1932478 (Refugee) - [2023] AATA 2737

1932478 (Refugee) [2023] AATA 2737 (23 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Ejaz Khan (MARN: 0213478)
CASE NUMBER: 1932478

COUNTRY OF REFERENCE: Nepal
MEMBER:Sean Baker
DATE:23 May 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 23 May 2023 at 9:54am
CATCHWORDS
REFUGEE – protection visa – Nepal – Federal Circuit Court remittal – particular social group – homosexual – political opinion – opposition to the Maoists – forced marriage to a woman – physical assault – employment – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
MIMIA v VBAO of 2002 (2004) 139 FCR 405
SZRNJ v Minister for Immigration [2014] FCCA 782
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Nepal, applied for the visa on 2 May 2014 and the delegate refused to grant the visa on 9 December 2014.
The case was affirmed by the Tribunal (differently constituted). The court remitted the matter back to the Tribunal. The reasons for this are discussed below.
The applicant appeared before the Tribunal on 3 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant was represented in relation to the review. His representative did not attend the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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 a protection 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 the applicant 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’).
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.
The issue in this case is whether there is a real chance the applicant will be persecuted or a real risk he will suffer significant harm if returned to Nepal. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
The applicant has provided a copy of his Nepalese passport. On the basis of this passport and his testimony, I accept that he is a national of Nepal and that Nepal is the receiving country.
Migration history
The applicant arrived in Australia [in] January 2010 on a fraudulently obtained visa. Following an investigation by the Department they had no identity concerns in relation to the applicant, who has been able to provide a Nepalese passport in his own name. I have no identity concerns.
On 5 October 2010 the applicant applied for a Protection visa.
On 14 February 2012 the applicant’s Protection visa application was refused by the Department.
On 16 October 2012, the refusal decision was affirmed by the Refugee Review Tribunal.
[In] April 2014 the Federal Circuit Court upheld the decision of the Refugee Review Tribunal.
Following the decisions of SZGIZ and SZRNJ v Minister for Immigration [2014] FCCA 782, the applicant was able to apply for a further protection visa.
This application was refused by a delegate on 9 December 2014.
On 28 November 2016, the refusal was affirmed by the Tribunal, differently constituted.
[In] October 2019, the Federal Circuit Court remitted the decision to the Tribunal on the basis that there was no evidence of the Tribunal analysing the current partner’s claims and evidence to support the conclusion that they should be given no weight. The court concluded this despite the general credibility finding because this was a case where the Tribunal itself identified that there were alleged inconsistencies with the third party’s evidence in respect of which none were identified by the Tribunal in respect of the current partner and the court held that there was not a real and meaningful intellectual engagement with the corroborative evidence of the current partner.
Given the reason for remittal and the centrality of the evidence of the applicant’s then partner, prior to the hearing, I wrote to the applicant’s migration agent asking if the applicant were still in a relationship with [Partner A] and whether they would give evidence at a combined hearing. No response was received.
Claims
The applicant claims in his application to fear return to Nepal as he is homosexual and fears harm from the Maoists.
The applicant claimed to have had a homosexual relationship with a friend from his village in Nepal. This relationship lasted for two years. He claims he was forced to marry a woman by his family. He hid his sexuality from his wife and everyone else.
In 2008 the applicant went to [Country 1] on a work visa and stayed for over a year, working in [Industry 1]. He returned to Nepal and then departed for Australia in January 2010 because he could not tolerate living with his wife and hiding his sexuality.
On arrival in Australia, he was living with his brother and hid his sexuality. Due to his lack of knowledge and shyness he did not explore the homosexual activities and environment in Australia. Because of these circumstances he kept his sexual orientation in Australia a secret until he met his homosexual partner, [Partner B] at the end of July 2011. He met [Partner B] through work, the relationship started as a friendship and developed gradually.
Their relationship developed into a sexual relationship in September 2011. After this he would visit [Partner B’s] flat where they had sex and sometimes [Partner B] used to come and visit him at his brother’s place. After his brother and family left, they would have sex together.
Their relationship ended and the applicant met [Partner A] and they were in a sexual relationship for a number of years.
He claims he fears he will be harmed if he returns to Nepal due to his sexual orientation. He claims his wife and her family will not tolerate his homosexuality and will harm him for damaging her and their family dignity and reputation. He claims his family will harm him for bringing them into disrepute. He claims even if he moves to another part of Nepal he will be targeted. He claims due to his limited education and skill he cannot survive in other parts of Nepal.
Prior to the hearing the applicant provided a VIP card from a gay club in Sydney and photos of himself at the 2023 Mardi Gras in Sydney.
The hearing
At the hearing the applicant told me that his relationship with [Partner A] had ended approximately one to one and a half years ago. He said that this had been due to their age difference and other differences. He said that since then he had had little or no contact with [Partner A]. The applicant said he was not in a relationship at the moment.
I asked him about the VIP card from the [Club 1] and the photos of him at Mardi Gras. He said that he went to [Club 1] in [Sydney] and several other clubs in [Suburb 1] once a week or maybe once a month depending on his work. He went there if he wanted to have sex. I took him through the Mardi Gras photos. He did not know anyone in the photos, he had visited Mardi Gras by himself, and the photos had been either selfies or taken by people he did not know.
I discussed with the applicant his life in Nepal and coming to terms with his sexuality. He said he had first realised he was attracted to other men when he was 15 or 16 years old. He described his relationship with his friend from the village. He said that no one is his village had talked about homosexuality. He said that he had felt great and relaxed when he realised he liked other men, he had thought about the fact that his society did not condone this but he knew he had a tendency towards this behaviour. He said that he and his friend had kept their relationship secret as the other villagers would have disowned them and kicked them out from the village if they found out. I asked him a number of times how they were able to hide their relationship, but he was unable to describe this. He said that his family had not found out but had been suspicious and this was why he had had to marry. He said he had not ever been harmed in Nepal on account of his sexuality because he had kept it confidential. He said he feared returning because his family and society would not accept him and may harm him.
I asked the applicant about his family and his marriage. He said that he had [specified family members] living in Nepal, [details deleted], and his [brother] in Australia. He said that he had [number] children, [details deleted]. He said that he was still legally married but their relationship had never been good and he had not had any contact with her since coming to Australia.
I asked the applicant about his claim that he had been harmed by the Maoists. He said that because his father had been a Monarchist he had followed in his footsteps, and due to that the Maoists had hit him. He said this had occurred in 2008. He said that he feared Maoists on return. I noted that things had changed significantly in the 15 years since he claimed to have been assaulted by the Maoists. He said that despite this people were still dying for political reasons. He said that when he was beaten in 2008, he had tried to get police protection, but the police told him they could not provide security 24 hours a day.
I discussed with the applicant the situation for Lesbian, Gay, Bisexual, Transgender, Intersex persons (LGBTI) in Nepal. The applicant claimed at the hearing that being an openly gay person there, he would face harm and discrimination from his family and the community.
I noted that I had had regard to a range of reports and sources of information about the situation for LGBTI persons in Nepal.
I discussed the DFAT country report on Nepal with the applicant and noted to him that the report supports the view that the situation in Nepal for LGBTI people has changed significantly over recent years and that the report concludes that there is a low risk of official discrimination and harassment, a low risk of violence and a moderate risk of societal discrimination and that these risks are declining overall.^[1]
[1] DFAT ‘Country Information Report: Nepal, 1 March 2019, 3.76 – 3.79.
I explained to the applicant that the DFAT report appeared to me to be consistent with other information, and I referred to a number of reports which demonstrate that there are no laws criminalising same-sex sexual activity and that LGBTI persons in Nepal actively advocate for their rights.[2] I noted also that the Human Rights Watch Report of 2017, stated that homosexuals enjoy social and political rights putting the country leagues ahead of much of the world.[3] I note that Nepal has been described as ‘one of the most progressive countries in terms of gay rights in the region’.[4] I raised with the applicant information about the situation for LGBTI people in Nepal which indicates that, since 2007, no laws criminalise homosexuality in Nepal.[5] Whilst the pandemic led to a setback in terms of advancement of the rights of LGBTI persons,[6] this was discussed largely in terms of the lack of advancement in the rights of transgender and intersex persons rather than gay men.[7] Specific reports of violence appear to demonstrate that this is largely targeted at transgender and ‘third gender’ persons.[8] I noted to the applicant that there had been a pride parade very recently, in June 2022 in Kathmandu.[9] I noted that I accept that community attitudes towards same-sex relationships remain negative and that there is societal discrimination against LGBTI people, but that this may not constitute serious or significant harm, and I noted such attitudes and discrimination were particularly acute in rural areas.[10]
[2] 'Country Reports on Human Rights Practices for 2021 - Nepal', US Department of State, 12 April 2022, Section 6, pp.34-35; ILGA Database, Nepal, See also: 'State-Sponsored Homophobia 2020: Global Legislation
[3] HRW, How did Nepal become a Global LGBT Rights Beacon?, 11 August, 2017.
[4] ‘Nepal leads on gay rights with international parade’, ABC News, 30 August 2010.
[5] ‘Nepal leads on gay rights with international parade’, ABC News, 30 August 2010, available at
[6] 'Socially isolated and in financial despair, LGBTIQ individuals are taking their ow n lives', Shrestha, E, The Kathmandu Post, 27 June 2020; See also: 'Nepal's transgender activist Bhumika Shrestha receives international recognition', Lw agun, B, Global Voices, 14 March 2022.
[7] 'State-Sponsored Homophobia 2019', Lucas Ramón Mendos, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 20 March 2019, p.137, 20190327100813; See also: 'World Report 2021. Events of 2020', Human Rights Watch, 13 January 2021.
[8] 'Police arrest five over the murder of a trans w oman w ho w as strangled to death w ith electric cable w ire', Milton, J, Pink New s, 6 February 2020; 'Country Reports on Human Rights Practices for 2021 - Nepal', US Department of State, 12 April 2022,
Section 6, p.34.
127 ‘Visit to Nepal - Report of the Special R
[9] 'At Nepal’s Pride Parade, A Unique Vision of Queer Resistance', Hess, L, Vogue, 14 June 2022; see also ‘Nepal holds first pride parade in capital city’, Glauert, R, Gay Star New s, 1 July 2019.
[10] 'Freedom in the World 2022 - Nepal', Freedom House, 2022, F4, p.11; Country Reports on Human Rights Practices for 2021 - Nepal', US Department of State, 12 April 2022, Section 6, p.35.
I explained that what I inferred from this information was that the situation for LGBTI persons in Nepal had changed significantly since he had lived there, that there had been changes to the law in favour of equality for LGBTI persons, that there was a low chance of violence or harassment by authorities and whilst a moderate risk of societal discrimination, these were reducing over time, that these risks appeared to be greater in rural areas. I explained that I might consider that this indicated that he might return to Kathmandu as an outwardly gay man, where he would face a low risk of official discrimination and harassment, and moderate societal discrimination, but that I assessed this would be lower in Kathmandu as an urban area than his village or another rural area. I might think he could find work and accommodation and not face a real chance of violence or official harassment that would reach the level of serious harm, nor that the societal discrimination I accepted he would face would reach the level of serious harm.
The applicant responded that whilst in Australia people follow the rules, in Nepal they implement rules but the people don’t follow the rules. He said that even in Australia, Nepalese people didn’t react positively to people who are gay and that if he returned people in society say different things, they take it in a different way internally, and if they see a gay in the village, they laugh at that gay person. He said he was worried about the environment over there. He said that people in Nepal are not treated equally. He said that because he did not have an education, he would not get a proper job.
I noted that he had told me he had worked in farming in Nepal, [Industry 1] in [Country 1] and then many years’ experience in [Industry 2] in Australia, and I might think he could find work in one of these sectors in Kathmandu.
I noted that I might think in Kathmandu he could attend pride marches, as he had in Australia, gay clubs and access information and assistance from LGBTI clubs like Blue Diamond. The applicant responded that he did not have anything over there and he would not be able to access the Blue Diamond NGO. I asked why he thought this was and he said to access the Blue Diamond NGO he would have to work and he would not be able to find work. I noted that the information indicated that the economic situation was improving after the pandemic.
I also put to the applicant that given the country information, I might not accept he would face serious or significant harm from his family or wife or her family, I may accept that he would face lack of acceptance and rejection from them but that was all.
The applicant did not directly respond but said that there was a high level of unemployment in Kathmandu. I noted again that he had many years work, so I might think he would be a valuable employee in [industry 2] or [related] industries. The applicant conceded that he may find work but said he would not get work similar to that in Australia and he would feel bad that he did not have freedom and could not live independently.
I also raised with the applicant his political claims. I noted that the elections in November 2022 had resulted in a hung Parliament,[11] that there was political instability but that Maoists had largely joined the legitimate pollical process and largely had not engaged in political violence, with DFAT assessing that political opponents of Maoists did not face violence.[12] I noted that I might think he could return to Nepal and engage in political activity if he wished with no real chance of serious or significant harm. The applicant said that he agreed there had been positive changes but from time to time there were some political incidents as well. I asked if he had been engaged in Nepali politics in Australia and he said he had not.
[11] The Diplomat, ‘Nepali Voters Deliver a Fractured Mandate in Parliamentary Elections’, 29 November 2022,
[12] DFAT ‘Country Information Report: Nepal, 1 March 2019, 3.42 – 3.45.

The applicant said that he could live happily and independently in Australia, if he returned to Nepal, he could not be happy in his life.
Consideration
I have carefully considered the claims of the applicant. Having regard to the totality of the evidence, I am willing to accept that the applicant is homosexual as claimed, that he had a secret homosexual relationship with a friend in Nepal and married against his wishes because of community pressure. I accept that the applicant has had no contact with his wife for the 13 years he has been in Australia. I accept that he has [specified children], who live in Kathmandu. I accept that he has [specified family members] in Nepal, [details deleted], and a brother in Australia.
I accept that the applicant has had a number of homosexual relationships in Australia, and that while not in a relationship at the moment he has casual sex with other men when he is able to, depending on his work. I accept that the applicant would return to Nepal as an openly gay man, having lived openly in Australia. I accept that he may wish to engage with politics at a low level as he did previously in Nepal over 10 years ago.
I am willing to accept that the applicant has supported Royalist parties at a low level in the past because his father did, and that he was beaten up by Maoists in 2008. He has not engaged in any political activity in Australia.
I find that, having lived outside Nepal for over ten years, the applicant would return to Kathmandu, where his children live, rather than return to his village. I find that Kathmandu is his home area.
The country information provides a complex picture of the situation facing LGBTI+ persons in Nepal.
I have had regard to the history of reform in the area of LGBTI rights in Nepal. In doing so I note that Nepal is an impoverished country and the reform of LGBTI rights needs to be seen in this context. In 2007 and 2008, a series of rulings by the Nepalese Supreme Court gave rise to rights and protections to lesbian, gay, bisexual, transgender and intersex persons in Nepal. These rulings directed the government to amend all sexually discriminatory laws.[13] I note country reports indicating that in recent years the High Court has declared that gays and lesbians have equal rights and that discrimination would ‘not be tolerated.’[14] More recent reports indicate that same sex sexual acts are legal in Nepal, and that in January 2015 a committee established by order of the Supreme Court in Nepal to review the legal rights of LGBT recommended same-sex marriages be legislated.[15] On 16 September 2015 the Constitution was amended to enable citizens to choose their preferred gender identity on citizenship documents, making gender and sexual minority discrimination unlawful, and allowing these citizens to participate in state mechanisms and public services to promote inclusion.[16] However, more recent information indicates that these reforms have stalled, with same-ex marriage still not legislated. Other information indicates that progress in law reform has been inconsistent.
[13] ‘Country Reports on Human Rights Practices for 2010 – Nepal’, US Department of State, 8 April 2011, Section 6; ‘Annual Report 2009 – Nepal’, Amnesty International, 28 May 2009; ‘Countries at the Crossroads 2010 – Nepal’, Freedom House, 7 April 2010, p.11.
[14] ‘Society Lags Behind Progressive Laws on Homosexuality’, Pulitzer Center on Crisis Reporting, 3 January 2010.
[15] Carroll, A., Itaborahy, L., International Lesbian, Gay, Bisexual Trans and Intersex Association (ILGA) State-Sponsored Homophobia – a world survey of laws: criminalisation, protection and recognition of same-sex love, May 2015 (10^th Ed) -
[16] Gay law net, Laws – Nepal,
I consider that the country information indicates that there are no laws criminalising same-sex sexual activity and that LGBTI persons in Nepal actively advocate for their rights,[17] that, whilst the situation is somewhat mixed, homosexuals have significant social and political rights.[18] I consider that whilst the pandemic led to a setback in terms of advancement of the rights of LGBTI persons,[19] this was discussed largely in terms of the lack of advancement in the rights of transgender and intersex persons rather than gay men,[20] and that there has been a recent annual pride parade in Kathmandu, restarted after the pandemic. [21] There are NGOs actively advocating for the rights of LGBTI persons. I consider that specific reports of violence I was able to locate appear to indicate that this violence is largely targeted at transgender and ‘third gender’ persons.[22] I accept that community attitudes towards same-sex relationships may remain negative and there is societal discrimination, but that this is particularly acute in rural areas.[23] I find that the more recent country information supports the conclusions drawn in the DFAT report that the situation in Nepal for LGBTI people has changed rapidly and significantly over recent years and that there is a low risk of official discrimination and harassment, a low risk of violence and a moderate risk of societal discrimination and that these risks are declining overall.^[24]
[17] 'Country Reports on Human Rights Practices for 2021 - Nepal', US Department of State, 12 April 2022, Section 6, pp.34-35; ILGA Database, Nepal, See also: 'State-Sponsored Homophobia 2020: Global Legislation
[18] HRW, How did Nepal become a Global LGBT Rights Beacon?, 11 August, 2017.
[19] 'Socially isolated and in financial despair, LGBTIQ individuals are taking their ow n lives', Shrestha, E, The Kathmandu Post, 27 June 2020; See also: 'Nepal's transgender activist Bhumika Shrestha receives international recognition', Lw agun, B, Global Voices, 14 March 2022.
[20] 'State-Sponsored Homophobia 2019', Lucas Ramón Mendos, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 20 March 2019, p.137, 20190327100813; See also: 'World Report 2021. Events of 2020', Human Rights Watch, 13 January 2021.
[21] 'At Nepal’s Pride Parade, A Unique Vision of Queer Resistance', Hess, L, Vogue, 14 June 2022; see also ‘Nepal holds first pride parade in capital city’, Glauert, R, Gay Star New s, 1 July 2019.
[22] 'Police arrest five over the murder of a trans w oman w ho w as strangled to death w ith electric cable w ire', Milton, J, Pink New s, 6 February 2020; 'Country Reports on Human Rights Practices for 2021 - Nepal', US Department of State, 12 April 2022,
Section 6, p.34.
127 ‘Visit to Nepal - Report of the Special R
[23] 'Freedom in the World 2022 - Nepal', Freedom House, 2022, F4, p.11; Country Reports on Human Rights Practices for 2021 - Nepal', US Department of State, 12 April 2022, Section 6, p.35.
[24] DFAT ‘Country Information Report: Nepal, 1 March 2019, 3.76 – 3.79.
I have carefully weighed the information before me. I accept that LGBTI people in Nepal face discrimination. I accept that they face challenges in their daily lives. I accept that Nepal remains a poor, conservative country and that there is still some level of discrimination of LGBTI persons in Nepal and there is not a full acceptance of homosexuals in Nepalese society. I accept that there may be negative social attitudes towards LGBTI people in Nepal. I accept that there may be incidences of non-violent harassment as well as discrimination. I have carefully considered the country information. I find that, when viewed in the context of the history of reforms of LGBTI rights in Nepal there is some degree of tolerance of LGBTI persons in Nepal, particularly in urban areas, and a growing acceptance of LGBTI persons in such parts of Nepal, that homosexual people are not subjected to harm by either the police, other authorities or the general population on any systematic or daily basis such as to constitute a real chance, and that the authorities are making some moves to create a legal space and equality for LGBTI people.
I accept that the applicant will live openly as a homosexual in Nepal and not conceal or supress his homosexuality in any way. I find that he would choose to live in Kathamndu, where his children live and where he has the most chance of securing employment and accommodation, and where the chances of harm and discrimination according to the DAT report are lower. I accept that the applicant’s homosexuality may come to the attention of members of the community in Nepal. I accept that the applicant may face discrimination and negative attitudes from the community and may face low level harassment. On the country information before me I do not accept that there is any real chance or real risk of the applicant being seriously or significantly harmed by the police or other authorities. On the country information I do not accept that he would suffer violence or other forms of serious harm from members of the Nepalese community. In making these findings I have had regard to the most recent country information and in particular to the indications that the situation is improving (although I accept is not perfect), with violence and harassment against LGBTI persons declining over the more recent periods.
I accept that the applicant’s family, his wife from whom he has been separated for many years, and his children, may not accept or support the applicant. I do not accept on the evidence he has provided that he would be harmed by his family.
I find that the applicant would be able to access employment in Kathmandu or another urban area considering his long-term employment in [industry 2] sector in Australia, as well as having worked in other sectors in [Country 1] and Nepal, I find that [industry 2] is an area of work that the applicant has some skill in and would be available to the applicant in Kathmandu or another urban area. The applicant claimed he would suffer a level of discrimination that would lead to him being denied work or accommodation in Kathmandu. On the information before me, I have accepted that the applicant may face a level of societal discrimination including in employment. However, noting the Constitutional rights discussed above making discrimination against sexual minorities unlawful and that the evidence points strongly to the existence of a growing level of acceptance of LGBTI people, I do not accept the applicant will be denied employment or accommodation in Nepal such that he is at a real chance or real risk of facing serious or significant harm.
I have considered whether any harassment and discrimination the applicant might suffer, including harassment and societal discrimination even if cumulatively experienced, such as verbal remarks or disapproval by family or society, would amount to serious or significant harm. I do not accept that it does. I find on the country information that such harassment and discrimination would constitute only declarations of intent rather than the jeopardising of his well-being or livelihood in a material way, or the likelihood of harm, even if suffered over a long period of time.[25] Taking account of all of the information before me I find that the harassment, discrimination and negative attitudes he is at a real chance or real risk of facing does not fall within the meaning of serious or significant harm as defined.
[25] MIMIA v VBAO of 2002 (2004) 139 FCR 405.
I have also considered his political claims. As above I find that the elections in November 2022 resulted in a hung Parliament,[26] and that therefore there is some political instability. However, the country information indicates that the Maoists have largely joined the legitimate pollical process and largely not engaged in political violence, with DFAT assessing that political opponent of Maoists do not face violence.[27] When this was raised with the applicant he said that he agreed there had been positive change but from time to time there were political incidents. In considering the chance of harm to the applicant I have considered his political involvement. He indicated that his political engagement had been driven by his father’s political views and the applicant had engaged at a low level. He has not engaged in Nepali politics in Australia. I find that on return he would resume engaging in Nepali politics at a low level. Having regard to the country information I find that the applicant could return to Nepal and engage in political activity at the same low level if he wished to, with no real chance of serious or significant harm.
[26] The Diplomat, ‘Nepali Voters Deliver a Fractured Mandate in Parliamentary Elections’, 29 November 2022,
[27] DFAT ‘Country Information Report: Nepal, 1 March 2019, 3.42 – 3.45.
I have carefully considered the information and evidence before me and I find that there is no real chance the applicant will suffer serious harm, and that there are not substantial grounds to believe there is a real risk he will suffer significant harm, for reasons of his sexuality as a homosexual man or in any other manner connected with his sexuality, his political opinion or imputed political opinion of being anti Maoist, or cumulatively.
On the basis of the above findings, and having considered the applicant’s claims individually and cumulatively, I do not accept that there is a real chance the applicant would suffer serious harm amounting to persecution if he returns to Nepal now or in the reasonably foreseeable future. Accordingly, I find that the applicant does not have a well-founded fear of persecution in Nepal. Further, on the basis of the above findings, and having considered the applicant’s claims individually and cumulatively, I find that there are not substantial grounds for me believing that, as a necessary and foreseeable consequence of him being removed from Australia to Nepal, there is a real risk of the applicant will suffer significant harm in Nepal.
Conclusions
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 the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Sean Baker
Member

Overview Update', Mendos, L R, International Lesbian, Gay, Bisexual, Trans and Intersex Association, 15 December 2020, p.102.