hands of Maoists.

   Fear of return to Nepal for economic reasons

5. Expanding on his claim that he came to Australia for a better life, the applicant stated at hearing that he fears return to Nepal because after the earthquake he faces economic hardship – he will have no house, no food and access to no health services. He claims that he will not be able to find work in Nepal, especially since COVID-19. The applicant sees his future in Australia, where he can work and support his family.

6. In considering the applicant’s claim to face economic hardship, the Tribunal acknowledges DFAT country information discussed with the applicant that Nepal is among the poorest and least developed countries globally.[16] The Tribunal accepts the applicant has little in Nepal to return to and that the earthquake in 2015 undermined his family’s economic resources and the Nepalese authorities have not had the economic resources to provide strong support to earthquake victims, placing pressure on the applicant to support his family. The Tribunal also acknowledges that employment in Nepal has been seriously affected by the COVID-19 pandemic.[17]

   [16] ‘Human Development Report 2020: The next frontier: Human development and the Anthropocene’, United Nations Development Program, 15 December 2020, p.365, 20210219162633

   [17] ‘The real cost of Nepal’s second wave’, Bhetwal, A, Nepali Times, 25 June 2021, 20210628104324

7. However, the Tribunal considers that while the applicant may not be able to support himself and his family as he could if he remained in Australia, he will be able to find work in Nepal which will provide him with an income. In making this finding, the Tribunal takes into account that although the applicant stated he is not educated, he finished high school. The Tribunal also notes that the applicant demonstrated at hearing, which was conducted at his request without an interpreter, that he has strong English language skills. While the applicant was generally direct at hearing, he was not forthcoming about his activities in Australia since 2009. He stated that he had support from friends and that sometimes he helped them in their restaurants as he has some cooking skills. The applicant indicated that he is helping to support his family in Nepal. Based on this oral evidence, the Tribunal formed the view that the applicant has developed some cooking and hospitality skills and has been earning some income. The Tribunal is satisfied that with his range of skills, the applicant will gain employment in Nepal. The Tribunal is also satisfied that the applicant has the option of returning to the village where his brother works the family land, or to Kathmandu where he spent the majority of his formative years and where he also has a brother. The Tribunal is satisfied he will have access to some family support if needed. The Tribunal is satisfied that the applicant will find some employment, be able to support himself and that he will not be homeless.

8. The Tribunal has considered the applicant’s claim that he will not have access to health services as he would in Australia. In this consideration, the Tribunal takes into account the applicant’s oral evidence that he is in good health and he indicated that he did not have any particular health needs. As discussed at hearing, DFAT report that Nepal has a universal health system and that health services, while sometimes basic, are accessible in Nepal.[18] The applicant agreed but stated that everyone still must pay for health services. The Tribunal has found above that the applicant will be able to find work in Nepal and will also have the support of his family if required. On this basis, the Tribunal is satisfied the applicant will have access to basic health services if needed.

   [18] DFAT Country Information Report Nepal, 1 March 2019, 2.18–2.25.

9. The Tribunal has considered the applicant’s circumstances on return to Nepal and is satisfied the applicant does not face a real chance of serious harm as instanced in s 5J(5), such as significant economic hardship that threatens his capacity to subsist, denial of access to basic services, where the denial threatens his capacity to subsist, or denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist. Further the Tribunal finds that any economic difficulties the applicant may experience are not for a s 5J(1)(a) reason. The Tribunal finds the applicant does not have a well-founded fear of persecution arising from his economic circumstances.

10. In considering whether there would be a real risk that the applicant will suffer significant harm in Nepal for economic reasons, the Tribunal has considered whether there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Nepal. As discussed above, the Tribunal considers that on the accepted facts, the applicant has some experience and skills in hospitality and strong English language skills, and he will gain some level of employment on this basis. The Tribunal has also found above that the applicant has access to some family support in Nepal, such as support from his [siblings]. The Tribunal is satisfied that his economic circumstances in Nepal will enable the applicant to support himself and have access to basic medical services. Considering all the evidence before it, the Tribunal is satisfied that there is not a real risk the applicant will suffer significant harm as defined at s 36(2A) in Nepal arising from his economic circumstances. Accordingly, the Tribunal is satisfied the applicant does not have a real risk of significant harm in Nepal on this basis.

11. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, for the reasons given above, the Tribunal does not accept that if the applicant were to return to Nepal now or in the reasonably foreseeable future, there is a real chance that he will suffer serious harm for reason of his race, religion, nationality, political opinion or membership of any particular social group apparent on the face of the evidence. The Tribunal finds the applicant does not have a well-founded fear of persecution. For the same reasons, the Tribunal finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm.

    CONCLUSION

12. 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).

13. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

14. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).

    DECISION

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

    Amanda Paxton
    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.

    …