1934653 (Refugee)

[2024] AATA 4406

1934653 (Refugee) [2024] AATA 4406 (12 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1934653

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Denis Dragovic

DATE:12 September 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 12 September 2024 at 12:33pm

CATCHWORDS

REFUGEE – Protection Visa – Nepal – marrying a man of a higher caste – fears harm from the men who sexually assaulted her – applicant does not have a well-founded fear of persecution – applicant does not face a real chance of serious harm or a real risk of significant harm from the men who sexually assaulted her – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 56, 65, 438, 499

Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379

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 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Nepal. She applied for the visa on 27 October 2014 and the delegate refused to grant the visa on 19 November 2019.

3. The applicant appeared before the Tribunal on 28 August 2024 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

   RELEVANT LAW

5. 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.

   Refugee criterion

6. 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).

7. 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.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Mandatory considerations

19. 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.

20. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. There was a s438 certificate on file. The certificate relates to an examination of the Nepali passport the applicant used to enter Australia. The passport was found to have been altered. This was acknowledged by the applicant at the Departmental stage and was not a relevant factor in the delegate’s decision. There is no evidence before me to indicate that this issue is relevant to the below decision. This was explained at the hearing and the applicant did not present alternative arguments.

22. The applicant is a [age]-year-old woman from Chitwan, Nepal. Her original claim to fear returning to Nepal centred on her marrying a man of a higher caste and that following pressure from his family, he left her and their son.

    The failed love marriage

23. The applicant’s parents were farmers. They owned a house and some land. But following the events described below, the applicant’s father sold the land to pay for his daughter’s travel abroad and has since worked as a labourer. The applicant’s mother also works as a labourer on vegetable farms. The applicant has uncles who have their own families living in Chitwan.

24. The applicant described meeting her future husband while selling vegetables at the market. She described his caste as Brahmin whereas hers as Tamang. She said that Brahmins would consider her of a lower caste. She said that he visited her a lot while in Chitwan and they started a ‘love affair’.

25. She said that her parents did not object to the relationship as they thought that their daughter liked him. According to the applicant, neither parent knew that they were getting married. She said that her marriage involved going to the temple and undertaking the necessary steps.

26. At about the age of [age] or [age], she doesn’t recall exactly, immediately following her marriage she moved to Baglung where her husband’s family resides.

27. She claimed to have been verbally abused by his family while living there. She claimed that they immediately realised that he had brought a lower caste person as a wife. She described her life there as including being given only a little to eat and having a separate room. She said that she wasn’t allowed into the kitchen.

28. In her written application she wrote that they treated her as if she was untouchable. To avoid confusion, it was not claimed that the Tamang is an ‘untouchable caste’ nor is such a claim supported by the evidence.[1]

    [1] David Holmberg, Outcastes in an “Egalitarian” society: Tamang/Blacksmith Relations from Taman Perspective, Occasional Papers in Sociology and Anthropology, Vol 10, 2007 available online at >

    She said that initially her husband was loving and caring, but slowly tilted to his parents’ view until he eventually gave up on her. In turn, she felt threatened and left.

29. They had one child together. The boy is now [age] years old and lives with her parents in Chitwan. She claims that she was beaten after he was born.

30. As a result of the treatment she faced, she decided to return to her family in Chitwan. The applicant claims that her husband would come to their house asking her for a divorce. She claims that his family would pressure her by distance to give him a divorce. But she said that she didn’t want to divorce him because she wouldn’t get any of his property.

31. She claimed that he continues to call her in Australia pressuring her for a divorce. He is claimed to have also threatened her parents that he would set their house on fire or demolish the house unless she gave him a divorce. She claimed that he also came to their house with friends.

32. She claimed that he comes every 5-6 months just to harass her parents. She said that the last time was around February or March of this year. I asked why she suspects that he cares after 15 years. She said that he is still seeking a divorce. 

    The sexual assault

33. While living in Chitwan, after returning from Baglung and unrelated to her husband, the applicant was sexually assaulted by a group of four to five men as she was returning home from the market.

34. She said that they were from the same village as she was from. When she reported it to the community leaders, she said that she was accused of confecting the incident and blaming their children and so they verbally abused her. She described this as ‘torture’. After the sexual assault she claims that the community in Chitwan started to condemn her.

35. Several days after this incident the applicant claims that she moved to Kathmandu as her father thought that the community would kill her. She said that her father organised a room in a friend’s place where she stayed for a few months. She claims that during this period, she was stressed and had suicidal thoughts.

36. She said that those who had sexually assaulted her continued to harass her father asking about her.

37. None of the families lodged any formal police complaint against the applicant.

38. The applicant said that some of the men are now married with their own families while some are not.

39. I asked if she had to return whether she would be able to return to live with her parents and son. She said that everyone has a wish to stay with their parents and son but given the situation the conditions are not right to stay there. She noted that otherwise staying with them would not be a big deal. She also acknowledged that she could work alongside her mother.

40. I accept the applicant’s narration of events. I now turn my mind to consider whether the applicant faces a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.

    Considerations

41. In considering the applicant’s claims, I accept that her husband has sought her out for her to give him a divorce and that he and his parents had put pressure on her. But I do not accept that were she to return she would be violently confronted by the husband such that he would inflict serious or significant harm on her. The reason for this conclusion arises in part from having not acted violently in the past. Although he made threats while she was living with her family in Chitwan, the husband did not escalate to the use of violence. The husband did not harm her after she returned to Chitwan. After the applicant left for Australia, the husband continued to make threats to the father but again did not follow through with them.

42. Considering that the husband could take actions that would lead to far lower consequences to him (i.e., forge the applicant’s signature) than were he to violently harm the applicant and yet has not pursued even this pathway, I find that the husband will not violently harm the applicant. I find that he will berate her and verbally taunt her but none of the actions he takes will amount to serious or significant harm. As a result, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal arising from her husband.

43. Regarding the group of men who assaulted her, I asked her why they would be intent on harming her 13-14 years after the event. She said that they have not accepted that they made a mistake.

44. She said that the group of men told her parents that they will do something to her if she returned. She claimed that the last time this was said was a year ago. I asked what she thinks is still motivating them to hate her. She believes that they expect her to publicly admit that they did not do anything to her and then they would be happy. But because she didn’t say what they wanted her to say, they harbour resentment towards her.

45. The applicant is claiming that the men who had continued to live in the village for 13-14 years after the event, some having established their own families, would re-enliven the accusations of the past and risk bringing upon themselves the possibility of lengthy prison sentences by harming her. She believes that despite having convinced the community that they were telling the truth and she was lying, and for 13-14 years this common understanding had prevailed, the men would dispense with this situation and re-enliven the matter because they resent her for how she responded to their sexual assault 13-14 years ago.

46. While the applicant’s mother has stated that they continue to make comments that they will do something, I am not convinced that their words are anything more than bluster.

47. In considering this claim I note that the test is that the applicant faces a real chance of serious harm. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. But ‘well below 50 per cent’ is not a guarantee that no harm will befall the applicant.

48. I find that the motivations that would drive the men to act against the applicant such that she experiences serious or significant harm are greatly outweighed by the reasons that they would not act violently against her. I find that the applicant will encounter some degree of social ostracization from the men and their families, she will be verbally taunted but I find that such actions do not amount to serious or significant harm.

49. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from the men who sexually assaulted her in the past, nor from their proxies or the portion of the community that came to believe their claims.

    Cumulative considerations

50. I now turn my mind to consider the circumstances cumulatively despite the applicant acknowledging her marriage to the higher caste man was unrelated to the sexual assault.

51. Where the two converge is with the community’s perceptions of her. I accept that parts of the community will have a prejudice against the applicant recalling past events including her marriage to a man of a different caste, her fleeing his family and her ‘false’ accusation of sexual assault by some of the men in the village. This circumstance will tarnish the perspective others will have of the applicant. Some members of the community may speak ill of her, they may look at her with contempt and even verbally abuse her to her face. But I find that none of these instances amount to serious or significant harm.

52. As such I find that when considered cumulatively, the applicant does not face a real chance of serious harm into the reasonably foreseeable future, nor does he face a real risk of significant harm as a necessary and foreseeable consequence of removal.

    CONCLUSION

53. For the reasons given above, I am 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).

1. 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).

2. 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

3. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Denis Dragovic
   Deputy President