1935736 (Refugee)
[2020] AATA 3679
•12 August 2020
1935736 (Refugee) [2020] AATA 3679 (12 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1935736
COUNTRY OF REFERENCE: Nepal
MEMBER:Jason Pennell
DATE:12 August 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 12 August 2020 at 4.49pm
CATCHWORDS
REFUGEE – Protection visa – Nepal – divorce – ex-husband’s links to Maoist group – father’s link to Congress Party – threats from Moaist supporters after divorce and remarriage – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 438, 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 December 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
2.The applicant who claims to be a citizen of Nepal, applied for the visa on 4 December 2019. 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 s36(2)(a) or s36(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 (s36(2)(b) and s36(2)(c) of the Act.
3.The applicant appeared before the Tribunal on 28 July 2020 to give evidence and present arguments. Due to the Covid-19 pandemic the hearing was held by via video conferencing facilities using the Microsoft Teams application. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepalese and English languages. The Tribunal also took evidence from the applicant’s de facto partner, [Mr A] and a friend, [Mr B]
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
Applicant’s identity
In her application for a protection visa the applicant claims that she was born on [date] in Jhapa, Damak, Nepal[1]. The applicant provided a copy of the biodata page of her Nepalese Passport to the department which confirmed the date and place of the applicant’s birth. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant’s identity[2].
[1] Department file [file numbers deleted]
[2] Department file [file numbers deleted]
Based on the document provided by the applicant, the Tribunal finds that she is a citizen of Nepal and as such her protection claims will be assessed against Nepal as the country of reference and ‘receiving country’ respectively.
Applicant’s Migration History
The applicant first arrived in Australia as a dependant on the student visa of her spouse, [Mr C] [in] September 2019. She departed Australia [in] November 2019 and failed to be immigration cleared when she sought to return to Australia. As a result, the department cancelled her visa on 4 December 2019. The applicant was placed in immigration detention and applied for protection on 4 December 2019. On 12 February 2020 the applicant was granted a bridging visa E and released from immigration detention[3].
[3] Department ICSE records
The applicant sought review to the AAT of the decision to cancel her student (dependant) visa on 4 December 2019. On 31 March 2020 the Tribunal found that it had no jurisdiction to review the matter as the applicant was not in the migration zone when the visa was cancelled[4].
[4] Tribunal decision record, case number [deleted], p. 2
The applicant claims not to have travelled to any other country other than Australia. However, she did acknowledge to the department that she has a right to enter India citing the open border between the countries[5].
[5] Department file [deleted [numbers deleted]
On the application for protection form the applicant named [Mr C] as her spouse. She has not listed any other family members or personal contacts on her application, neither in Australia nor overseas[6].
Claims for protection and supporting documentation
[6] Ibid.
The applicant first submitted claims for protection when she applied to the department for protection on 4 December 2019. Her responses are as follows[7]:
[7] Department file [file numbers deleted]
Provide reasons why this applicant left that country or those countries:
‘I went to Nepal to care, my ill mother, I have been attacked by a political party called Nepal Moist Party (Chand) due to my father connection with Nepali Congress. I have to run away from Damak Jhapa to save my life. They wanted to kill me and my father who is in [Country 1] now’
Did this applicant experience harm in that country or those countries?
‘Yes
I went to Nepal to care, my ill mother, I have been attacked by a political party called Nepal Moist Party (Chand) due to my father connection with Nepali Congress. I have to run away from Damak Jhapa to save my life. They wanted to kill me and my father who is in [Country 1] now.
I am physically assaulted by a group political vigilante.’
Did this applicant seek help within the country or those countries after the harm?
‘No
It was very dangerous. Police are very weak and unable to provide any protection to a normal citizen, They are corrupt and I do not trust them’
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
‘No
It was very dangerous. Police are very weak and unable to provide any protection to a normal citizen, They are corrupt and I do not trust them. They may have killed me if I would not have come to Australia.’
Explain what the applicant thinks will happen to them if they return to that country or those countries:
‘If I return to Nepal, I will be punished and killed.’
Does this applicant think they will be harmed or mistreated if they return to that country or countries?
‘Yes
If I return back to Nepal, Nepal Communist Party will kill me and my family. They are already looking for my father who has been hiding in [Country 1].’
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
‘No
It was very dangerous. Police are very weak and unable to provide any protection to a normal citizen, They are corrupt and I do not trust them. They may have killed me if I would not have come to Australia.’
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
‘No
Nepal is a very small and landlocked country with one airport. Nepal Communist Party is very strong with political and agency connection. They will catch me and easily find me in other parts of Nepal and India.’
The applicant’s claims were summarised in the delegate’s decision[8] as follows:
(a)Nepal Maoist Party (Chand) members attacked her due to her father’s connection with Nepali Congress.
(b)The Maoists wanted to kill her and her family.
(c)They have been looking for her father who has been hiding in [Country 1].
(d)She was physically assaulted by a group of political vigilantes.
[8] Protection Visa Decision Record dated 18 December [2019]
On 13 December 2019, the applicant’s representative submitted the following additional claims to the Department[9]:
[9] Department file [numbers deleted]
(a)Her mother had arranged her marriage with her former husband [in] May 2018 as per social customs in Nepal.
(b)She was forced into a child marriage without consent by her mother and family before reaching 18 years of age, a legal minimum age of marriage.
(c)Around [date] May 2018, she met her current partner, who was on a business trip in Nepal.
(d)[In] June 2018, he proposed to her to become his girlfriend and arranged a flat for them to live together on his visits to Nepal.
(e)She did not disclose her relationship to her mother and extended family.
(f)Her husband physically attacked her after divorce was granted in Kathmandu District Court.
(g)[In]November 2019, she flew to Nepal when many Nepal Communist Party (Chand) cadets came to her house and started asking her why she cheated on her husband and assaulted her.
(h)She immediately travelled to Kathmandu to be with her current partner and [in] December 2019 they travelled together to Melbourne.
(i)On arrival to Melbourne, an immigration officer questioned her and cancelled her visa as she disclosed that her relationship with her husband was not great.
Applicant’s documents.
The applicant has provided the following material to the department:
(a)Copy of the biodata page of Nepalese Passport no.: [deleted], Date of expiry: [2028][10]
(b)A copy of Certificate of Marriage Registration dated [May] 2018 in the name of [Mr C], [age], and [the applicant], [age][11]
(c)Undertaking from the applicant’s de facto partner [Mr A][12]
(d)Human Rights Watch report “Our Time to Sing and Play”- Child marriage in Nepal
(e)The Muluki Ain (General Code) document[13]
(f)Two photographs depicting a woman and a bandaged ankle[14]
(g)Case Statement for Protection Visa application file on 4 December 2019 (‘the Case Statement’).[15]
[10] Department file [numbers deleted]
[11] Department file [numbers deleted]
[12] Department file [numbers deleted]
[13] Department file [numbers deleted]
[14] Department file [numbers deleted]
[15] Applicant’s submission prepared by [name deleted] for the applicant (by oral instruction over the phone) on 12 December 2019; [file numbers]
The applicant has provided the following material to the Tribunal:
(a)A certificate from [a dental clinic] dated 27 May 2020 issued to the applicant for attendance on 26 May 2020[16]
[16] Tribunal file, Doc ID: [deleted]
(b)A deed of separation of relationship (divorce) registered [in] September 2019 between [the applicant] and [Mr C], signed by both parties [in] September 2019[17]
[17] Ibid.
(c)The following electronic ticket records issued for [Mr A] and [the applicant][18]:
[18] Ibid.
i.flight from Bhadarapur to Kathmandu [in] July 2019
ii.from Biratnagar to Kathmandu [in] August 2019
iii.flight from Kathmandu to Biratnagar [in] August 2019
iv.flight from Kathmandu to Biratnagar [in] July 2019
v.flight from Biratnagar to Kathmandu [in] November 2019
vi.flight from Biratnagar to Kathmandu [in] September 2019
vii.flight from Kathmandu to Bhadarapur [in] July 2019
viii.flight from Kathmandu to Biratnagar [in] September 2019
ix.flight from Bhadarapur to Kathmandu [in] August 2019
x.flight from Kathmandu to Melbourne via Kuala Lumpur [in] December 2019
xi.flight from Kathmandu to Melbourne via Kuala Lumpur [in] September 2019
(d)Statement of account balance of [Mr A] and [the applicant] from [named financial institution] as at 16 January 2020[19]
(e)Letter from [a] bank dated 16 June 2020 issued to [Mr A] and [the applicant] to confirm opening of a bank account[20]
(f)A statutory declaration made by [Mr A] in support of [the applicant] and providing details of their relationship dated 16 June 2020[21]
(g)A statutory declaration made on department form 888 by [a named person] in support of the relationship on 30 January 2020[22]
(h)A statutory declaration made by [the applicant] on her relationship with [Mr A] dated 11 February 2020[23]
(i)15 photographs of the applicant with [Mr A], posing alone and with other people[24]
(j)The applicant’s statement of claims submitted in support of her protection visa application[25]
Applicant’s evidence.
[19] Tribunal file, Doc ID: 7371525
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] Ibid.
[24] Ibid.
[25] Ibid.
The applicant’s evidence was that she was born on [date] in Jhapa, Damak, Nepal[26]. She claims that she is ethnic Nepalese ethnicity and her religion is Hinduism. She claims that she can speak, read and write in Nepalese.
[26] Department file BCC2019/6467502, Dept Ref ID: CLD2019/82937766, Doc ID: 6847067
The applicant’s evidence was that her parents remain living in Nepal. Due to the Covi-19 pandemic her father recently returned from [Country 1] where he had been working for [a] company for approximately 10 years. The applicant’s mother is a home maker. The applicant has a [brother] aged [age] years old.
The applicant’s evidence was that she completed school in [year] having attended [a] Secondary School in Jhapa, Damak, Nepal. [27] She then attended [an educational institution] for 2 years during which she completed a [qualification].
[27] Ibid.
The applicant’s evidence was that after she had completed her college course her mother arranged for her to be married. The applicant claims that she married [Mr C] [in] May 2018 in [Municipality], Nepal when she was [age] years old (i.e. approximately [time period] before her 18th birthday). The applicant provided a copy of her certificate of marriage registration[28] which stated that she was [an adult] at the time of her marriage. However, according to the applicant’s passport she was still [age] years of age at the time of her marriage. The applicant was not able to say why the certificate had her age at 18 save to say that it was completed by others and she was not aware that it stated she was [an adult].
[28] Certificate of Marriage registration dated 27 May 2018; Department file BCC2019/6467502, Dept Ref ID: CLD2019/85162630, Doc ID: 6847094
The applicant’s evidence was that her marriage was arranged by her mother. Her mother had been introduced to [Mr C]’s family by mutual friends. Her evidence was that her mother arranged the applicant to marry [Mr C] as she believed that he came from a good family. The fact that he was studying in Australia was also considered by her mother to be a good opportunity for the applicant. The applicant had never meet [Mr C] prior to them being married. The applicant’s evidence was that the marriage ceremony was conducted in [a] Temple after which they went to the registrar’s office to register the marriage. Her evidence was that it was a relatively modest wedding with only a few family members and friends attending the ceremony. Her evidence was that her father did not attend the wedding as he was working in [Country 1].
The applicant claimed that after the marriage she went to stay with [Mr C]’s family. She claimed that she felt unwelcome and suffocated after only a couple of days. She claimed she did not have a good relationship with [Mr C]. She claimed that he and his family were aggressive towards her, demanding that she perform many of the household duties. Nevertheless, [Mr C] returned to Australia soon after the marriage. It was their intention that the applicant would obtain a visa and to travel to Australia to join him.
When [Mr C] returned to Australia, the applicant returned to live with her mother. The applicant mother was not happy that she had returned. Nevertheless, the applicant and her mother went to Kathmandu to make application at the Australian consulate for a visa to travel to Australia on the pretence of joining [Mr C]. In Kathmandu the applicant and her mother stayed with a [friend].
After her marriage the applicant claims that she became reacquainted with her current partner[Mr A]. [Mr A] is an Australian permanent resident. The applicant’s and [Mr A]’s evidence to the Tribunal was that he works as [two roles] in Australia. The applicant was aquatinted with [Mr A] as a friend of her mother’s. Her evidence was that she met him initially in Jhapa, Damak (her local village) on or about the [date] May 2018 (i.e. three days after her marriage). When the applicant travelled to Kathmandu for the purposes of obtaining her visa their relationship developed, and she claims he proposed to her [in] June 2018. The applicant and [Mr A]’s evidence was that they are not married but are in a long-term relationship. Based on their evidence and the supporting documentation provided to the Tribunal, it accepts they are in a permanent relationship.
The applicant’s evidence was that she then returned to Jhapa, Damak with her mother. However, [Mr A] arranged for her to return to Kathmandu and they commenced living together in Kathmandu, [Nepal] from [July] 2018 to [September] 2019. The applicant claimed that her mother was not aware that she was living with [Mr A]. Her evidence was that she had told her mother that she was traveling to Kathmandu to stay with a friend, who happened to be [Mr A]’s niece.
The applicant’s evidence was that she and [Mr C] were divorced in September 2019. She provided the department with a deed of separation of relationship (divorce) registered [in] September 2019 signed by the applicant and her husband [in] September 2019.[29] The applicant’s evidence was that she had made the application for divorce. The applicant claimed that she had no contact with [Mr C] prior to their divorce. Her mother informed him and his family of the divorce proceeding. She claimed that he was upset and had tried to contact her by text message, but she claims she blocked his calls. Nevertheless, her evidence was that he returned to Nepal for two weeks for the purposes of completing their divorce.
[29] Deed of Separation (Divorce), Tribunal file, Doc ID: 7359931
The Tribunal noted that the applicant in the separation deed claims that [Mr C], during their marriage, had ignored the applicant’s ‘social, economic and psychological needs.’ In addition, she claimed that he ‘indulge in debates and conflicts even for unwanted and minor issues.’ While the applicant initially stated that [Mr C] had tried to control her actions when he was in Australia by telling her on the phone not to leave the house, she conceded that [Mr C] had been in Australia for the duration of their marriage, and her statement was incorrect. Nevertheless, in the separation deed [Mr C] consents to the divorce on the condition that the applicant make no property or alimony claim.
The applicant claims that [Mr C] was or had been an active member of the Maoist Party. She claims that when he was in Kathmandu to obtain their divorce, he arranged some friends who are members of the party to harass and threaten the applicant. She claims that they called her asking why she was divorcing [Mr C] and stating that they will kidnap and kill her. [Mr A]’s evidence was that the applicant did receive threatening calls on a regular basis around the time of her divorce. The applicant was not able to provide any evidence that [Mr C] was a member or ever had been a member of the Maoist Party. In addition, she was not able to identify the people who threatened her or state how she was aware they were from the Maoist Party. Nevertheless, she claims that they were acting on behalf of [Mr C] as they mentioned his name and wanted to know why she was divorcing him. The applicant’s evidence was that [Mr C] and his family were violent and vindictive people. She claims that they are not open-minded people. The fact that their divorce was a surprise meant that they felt betrayed and shamed by the applicant.
After the applicant’s divorce she travelled to Australia with [Mr A] [in] September 2019. The applicant travelled to Australia as a dependant on [Mr A]’s student visa. The applicant stated that at the time she gave no thought as to the type of visa on which she travelled to Australia. She merely stated that she wanted to travel with [Mr A]. The Tribunal accepts the applicant’s evidence in relation to this issue.
The applicant returned to Nepal [in] November 2019. She claimed that her mother had informed her that she was ill, and the applicant returned to care for her mother. The applicant stated that when she arrived in Jhapa, Damak [in] November 2019 her mother had recovered. Her evidence was when she returned to her mother’s home, she informed her mother about her relationship with [Mr A]. [In] November 2019 the applicant claims that at about 1.00pm four or five men came to her mother’s house and attacked her. Her evidence was that they entered through the back door and asked why she had divorced [Mr C]. She claims that they started to beat her and as a result received injuries to her legs and arms. She did not provide any medical evidence of having been injured. The applicant’s evidence was that the following day she returned to Kathmandu to be with [Mr A] where she continued to receive text messages threating to kidnap and kill her if she returned.
[Mr A]’s evidence to the Tribunal was that the applicant was beaten by men arriving at her mother’s house [in] November 2019. He stated that upon her return to Kathmandu he accompanied her to a medical clinic and pharmacy for the purposes of getting medical attention and medicine for her injuries. In addition, he claimed that she continued to receive threating phone calls when she arrived in Kathmandu. [Mr A] was not able to say the reason for the attack but did say that [Mr C]’s family were upset with the applicant for having divorced him and for having entered into a relationship with [Mr A].
Finally, the applicant claimed that her father was a member of the Nepali Congress for approximately 15 years. She claims that her father was targeted by Maoist Party members. The applicant claims that as a result of her fathers’ involvement in the party she has been targeted by Maoist Party members. As a result, she fears that she will be harmed if she returns to Nepal.
The applicant claims that if she returns to Kathmandu, she will be targeted by members of the Maoist Party as friends of [Mr C] and as a result of her father’s involvement in the Nepali Congress. She claims that if she returns to Nepal she will be kidnapped and killed as claimed.
Finally, [Mr B] gave evidence to the Tribunal. His evidence was that he is the nephew of [Mr A]. He was not able to say anything about the threats received by the applicant in Nepal but confirmed that the applicant and [Mr A] are in a permanent relationship, which the Tribunal has accepted.
COUNTRY INFORMATION
The Tribunal in accordance with the Ministerial direction No 56 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT), in particular, the DFAT report on Nepal dated 1 March 2019 (‘the DFAT Report’).[30] The Tribunal has had particular regard to those parts of the DFAT report as detailed in annexure A attached to these reasons.
[30] DFAT Country Information Report India 17 October 2018
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[31]. Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[32]
[31] s.5AAA Migration Act 1958.
[32] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[33] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[33] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482
If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[34] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.
[34] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
In considering the overall the credibility of the applicant, the Tribunal refers to Randhawa v MILGEA (1994) 52 FCR 437 at 451, in which Beaumont J stated that 'in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants'. In addition the Tribunal refers to Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191, in which Gummow and Hayne JJ said that 'the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising'. The Tribunal has sought to adopt in this case a liberal attitude in consideration of the applicant’s claims in this case.
Applicant’s Refugee Claim
Relevant Grounds
The applicant did not specifically submit that she fell within the scope of s.5J(1)(a) of the Act. However, based on the applicant’s claims it may have been possible for her to claim that she fell within s.5J(1)(a) of the Act by reason of her political opinion or alternatively her membership of a particular social group. That is, as a person who is threatened by members of the Maoist Party.
In considering an application of political opinion for the purposes of the Convention definition of refugee (or s.5H(1) of the Act), it was held that a political opinion need not be an opinion that is held by the refugee. It is enough that such an opinion is imputed to him or her by the persecutor.[35] In Saliba v MIMA[36] the Court held:
‘... for Convention purposes, a claimant’s political opinion need not be expressed outright. It may be enough that a political opinion can be perceived from the claimant’s actions or is ascribed to the claimant, even if the claimant does not actually hold the imputed opinion.’[37]
[35] MIEA v Guo (1997) 191 CLR 559 at 571 referring to Chan v MIEA (1989) 169 CLR 379 at 416 per Gaudron J and at 433 per McHugh J.
[36] Saliba v MIMA (1998) 89 FCR 38 at 49.
[37] ibid
In SZANB v MIMIA [2004] FMCA 387[38] It was held that the political opinion need not necessarily be that of the asylum seeker. The political opinion of the alleged perpetrators of violent acts may also be relevant.
[38] SZANB v MIMIA [2004] FMCA 387 (Driver FM, 18 June 2004) at [8].
In this case the applicant claims that if she returns to Nepal, she will be persecuted by Maoist Party members as a result of her father being a member of the Nepali Congress. In addition, she claims that [Mr C], as a Maoist Party member, has caused members of the party to threaten and harass her. While it appears that the threats claimed to have been made by [Mr C]’s colleagues in the Maoist Party are primarily as a result of her domestic situation rather than the political opinions of the applicant or party members, for the purposes of this decision the Tribunal is prepared to accept that she falls within the scope of s.5(1)(a) of the Act by reason of her political opinion.
In addition, the applicant claims to fall within the scope of s.5J(1)(a) of the Act by reason of her membership of a particular social group (PSG). When a person claims to fear being persecuted for reasons of their membership of a PSG, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be a treated as a member of a PSG (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it or must distinguish the group from society.[39]
[39] Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.
In this case the applicant claims she fears being harmed by members of the Maoist Party by reason of her father membership of the Nepali Congress and as a result of her divorce from [Mr C]. While the Tribunal has some doubts about that the applicant’s fear of being harmed as claimed, it is prepared for the purposes of this decision to accept that the applicant is a member of a particular social group pursuant to s.5J(1)(a) of the Act.
Applicant’s well-founded fear.
Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of social a particular or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.
The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. 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.
In this case, the applicant claims that she has been threatened with serious harm by members of the Maoist Party as friends of [Mr C] and by reason of her father’s membership of the Nepali Congress. Accordingly, she claims that there is a real chance she will suffer serious harm if she returns to Nepal. In this case the applicant claims that she has been threatened with serious harm by members of the Maoist Party as friends of [Mr A] and by reason of her father’s membership of the Nepali Congress. Accordingly, she claims that there is a real chance, she will suffer serious harm if she returns to Nepal. However, for the reasons detailed in this decision the Tribunal does not accept the applicant’s claim that she was attacked or threatened by Maoist Party members as friends of [Mr A] or by reason of her father’s membership of the Nepali Congress. Accordingly, the the Tribunal does not accept that the applicant holds a subjective fear of returning to Nepal as claimed..
Accepted Facts
Based on the applicant’s evidence and the documentary evidence provided to the department and the Tribunal, the Tribunal finds that:
(a)the applicant was born on 10 June 2000 in Jhapa Damak, Nepal[40].
(b)the applicant is ethnic Nepalese ethnicity and her religion is Hinduism.
(c)the applicant speaks, reads and writes Nepalese.
(d)the applicant’s parents remain living in Nepal. The applicant’s father was working in [Country 1] for approximately 10 years but had now returned to Nepal due to the Covid-19 pandemic.
(e)the applicant has a [brother] aged [age] years old living in Nepal.
(f)the applicant completed school in [year] having attended [a] Secondary School in Jhapa Damak, Nepal. [41]
(g)the applicant attended [an educational institution] at which she completed a [qualification].
Applicant’s Claim as a Refugee
[40] Department file [numbers deleted]
[41] Ibid.
The applicant claims that there is a real chance she will be seriously harmed by members of the Maoist Party if she returns to Nepal by reason of the fact that her father was a member of the Nepali Congress. In addition, the applicant claims that she would be harmed by members of the Maoist party by reason as a result of having divorced her ex-husband and having a relationship with another person. During the hearing the applicant provided her evidence to the Tribunal in a direct and detailed manner.
Applicant’s father as a member of the Nepali Congress
The applicant claimed that her father was a member of the Nepali Congress for approximately 15 years and, as such, her father had been targeted by Maoist Party members. The applicant claims that as a result of her father’s involvement with the Nepali Congress she was targeted by Maoist Party members when she returned to Nepal to visit her mother. As a result, she claims that she will be harmed if she returns to Nepal.
The DFAT report[42] states that Nepal has enjoyed several years of political stability. It states that the country has a lively political environment which provides an opportunity for diverse political parties and views. It stated that an individual’s membership of a political party, along with their ability to identify as a member of a particular party, is generally respected. Accordingly, it assessed that the risk of a return to widespread violence is low
[42] DFAT Report @ p.19
In relation to the Nepali Congress the country information[43] reports that it is currently in a state of deep division with growing disenchantment among the party’s rank and file with the Nepali Congress Discipline Committee, having recently expelled its former Joint General Secretary, Govinda Raj Joshi and its secretary, Dadeldhura Ram Bahadur Bisht, for a period of five years. Its claimed that their expulsion from the Congress is tantamount to death of its ideals.[44]
[43] SPOTLIGHT NEPAL, NEPALI CONGRESS Unjust Act Published in Magazine Issue: VOL. 14 No. 02, August 07, 2020 ( Shrawan 23, 2077) Publisher: Keshab Prasad Poudel Online Register Number: DOI 584/074-75; ibid
Th country information reports that the Communist parties won both the parliamentary and provincial assembly elections in 2017. In 2018 the far-left parties, including the Communist Party Nepal and the Communist Party Nepal, merged. The DFAT report states that the Maoists have the potential to control the national agenda without the need to resort to violence. It is reported that there is no civil war in Nepal and Maoists are not persecuting Nepali nationals on the basis of their political opinion.[45] In general, DFAT reports that the political opponents of the Maoists do not face violence, unless they participate in violent demonstrations.[46] In light of the country information which indicates that the Nepali Congress is in a state of deep division and that political opponents of the Maoist Party do not face a risk of violence, the Tribunal finds that there is no real chance the applicant will be seriously harmed on her return to Nepal by members of the Maoist party as a result of her father’s involvement in the Nepali Congress .
[45] Huffpost, ‘Is Nepal Still Unsafe Because of Maoists?’ dated 4 August 2016 by Kishor Panthi
[46] DFAT Report @ p.19
In this case the applicant did not provide any detail of her father’s involvement in the party. There was no independent evidence that he was a member of the Nepali Congress as claimed or that he held a position of responsibility within the party either as a politician or as a party leader. In fact, given that the applicant’s evidence that her father had been working [Country 1] for the last 10 years for [a] company, it was difficult to understand how he could have any meaningful involvement with the Nepali Congress to the extent that he would have profile that would make him and the applicant a target of the Maoist party. The applicant maintained that during his time in [Country 1] her father would return to Nepal time to time but kept a low profile. In addition, her evidence was that her father had now returned to Nepal due to the Covid-19 pandemic. As such, despite the applicant claiming that her father was a target of the Maoist Party, the fact that he returned to Nepal on a regular basis, and for the pandemic, indicates that he did not hold any fear of retuning to Nepal at any time. Therefore, given the vague nature of the applicant’s evidence and lack of any independent evidence as to her father’s involvement in the Nepali Congress, the Tribunal does not accept the applicant’s evidence that her father was a member of the Nepali Congress as claimed. Accordingly, the Tribunal does not accept her claim that the she was attacked by members of the Maoist Party upon her return to Jhapa Damak to visit her mother in or about November 2019.
Accordingly, based on the applicant’s evidence and the available country information the Tribunal does not accept the applicant’s evidence that she will be harmed by members of the Maoist party by reason of her father’s involvement in the Nepali Congress as claimed. As such, the Tribunal finds that there is no real chance the applicant will suffer serious harm by reason of her father’s involvement in the Nepali Congress.
The Applicant’s Marriage/Divorce.
The applicant’s evidence was that after college her mother arranged to marry [Mr C] [in] May 2018 in [Municipality], Nepal. The applicant provided a copy of her certificate of marriage to the Tribunal. Based on the applicant’s evidence and the copy of her certificate of marriage. The Tribunal accepts that she was married to [Mr C] as claimed. Despite not being able to say why the marriage certificate recorded that she was [an adult], the Tribunal accepts that she was [age] years old at the time of her marriage to [Mr C].
It may have been the case that the applicant’s age was recorded as being [an adult] on the marriage certificate by reason of Chapter 17 of the Muluki Ain (General Code) 2020 making it an offence to be married under the age of 18 years. It states:
‘While contracting a marriage, no one shall arrange to marry nor cause to be married where the male and the female have not completed the age of Eighteen years with the consent of the guardian and that of twenty years in case of absence of the consent of the guardian. The persons having attained majority, out of those who marry or cause to be married in violation of this provision, shall be punished as follows:
………………………………………………..
If a female above the age of fourteen years but below the age of Eighteen years is married or caused to be married, punishment of imprisonment for a term not exceeding Six months or a fine of a maximum of Ten Thousand Rupees or both shall be imposed…………………..3’
……………………………………………..
In case either a male or a female below the age of Eighteen years is married and no offspring has been born from the marriage, the male or female who is below the age of Eighteen years may get such a marriage declared void if he or she does not agree with such a marriage upon having attained the age of Eighteen years………………..9’
The applicant’s evidence was that her marriage was arranged by her mother. She claimed that that her mother had been introduced to [Mr C]’s family by a family friend. The applicant conceded that [Mr C] was considered a favourable husband by her mother partially because he was a student in Australia and as such, she would also be able to travel to Australia.
The country information[47] states that thirty seven percent of girls in Nepal are married before the age of eighteen years and ten percent are married by the age of fifteen.. Reasons for child marriages occurring in Nepal include poverty,[48] lack of access to education[49] escaping deprivation and abuse at home.[50] However, the applicant’s evidence was that her mother had arranged her marriage because [Mr C] was from a good family rather as a result of any advantage or suffering incurred by her or her family. In fact, it was the applicant’s evidence that she has completed school and obtained a [qualification].
[47] Human Rights Watch ‘‘Our Time to Sing and Play’’ Child Marriage in Nepal,’ September 2016 @ p.3
[48] Op Cit p.30
[49] Op Cit p.32
[50] Op Cit @ p.48
The applicant claimed that after her marriage she moved in with [Mr C]’s family. She claimed that she was treated badly by [Mr C] and his family when she first arrived. She claimed that he was abusive and ordered her to remain in the home.
However, [Mr C] left for Australia soon after their marriage and, as a result, the applicant initially returned to her mother’s home but then travelled to Kathmandu with her mother to arrange a visa to join him.
Soon after her marriage the applicant formed a relationship with [Mr A]. [Mr A] travels between Australia and Nepal on a regular basis for the purposes of conducting a [business]. The applicant’s evidence was that [Mr A] arranged a residence for her in Kathmandu to live, which they shared. She claimed that she kept her relationship with [Mr A] from her mother and [Mr C] and his family. The applicant did not claim any risk of harm during the period in which she lived in Kathmandu with [Mr A].
Despite being entitled to have made an application to have her marriage declared void under Chapter 17 of the Muluki Ain (General Code) 2020 and Section 73 of the National Civil Code Act 2107 (2074) by reason of the fact that she was not 18 years of age at the time of her marriage, the applicant’s evidence was that [in] September 2019 she made application to divorce [Mr C]. [Mr A] confirmed that the applicant was divorced in September 2019. Based on the applicant’s evidence and the evidence of [Mr A], together with the deed of separation provided by the applicant to the Tribunal, it accepts and finds that the applicant and [Mr C] were divorced [in] September 2019
The applicant’s evidence was that her mother had informed [Mr C]’s family of the divorce proceeding. The applicant claims that upon being informed of the divorce [Mr C] became very abusive and angry toward the applicant. She claims that he physically attacked her at the court after the divorce proceeding were finalised[51]. However, [Mr A] did not provide any evidence of the applicant having been attacked as claimed. In addition, the applicant’s evidence was that she did not have any contact with [Mr C]. She stated that around the time of their divorce he rang her several times on her mobile phone, but she did not answer his calls. She gave no evidence of having been attacked at the court after the proceeding. The Tribunal notes that in the separation deed [Mr C] states that he consents to the divorce and that the divorce was granted by consent. Therefore, based on the evidence provided to the Tribunal, together with the contents of the separation deed, the Tribunal does not accept the applicant’s claim that she was attacked by [Mr C] after the divorce proceeding as claimed.
[51] Applicant’s submission prepared by [name deleted] for the applicant (by oral instruction over the phone) on 12 December 2019.
The applicant claims in or about September 2019 (around the time of her divorce) she received threatening calls from members of the Maoist Party asking why she was divorcing [Mr C] and threatening to kidnap and kill her. [Mr A] confirmed to the Tribunal that the applicant received several calls threatening to kidnap and kill her. He claimed that on a few occasions he had cause to answer the applicant’s phone and as a result heard the threats himself. He was not able to say if they were from Maoist Party members but confirmed the threats were direct to the applicant as a result of her divorce from [Mr C]. The applicant claimed that [Mr C] had been a member of the Maoist Party and had arranged colleagues from the party to threaten and harass her. The applicant did not provide any independent evidence of [Mr C] membership of the party and was not able to identify any of the people who she claims threatened her as members of the party. In addition, she was not able to explain to the Tribunal the circumstance in which [Mr C] had maintained his connection with the Maoist Party while he had been studying in Australia. The applicant claimed that she believed that the phone calls were made by his friends because they mentioned his name when threatening her and asking why she had divorced him. However, it was not made clear to the Tribunal how the applicant became aware they they were members of the Maoist Party. Therefore, given the vague nature of the applicant’s evidence in relation to [Mr C]’s membership of the Maoist party together with the absence of any supporting evidence in relation to his membership of the party, the Tribunal does not accept the applicant’s evidence that [Mr C] was a member of the Maoist Party as claimed. Accordingly, the Tribunal does not accept that the phone calls received by the applicant were by members of the Maoist Party.
In response to the Tribunal, the applicant conceded that the threatening calls she received were not as a result of any political opinion expressed by her but rather as a result of her divorce from [Mr C]. Therefore, based on the applicant’s evidence and the evidence of [Mr A], the Tribunal accepts she received threatening calls from friends of [Mr C] but does not accept that they were made by members of the Maoist party as claimed. As a result, the Tribunal does not accept the applicant’s evidence that she was threatened and attacked by members of the Maoist Party as claimed. Accordingly, the Tribunal finds that the there is no real chance the applicant will suffer serious harm as a result of being threatened on the phone by members of the Maoist party as claimed.
After her divorce the applicant then travelled to Australia with [Mr A] for a brief time. At this time the applicant stated that she informed her mother of her relationship with [Mr A].
The applicant claimed in or about November 2019 her mother became ill. As a result, she returned Nepal [in] November 2019 to visit her mother. Her evidence was that when she arrived at her mother’s home in Jhapa Damak she had recovered. Her evidence was that [in] November 2019 she was attacked by a group of men at her mother’s home. She claimed that her mother did nothing during the attack but merely watch on. The applicant claimed that four or five men entered her mother’s house through the back door and attacked her by hitting her on the back and her legs. She claimed that she was thrown to the floor upon which they continued to hit her. The applicant claims that she suffered injuries to her legs, arms and back. [Mr A]’s evidence that he accompanied her to the Doctor in Kathmandu the following day was vague and lacking in any detail. He did not provide any specific evidence of her injuries or the medicine she obtained at the pharmacy. The applicant did not provide any medical certificate in relation to her injuries or provide any other documentary evidence of the injuries she claimed to have received.
In any event that applicant’s account of the attack to the Tribunal was very different to the one she provided in the Case Statement that accompanied her protection visa application. In the Case Statement[52] the applicant claims that Nepal Communist Party cadets came into her mother’s house and started asking her why she cheated on [Mr C]. She claims that she explained about her marriage being forced upon her however, she claimed that they blamed her father as he was from another political party. She claims that a few female cadets slapped her multiple times and threatened to kill her if she did not return to [Mr C]. The applicant claimed that her father had been hiding in [Country 1] for the past two years due to issues with the Nepal Communist Party.
[52] Applicant’s submission prepared by [name deleted] for the applicant (by oral instruction over the phone) on 12 December 2019.
The Tribunal has already found that the applicant’s father was not a member of the Nepali Congress and that [Mr C] was not a member of the Maoist Party. Accordingly, based on the applicant’s own evidence and the available country information referred to above, the Tribunal does not accept that the applicant was attacked by members of the Nepal Communist Party or the Maoist Party at her mother’s home as claimed. As such, the Tribunal finds that there is no real chance the applicant will be seriously harmed by members of the Nepal Communist Party or the Maoist Party if she returns to Nepal by reason of having been attacked in her mother’s home as claimed.
Threats from [Mr C] and/or Family members.
For the reasons stated above the Tribunal has found that the applicant was not attacked by [Mr C] after their divorce in September 2019.
While the Tribunal has not accepted that the applicant was threatened by phone and attacked at her mother’s home by members of the Maoist party, it does accepts that friends of [Mr C] may have been responsible for the claimed threats against the applicant on the telephone and the attack at her mother’s home. The applicant’s evidence in relation to [Mr C] and his family was that they are traditional and narrow-minded people. In circumstances where the applicant had been the subject of an arranged marriage to [Mr C] and had divorced him having entered into a relationship with [Mr A], the Tribunal accepts that [Mr C] and his family may have considered that they had been insulted and shamed by the applicant’s actions.
The Tribunal notes the country information[53] which reports that honour killings are becoming more prevalent in Nepal. The DFAT report[54] states that Nepalese women regardless of their economic caste or ethnic status are vulnerable to violence in many forms, including rape, sexual abuse and human trafficking.[55] DFAT assess that women in Nepal face high levels of societal and official discrimination and a moderate risk of violence.
[53] Times of India, Honour Killings Come to Nepal, 25 October 2010 by Bharat Matrimony The Economic Times Honour Killings Come to Nepal, 25 October 2010. Sydney Morning Herald, ‘Nepalese Women Suffering.’ By Natalie O'Brien 21 August 2011, Op Cit @ p.22
[55] Op Cit @ p.22
Based on the available country information and the evidence of the applicant and [Mr A] and in circumstances where [Mr C] and his family were likely to have been shamed by the applicant, the Tribunal finds that she received threats on the telephone by people associated with [Mr C] and/or his family. However, if the attack at her mother’s home was conducted by people associated with [Mr C] and his family as alleged by the applicant then the threats she received in the Tribunal’s view did not amount to do not amount to serious harm.
While the Tribunal has serious concerns about the applicant’s evidence in relation to the attack in her mother’s home, it concedes that its possible for the attack to have been arranged by [Mr C] and/or his family. However, based on the applicant’s evidence, it appears any harm she suffered did not amount to serious harm. From the applicant’s evidence she appeared for have received only minor injuries. The applicant has not provided any medical report in relation to her injuries. The applicant had submitted two photographs to the department depicting a bandaged ankle and a woman with her eyes closed with a woollen hat. The Tribunal places little weight on these photos as they fail to identify both the applicant and the nature and cause of the injured ankle shown. In any event, the Tribunal notes that the applicant was able to board a commercial flight to Kathmandu the day after the attack before seeking any medical attention. In such circumstances, the Tribunal can only assume that any injuries suffered by the applicant were minor in nature and did not amount to serious harm.
In any event, notwithstanding that any harm did not amount to serious harm, given the passage of time, the fact that [Mr C] has spent most or all of the time he and the applicant were married in Australia, the fact that the applicant’s divorce was by consent and the applicant made no financial claim on [Mr C] or his family, the Tribunal is of the view that any shame experienced by [Mr C] and his family would have been short lived. There is no evidence that she would continue to be targeted by [Mr C] or his family if she returns to Nepal. As such, the Tribunal finds there is no real chance of the applicant being seriously harmed if she returns to Nepal as a result of any threats or attacks by associates of [Mr C] or his family.
Applicant as a female in Nepal
The Tribunal notes the DFAT report that states [56] that Nepali women and girls across the society, regardless of their economic caste or ethnic status are vulnerable in many forms including rape, sexual abuse and human trafficking. It’s reported[57] that Nepali women rarely receive the same educational, employment and economic opportunities as men. Girls are vulnerable to early marriage which disrupts or ends their formal education. In addition, it notes that sexual harassment is a commonly reported problem in Nepal. Finally, the DFAT report[58] assesses that women in Nepal face high levels of societal and official discrimination and moderate risk of violence.
[56] DFAT Report @ p.22
[57] DFAT Report @ p.23
[58] ibid
Notwithstanding the country information, both [Mr A] and the applicant’s evidence was that the applicant, as a single woman, was not at risk of serious harm if she returned to Nepal. The Tribunal accepts the applicant’s evidence and finds that the there is no real chance that she will be seriously harmed if she returns to Nepal as a single woman in Nepal.
As a result of the reasons above, the Tribunal finds that there is no real chance the applicant will be seriously harmed if she returns to Nepal. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution and that she does not satisfy s.36(2)(a) of the Act regarding the claims that she was threatened and harmed by associates of her ex-husband.
Applicant’s complementary protection claim
The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'. The Tribunal has considered whether it 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 the applicant will suffer significant harm of any kind.
The Tribunal has not accepted the applicant’s evidence that she was threatened and attacked by Maoist Party members. In addition, it has found that there is no real chance that she will be harmed by associates of [Mr C] or his family in the event that she returns to Nepal. Given the real chance test is the same as the real risk test, the Tribunal does not accept that the applicant has a real risk of significant harm as outlined in s.36(2A)(c) and (d). Accordingly, the Tribunal finds that there is no real risk the applicant will be significantly harmed by the Maoist Party or associates of [Mr C] and his family as claimed.
In all the circumstances, the Tribunal finds that, pursuant to s.36(2)(aa), there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to their receiving country, that there is a real risk that she will suffer significant harm of any kind.
At no stage did the applicant advance any other reason, such as her race, nationality or religion, in her written or oral claims that she is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s.36(2)(a) and s.36(2)(aa) of the Act.
Having considered her claim and accepted circumstances, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal that there is a real risk she will suffer significant harm, including that she will be arbitrarily deprived of her life; suffer the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment, as required by s36(2)(aa).
CONCLUSION
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 Act for the reasons mentioned in s.5J(2). 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) based on 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 applicants a protection visa
Jason Pennell
Senior Member
Annexure A
Those parts of the DFAT report specifically considered by the Tribunal are:
Fear of Maoists[59]
[59] DFAT Report @ p.19
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.
Women[60]
[60] DFAT report @ p.22
3.61 The 2015 Constitution prohibits discrimination on the basis of gender in relation to inheritance and government employment and allows for ‘positive discrimination’ to establish special opportunities in relation to education, health, employment and social security. The constitution also prohibits physical, mental, sexual and psychological violence against women and establishes the right to compensation for such violence.
3.62 The World Economic Forum’s Global Gender Gap Report 2017, an index that measures gender-based gaps in accessing resources and opportunities ranked Nepal 111 out of 144 countries.
3.63 The practice of ‘chaupadi’, in which women are expelled from their homes during menstruation and sometimes after childbirth, persists, despite being outlawed in 2005 and prohibited in the 2017 criminal code. The practice sees menstruating women, particularly in rural western parts of the country, affected by ‘untouchability’. These women will live in sheds that are otherwise used by cattle or specially designed for this purpose as ‘menstruation sheds’ where they may be exposed to extreme temperatures and wild animals including venomous snakes. During this time they are not allowed to access green vegetables, fruit, other plants or milk and have limited access to water. Women are expected to engage in outdoor manual labour during this time. These conditions may be life threatening. Chaupadi may be known by different names including chhue, bahirhunu, chaukulla or chaukudi, depending on the district. While mostly associated with rural areas, particularly in the west of the country, taboos about menstruation can be found across the country, including in urban areas and among women who remain displaced by the 2015 earthquake and living in temporary shelters.
3.64 Nepali women and girls across society, regardless of their economic, caste or ethnic status, are vulnerable to violence in many forms, including rape, sexual abuse and human trafficking. Nepal’s laws contain a narrow definition of rape and have a 180-day limitation period for filing complaints. Penalties for marital rape are low and the crime is rarely reported. The 2017 criminal code set new, higher gaol sentences for rape, however DFAT is not aware of whether this provides an effective deterrent. Police frequently fail to register complaints or investigate and prosecute rape cases, and often divert cases to settlement though informal justice mechanisms, particularly in rural areas.
3.65 Reports of sexual assault to police are increasing as awareness of the criminal nature of that act and the police response increases. Most rapists are close family members and women from low socio-economic communities are particularly vulnerable.
3.66 According to the 2018 statistical update to the United Nation’s Development Fund’s Human Development Report, 25 per cent of women have experienced intimate partner violence in Nepal. Domestic violence shelters do exist in small numbers in some districts. They do not provide long-term solutions, often limited to 45 days of residence, and women who temporarily live in shelters are often forced to return back to their violent domestic situation due to a lack of alternative options. Many women lack financial independence and are reluctant to seek help in situations of violence because of the risk to their security and livelihood.
3.67 The 2009 Domestic Violence Act provides for monetary compensation and psychological treatment for victims, but authorities generally do not prosecute domestic violence cases. The legislation has a reconciliation and mediation approach and compensation must be pursued through the courts.
3.68 Sexual harassment is a commonly reported problem. The practice is banned, but women’s groups report that penalties are not severe enough to act as a deterrent. Women who work in the informal sector are particularly vulnerable to sexual harassment.
3.69 The mistreatment and killing of women for allegedly practising witchcraft is still prevalent in Nepal. Allegations of witchcraft most often relate to the onset of sickness or death amongst people and animals Diseases spread through epidemics are also believed to be related to black magic. Victims are often beaten and forced to consume human excrement. Victims are usually poorly educated, economically vulnerable, from low-castes with little support around them. Widows are particularly vulnerable. Women do not often report cases because of a fear of being abandoned by their families and ostracised from their communities. The Anti-Witchcraft Act 2015 provides for jail sentences of 5 to 10 years and fines of up to AUD$1,400 for those convicted of maltreatment of anyone on accusations of witchery.
3.70 Nepali police have set up special women’s cells in police stations that are staffed by female police officers to facilitate the reporting of crime by women in all districts. NGOs report that many of these cells are not fully operational, but that the situation is improving and that the police have continued to resource and improve these services.
3.71 Nepali women rarely receive the same educational, employment and economic opportunities as men. Girls in particular are vulnerable to early marriage which disrupts or ends their formal education. Single women and widows are particularly vulnerable. While a widowed woman is legally entitled to her late husband’s estate, many widows are unaware of their rights or unable to enforce them due to traditional attitudes and weak legal protections.
3.72 Part 2 of the 2015 Constitution has introduced positive changes to the citizenship rights of women. Children’s citizenship can now be conferred through a mother or father, whereas in the past citizenship had to be attested to by a husband or father.
3.73 Current laws allow foreign women married to Nepali men to immediately obtain Nepali citizenship while foreign men married to Nepali women can only become a naturalised Nepali after domiciling permanently in Nepal for fifteen years. These men also face other restrictions including restrictions on employment and restrictions on the length of visas that they are able to obtain. Legislation stemming from the constitutional changes has not been finalised. The United States 2015 Human Rights Report for Nepal noted the ongoing difficulties faced by people whose citizenship was based on naturalization (rather than descent). However, endorsement from a husband is required for citizenship by descent for women, which this has been known to be refused by husbands (or their families, in the case of widowed women), for example in property disputes; a non-citizen cannot own property.
3.74 Women’s NGOs report that it is difficult to obtain a divorce in Nepal. Legal changes have made it possible for a woman to divorce her husband and still keep some of the property, and even to gain child custody rights. However, such court cases can be lengthy and expensive and it can take many months to obtain a divorce if the woman makes any kind of property or custody claims.
3.75 DFAT assesses that women in Nepal face high levels of societal and official discrimination and a moderate risk of violence. However, the experience of individual women varies. Women from poorer or lower-caste backgrounds experience a higher risk of discrimination and violence.
Children[61]
[61] DFAT report @ p.24
3.82 Nepal’s Civil Code prevents forced marriage and requires parental consent for marriage between 18 and 20 years of age. Marriage from 21 years of age is legal without parental consent. The marriage age for both boys and girls is the same under the new Criminal Code. Despite these provisions, early or forced marriage has continued due to a combination of lax law enforcement, religious beliefs, poverty and illiteracy. The practice is extensive in rural areas (such as the Terai region) and particularly high among minority, including Madhesi and Dalit, communities. NGOs and international organisations estimate that 37 per cent of girls are married before the age of 18 and ten per cent are married before the age of 15 years.
3.83 Customarily, girls in Nepal are discriminated against by their family members in most aspects of life including education, food and health care. The general attitude of rural and ethnic Nepalis is that since girls will have to one day leave the family and settle in their husbands’ homes, investment in their education, food, health and other development is a low priority.
Divorce
3.74 Women’s NGOs report that it is difficult to obtain a divorce in Nepal. Legal changes have made it possible for a woman to divorce her husband and still keep some of the property, and even to gain child custody rights. However, such court cases can be lengthy and expensive, and it can take many months to obtain a divorce if the woman makes any kind of property or custody claims
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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5H Meaning of refugee
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.
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5J Meaning of well-founded fear of persecution
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.
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.
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.
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.
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.
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
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.
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.
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Protection visas – criteria provided for by this Act
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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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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