2005899 (Refugee)
[2024] AATA 1144
•8 January 2024
2005899 (Refugee) [2024] AATA 1144 (8 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Walson Mathew (MARN: 1460591)
CASE NUMBER: 2005899
COUNTRY OF REFERENCE: Nepal
MEMBER:Rosa Gagliardi
DATE:8 January 2024
PLACE OF DECISION: Australian Capital Territory
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 08 January 2024 at 2:22pm
CATCHWORDS
REFUGEE – protection visa – Nepal – imputed political opinion – pro-monarchist – anti-Maoist – particular social group – businessmen threatened and targeted at the point of death for payment of extorted money – perceived landed monarchist – right to enter and reside in a third country – Indo-Nepal Treaty of Peace and Friendship – Nepali migrant workers in low level jobs – exploitative and inhuman conditions – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
MIMAC v SZRHU [2013] FCAFC [2013] FCAFC 91
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155 at 169 70
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZRHU v Minister for Immigration & Anor [2012] FMCA 1013
SZRTC v MIAC (2014) FCR 570
SZTOX v MIBP [2015] FCAFC 77Any 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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 March 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Nepal, applied for the visa on 20 September 2017. The delegate refused to grant the visa on the basis that the decision-maker in the first instance considered that the applicant could relocate from Nepal to India under the Indo-Nepalese Treaty of Peace and Friendship, ending the inquiry thus.
The applicant appeared before the Tribunal on 5 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 (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, 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 has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if the applicant was returned to Nepal now or in the reasonably foreseeable future, he would be persecuted for one of those reasons and/or whether he would suffer serious harm. In the alternative, the Tribunal is required to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk that the applicant will suffer significant harm as defined in s.36(2A) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Claims at the time of application
The applicant in his application was asked to write why he left his home country Nepal and the applicant responded, “I came for a visit initially, to visit my sister and family, however my intention was to find safety for my well-being. I asked my sister to call me to Australia without revealing my original intentions. I left Nepal because I was being threatened by a group of criminals and outlaws”.
Asked what he thought would happen to him if he returned to Nepal, the applicant wrote that he had a fear of persecution, physical harm causing serious injuries, and kidnapping. Recently there have been incidents involving these criminals who kidnapped and murdered three of the applicant’s colleagues. The applicant also advanced that when he was in Nepal, he was threatened but he left due to fear. Since he left Nepal, there were increased numbers of people being threatened and murdered.
Asked to provide details of the harm the applicant claims to have feared he wrote, “Threatened by kidnappers but I left before they could take any further action against me”.
Queried as to whether the applicant had sought help within his country after experiencing harm, the applicant wrote “Based on the past experiences I did not feel safe to go to the police because some who were threatened previously and reported to police were murdered. I feared it would be the same fate for me, if I reported it to police, so I did not report, but left the country”.
Asked if he had moved or tried to move to another part of Nepal, the applicant responded “no” because his family and properties were all in his hometown, and he could not leave there. However, he made his family secure and had assurance that they would be safe where they were.
The applicant was asked whether he thought he would be harmed or mistreated if he returned to his home country and he answered “yes”, “because of the threats in the past from the same group. These people were not caught but after they are caught and jailed, things may be different”.
Queried on whether the applicant thought that the authorities of his country can and will protect him if he goes back, the applicant indicated “no” and that the recent events had indicated that the authorities were not capable of protecting normal citizens from these kinds of illegal groups.
Asked if he thought he would be able to relocate within his country, the applicant responded, “Not under the current circumstances”.
The applicant also provided a statement submitted to the Department on 21 September 2017, stating in the main:
·He was born in Nepal and belonged to a middle-class farmer family
·He grew up between Dang and Salyan district of Nepal. While he was growing up, there was a Maoist insurgency, and he could not finish his studies as they were displaced from one district to another.
·Dang, Salyna and Rolpa were the core places in Nepal where the Maoists started their fights.
·Since the applicant shares the same surname ([Name 1]) with the former monarchy, he and his family are regarded as the monarch’s relatives.
·The applicant and his family were being targeted frequently and were threatened with kidnapping and persecution.
·There were several occasions when the applicant feared for his life, and he wished he could flee the country.
·His sister around that time was married and moved to Australia and settled there permanently.
·Political turmoil resulted in the toppling of the monarchy and establishment of democracy; however, things were the same for him and his family. The previous Maoist cadets who were now dependent on extortion and looting were still in full action.
·Even after the political situation settled, the applicant was still targeted and was always threatened that if he did not comply with their demands, he would be persecuted.
·The applicant looked for opportunities and started to run a business but was a target for donations and threats from the same group who were involved with the Maoists who had a problem with him.
·After two years the applicant had to close his business as he could not make a living after donating money to various groups.
·The applicant married and had children which made him more responsible towards supporting them.
·The applicant started another business in Kathmandu in partnership and it was running smoothly for a few years, and he was happy at the time.
·In 2016 the applicant received a call demanding money and was strongly threatened that if he did not pay the money he would be executed.
·The applicant went into hiding as he did not have the money to pay.
·That group found out where the applicant was hiding, however he was lucky enough to escape before they could get him.
·The applicant could not report the matter to the police as three of his colleagues were kidnapped and killed prior to experiencing similar events.
·The victims were found after a month, murdered in a remote jungle. These groups do not tend to harm the family, but their target had to either pay or die. The applicant was suffocating in that environment, fearing for his life, and not knowing what would happen.
·The applicant started looking for options and after considering that there wasn’t anything he could do to secure his safety from the worst consequences, the applicant asked his sister if he could come to Australia for a short visit without telling her his intentions and circumstances.
·The kidnappings and murder of his colleagues left the applicant in shock, and he felt helpless.
·The applicant did spend a few years in hiding in Nepal from that group of people, but they seem to know his whereabouts by different means, and it turns out that it is impossible to hide from them.
The applicant also submitted an email containing a statement from [Mr A] (currently in Australia) and signed on 26 November 2023 by a notary. The statement reads in the main:
I have been living in Australia since 2008 AD. I know very well [the applicant], whose house is in xxxx Dang. He is my good neighbour.
It is true that [the applicant] was doing business, because of his good economic status in the society, he was threatened by unknown persons and groups over the phone, asking for donations. At that time, [Mr B], businessman and proprietor of [Business 1], affiliated with to Federation of Nepalese Chamber of Commerce and Industry Dang branch, was missing since June 09, 2017 AD and was found dead on June 30, 2017, AD in Salyan district. Also, there was a situation where the then rebel Maoist Biplab group used to collect donations and threaten people with different political opinions and faiths. He had to stay in hiding situation for some time because they demanded donations from him and threatened to kill him if he did not give donation to them. He had repeatedly explained everything to me about how to get rid of such stress.
He came to Australia thinking it would be safer to leave the country than to hide and live in fear forever. I request the concerned authorities to provide necessary assistance to my colleague [the applicant] at the place where he is staying as the security threat is even greater when he returns to Nepal.
In a submission to the Tribunal dated 20 January 2020, the applicant’s representative argues among other things already claimed by the applicant, that the applicant believes that he was targeted because the communists viewed the royals as being wealthy. The applicant advised the representative that because he was well-known in his town and because of having the last name [Name 1], he was accused of giving information about the Maoists to the royal family.
The applicant’s representative referred to country information which shows that even after the monarchy was abolished after 2006, local people in Nepal’s rural areas continued to suffer from intimidation and extortion at the hands of former Maoist rebels. The rebels continued to demand monthly donations under the threat of violence.[1] Another report (2010) referred to by the applicant’s representative indicates that business owners were still being targeted for intimidation and extortion in the form of donations well after the Royal Family was deposed.[2]
[1] The New Humanitarian, Villagers suffering intimidation, extortion at the hands of Maoist, 3 May 2007, courtesy of the applicant’s representative.
[2] Utpal Parashar, In Nepal’s Maoist’s Dictionary Extortion Means Donation, Hindustan Times.com, 3 May 2010, In Nepal Maoists’ dictionary extortion means donation | World News - Hindustan Times. Courtesy of the applicant’s representative. In addition, there is reference to a bombing in 2016 of ten private schools being bombed because they refused to pay extortion money to former Maoists. Christopher Sharma, Maoists place bombs in ten private schools in Kathmandu, two arrested, 21 September 2016. AsiaNet.it, NEPAL Maoists place bombs in ten private schools in Kathmandu, two arrested (asianews.it).
The Tribunal at hearing advised that while the submission was thorough it had failed to address the issue of whether the applicant could relocate to India under the Indo-Nepal Treaty of Peace and Friendship and gave the representative and applicant additional time to provide further information.
The Tribunal asked the applicant at hearing about relocating to India which had a growing economy, and which could accommodate the applicant’s business skills. The applicant stated that currently in Australia he was a fishmonger and on a low wage and in India he could not survive and support his family undertaking such work. He stated that he was not very literate.
The applicant stated that the police in Nepal would not help him, and he had no confidence in them to deal with the extortion and serious harm he would face on return to Nepal. The extortion was clothed as donations for the Maoist cause. The applicant confirmed that the additional dimension of being perceived as an adherent of the Royal Family compounded his difficulties with the Maoists and their associated criminals. Having land also increased his profile as a target for the Maoist criminals he claimed.
After the hearing the applicant has provided the following information:
·A letter from the Chairman, [City 1] Chamber of Commerce and Industry, [City 1] Dang dated 4 July 2017 (Nepalese Calendar) referring to the incident of [Mr B], a businessman and proprietor who was affiliated with the Federation of Nepalese Chamber of Commerce and Industry Dang branch being found dead in Salyan district. The Chairman states that the applicant, a member of the [City 1] Chamber of Commerce, Dang, needed safety because he also was being threatened due to attempts to extract donations from him.
·A letter from the Ministry of Home Affairs, Government of Nepal, Temporary Police Post dated [date] November 2023 A.D (Nepalese calendar). The letter from the police assistant confirms that the applicant was in need of protection because he had received threats over the phone for donations.
·Letter from [Mr C], a neighbour and friend of the applicant, dated
24 November 2023 AD (Nepalese calendar). [Mr C] states that he had witnessed the applicant receiving threatening calls over his phone in Nepal relating to extraction of donations from the applicant. Accordingly, [Mr C] states that the applicant informed the Federation of Nepalese Chamber of Commerce, Dang Branch, and the police about the matter, after which time the applicant was required to go and live in Kathmandu for his safety.·Submission by the applicant’s representative arguing that the applicant can not relocate to India under the Indo-Nepal Treaty of Peace and Friendship 1950 because the applicant would continue to have a well-founded fear of persecution in India and would suffer significant harm there because he came from a particular social group of businesspeople and membership of a family for his connection to the [former monarchy]. The representative also argued that the applicant has a fear of Maoist groups who would target him in India as they did in Nepal.
·The applicant submitted an additional statement, arguing among other things, that there is a lot of anti-India feeling among the Nepalese people, especially among the Nepali citizens who live on the border with India. Because of this, even in India, Nepali citizens are viewed with suspicion. In addition, “Due to the unequal treaties between Nepal and India and due to the foreign trade that Nepal is doing with India with a large loss, there is a great hatred towards India in the business world…The relationship between Nepal and India may go down at any time”.
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal notes that the applicant applied for the protection visa on 20 September 2017 and that the applicant in recounting his narrative over a reasonably lengthy period has provided a consistent account about needing to move from Dang, his home area to Kathmandu and then leaving that area because he continued to receive threats.
The Tribunal does note that the applicant seemed somewhat inconsistent about whether he had sought the assistance of the police in Nepal, although the letter from the police would indicate that he did report the matter, but nothing further happened.
The Tribunal has also had regard to the supporting documentation which corroborates the applicant’s claims and appears to be verifiable. At hearing the applicant appeared to be credible witness and told his account in a straightforward and compelling manner.
For these reasons the Tribunal does not consider that it has any reason to discount the credibility of the applicant’s claims. The Tribunal’s task is to determine whether based on such claims he has a well-founded fear of persecution. The applicant claims that he fears returning to Nepal on account of his:
·Political/imputed opinion, being pro monarchist and therefore anti-Maoist.
·Membership of a particular social group (businessmen threatened and targeted at the point of death for payment of extorted money).
·Membership of a particular social group (perceived landed monarchist).
The country information shows that despite the Royal Family no longer being in power that the Maoist cause continues to exist in Nepal and that extortion and threats are a key tool to cause fear and harm. As recently as 2018, four persons were held on extortion charges in Pokhara for threatening and extorting money from various businesses. Police also initiated investigations on kidnapping charges and were planning to press charges of organised crime against the individuals.[3]
[3] ‘4 held on extortion charges in Pokhara’, 1 February 2018, The Kathmandu Post, 4 held on extortion charges in Pokhara (kathmandupost.com).
A Nepali Times article also refers to the Maoist activism in extorting money for their cause to install “scientific socialism” and that it is being done at a high level.[4] According to the Nepal Times:
The Nepal Communist Party Maoist led by Netra Bikram Chand (Biplav) has been sending letters to all rural municipalities of Province 5, demanding 2% of their development budgets. The letters claim to spend the money to install ‘scientific socialism as an alternative to parliamentary democracy.
Many local level elected representatives are said to have already paid up, some from their personal coffers, others using their development budget. In a public hearing in Rupandehi recently, a municipality chief admitted to having paid Rs50,000 to the Maoists.
The Biplav faction has been asking for three different types of donations: 2% of the development budget, up to Rs500,000 lump sum from the salaries of elected representatives, and a tender worth Rs10 million.
The party has also demanded 2% of the development budgets from six municipalities and two rural municipalities of Bardia. Party sources reveal that teachers and contractors have also been approached for donations.
Although the problem is rampant in Dang, officers there do not want to talk about it. “Some are giving what is asked, while others are trying to bargain it down.
Mim Bahadur Gharti Magar of Rolpa municipality said the Maoists demanded a month’s salary from him, and half the infrastructure budgets from other local governments.
Businesses in Banke are also being extorted. Said one trader, “We got a letter demanding money, it is sad that we are facing extortion and threats once again.”
[4] ‘Extortion in a federal state’, 1 March 2019, Extortion in a federal state | Nepali Times.
Another article dated 10 December 2020 refers to the private sector having expressed its concern over the growing threats for extortion collection that entrepreneurs have been facing in recent times.[5]
[5]
Notwithstanding the corroborative information that extortion in Nepal is a problem, the Tribunal is not satisfied that unless there are additional characteristics which raise the victim above the ordinary businessman, that the applicant would be owed protection on the basis of membership of a particular social group (businessmen threatened and targeted at the point of death for payment of extorted money). It is well established that a particular social group can not be made up of persons who suffer the same persecution:
The UNHCR’s position is as follows. Individuals who believe in or are perceived to believe in values and standards at odds with the social mores of the society in which they live may, in principle, constitute a “particular social group” within the meaning of Article 1A(2) of the 1951 Convention. Such persons do not always constitute a “particular social group”. In order to do so the values at stake must be of such a nature that the person concerned should not be required to renounce them.
…..
“Particular social group” means a group of people who share some characteristic which distinguishes them from society at large. That characteristic must be unchangeable, either because it is innate or otherwise impossible to change or because it would be wrong to require the individuals to change it. Thus, where a person holds beliefs or has values such that requiring them to renounce them would contravene their fundamental human rights, they may in principle be part of a particular social group made up of like-minded persons. It is important to appreciate that UNHCR’s position does not entail defining the particular social group by reference to the persecution suffered. Indeed, the UNHCR agrees with the conclusion of the Court of Appeal in the present cases that persecution alone cannot determine a group where none otherwise exists.
….[I]t is not the reaction to the behaviour of such persons which is the touchstone defining the group. However, the reaction may provide evidence in a particular case that a particular group exists.[6][6] “Membership of a particular social group”: Analysis and Proposed Conclusions, Background Paper for “Track Two” of the Global Consultations, T. Alexander Aleinikoff, Professor, Georgetown University Law Center, Secior Associate, Carnegie Endowment for International Peace, “MEMBERSHIP IN A PARTICULAR SOCIAL GROUP”: (unhcr.org).
This approach was supported in R. v. Immigration Appeal Tribunal, Ex part Shah, United Kingdom: Court of Appeal (England and Wales), 23 July 1997,[7] which referred to Mc Hugh J’s judgement regarding membership of a particular social group in A v Minister for Immigration and Ethnic Affairs [1998] INLR 1 [8]:
Allowing persecutory conduct of itself to define a particular social group would, in substance, permit the "particular social group" ground to take on the character of a safety-net. It would impermissibly weaken, if it did not destroy, the cumulative requirements of "fear of persecution", "for reasons of” and "membership of a particular social group" in the definition of "refugee". It would also effectively make the other four grounds superfluous.
[7] Available at: >
Hence, were the applicant relying on membership of the putative social group, businessmen threatened and targeted at the point of death for payment of extorted money, the application would fail. The Tribunal considers, however, that the applicant’s overlay characteristics set him apart from any such generic group, and that his imputed political opinion and that he is seen as a monarchist with land, means that there is a real chance that the applicant will suffer serious harm and that this chance goes beyond remote and is not far-fetched were he to return to Nepal now or in the reasonably foreseeable future.
Indo-Nepal Treaty of Peace and Friendship
The Tribunal is not aware as to whether the delegate also accepted the applicant’s claims. The fact the decision went straight to the issue of relocation under the Indo-Nepal Treaty of Peace and Friendship and found that the applicant had a right to enter and reside in Nepal, would indicate that the delegate did accept the applicant’s claims but considered that the applicant could relocate to India under the Treaty.
The Tribunal accepts that the Treaty allows for freedom of movement between the two countries and that the applicant would not necessarily be denied the right to enter India, although the Tribunal has some concerns about what occurs in practice and whether this is the case for every Nepalese person entering India.
RRT Research Response NPL31374, which is dated 23 February 2007, includes the following information about the rights of Nepalese citizens to enter and reside in India pursuant to the and 1950 Indo-Nepal Treaty of Peace and Friendship:
India and Nepal are signatory to the 1950 Treaty of Peace and Friendship. Under the Economics and Commerce section of the Treaty:
(Article 7) The two governments agree ‘to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature’ (Subedi, S.P. 2005, Dynamics of Foreign Policy and Law: A Study of Indo-Nepal Relations, Oxford University Press, New Delhi, pp. 4 – 5 1).
In the past it has been considered by the Department and in some cases by the Tribunal that Article 7 of the Treaty of itself guarantees Nepalis who have a well-founded fear of persecution of returning to their home country, that they can access India as they have a right to enter and reside in that country. It is argued that if applicants are owed protection in Nepal they can cross the border freely into India, even though as will be set out below, there is evidence that once in India, the Nepalis become vulnerable to labour and human rights abuses.[9]
[9] ‘India: Nepali migrants in need of protection’ 2005, Refugees International website, 25 July 2005,
The applicant’s representative in his latest submission argued that the applicant will continue to face harm from Maoist groups in India, but the Tribunal does not accept this contention as being one of many millions of people, the applicant would not be imputed with a political opinion regarding the monarchy or that he would be perceived as a landed monarchist. The Tribunal therefore turns to the issue of whether the applicant could relocate to Nepal under the Indo-Nepalese Treaty of Peace and Friendship.
The Tribunal has had regard to the decision of Smith FM in SZRHU v Minister for Immigration & Anor [2012] FMCA 1013, which refers to the right of Nepalis to enter and reside in India:
In many decisions concerning Nepalese refugee claimants, decision-makers and their sources of advice have stated that such a right is conferred by the 1950 Treaty of Peace and Friendship between India and Nepal, without providing a legal and factual analysis which supports that conclusion. I have explained over many years, without being overruled by higher judicial authority, that the language of the Treaty provides no evidence of such a right. In the present case, I must again consider whether a misreading of the Treaty has resulted in the invalidity of a Tribunal decision, which refused a protection visa to a national of Nepal without addressing his fears of persecution in Nepal.
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However, the Federal Court judgements…in my opinion, provide authority which remain binding upon me and the Tribunal, that the words in s.36(3) to “a right to enter and reside in…any country apart from Australia”…refer to more than a practical expectation of entry and residence in a safe third country, but require a finding of an existing and legally enforceable ‘right to enter and reside’ under the municipal laws of that country. That is, a right conferred on the person who is outside the third country and is currently recognised and enforceable by legal effect of the third country’s municipal laws and legal procedures.The bottom line of binding opinion in the superior courts, is in my opinion, that it is necessary for a decision-maker applying s.36(3) to address whether a prospect of entry and residence in a third country by the refugee claimant, whatever its practical degree of likelihood, has an existing foundation under the domestic law, such that the applicant can be said to have had at the time of determination of his Australian visa application, a ‘legally enforceable right’ in relation to the third country.[10]
[10]
In MIMAC v SZRHU [2013] FCAFC [2013] FCAFC 91 on appeal of Smith FM’s findings again remitted the decision of the Tribunal as it found that the decision maker may not limit the term to ‘enter and reside’ to a legally enforceable right and that “there is no reason to restrict the meaning of the word ‘right’ to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question, or to exclude from the meaning the notion of liberty or permission or privilege which does not give rise to any particular duty upon the state in question”.
The Full Federal Court in SZTOX v MIBP [2015] FCAFC 77 also overturned the reasoning that the ‘right to enter and reside’ must be a right that arises under the law of the country. In this decision it is argued that the source of the right might lie in an executive act, such as a Treaty, executive policy or other executive instrument.
49. From the Tribunal’s reading of the country information under the Indo-Nepalese Treaty of Peace and Friendship, Nepalis, unless they are of a national security concern have been permitted to enter India with few impediments, regardless of the lack of a legally enforceable right under statute law in India. Articles 6 and 7 stipulate India and Nepal will, in theory at least, give the same privileges of economic activity, employment, resident and ownership of property to each other’s nationals in their territory.
50. Nonetheless, the Tribunal has had regard to the applicant’s statements that he could not make a life in Nepal given his age which approaches beyond working age and which would relegate himself and his family to dire poverty. While the weight of judicial authority indicates that it is not necessary to have regard to the person’s ability to obtain employment or access to welfare benefits upon taking residence in a third country, some Federal court judges have, in obiter, referred to the term ‘reside’ to imply at least some minimum physical and economic conditions beyond merely being able to cross a border.
51. In, for example, SZRTC v MIAC (2014) FCR 570, Flick J observed in obiter that a right to cross a border into a third country but to thereafter remain in economic or physical conditions so devoid of any acceptable standard may be found to not constitute a right of the kind being described. This does not mean that there is any threshold about the acceptable level of comfort, but the right to enter and reside does connotate the ability to sustain oneself.
52. The applicant is not a professional and would likely have to resort to labouring work in Nepal. The Tribunal does not accept his contentions that he will be pursued all over India by his Maoist persecutors as argued by the applicant and his representative. The sheer size of the country would mean that there is a remote chance that the Maoist interested in the applicant in Nepal will pursue him in India. Nonetheless, the Tribunal is not convinced that the applicant will be free from serious harm if he is unable to obtain work and is relegated to the exploitative situations, he and his family would be subject to.
53. In a study by Raju Bhattrai, who examines the reality of the situation for Nepalis working in India, he writes[11]:
[11] ‘Open borders, closed citizenships: Nepali labor migrants in Delhi’, International migration, multi-local livelihoods and human security, Perspectives from Europe Asia and Africa, 30 and 31 August 2007, Institute of Social Studies. Open borders, closed citizenships: Nepali labor migrants in Delhi | HimalDoc (icimod.org).
Based on the analysis of the data, I argue that despite the legal rhetoric, the Indian state treats the labourers as rights-less, non-citizens. Their precarious economic and political position means that they do not risk themselves further by demanding citizenship and labor rights from the supposedly liberal Indian state but help grease its increasingly liberalizing economy as docile and cheap laborers.
…
The entire cycle of migration from the point of origin to the point of resettlement has not been chronicled. There is no count of the numbers pouring in through the open border. There is no record of where they come from, why they leave, where they go, how they survive, where they live or work, how they send money to the village, if at all, how they spend their money, family patterns, social and human rights violations experienced.
….The large section of Nepalese migrants is associated with the job of night security guard (nightwatchman) who moves from one street to another for whole night only with bamboo stick and whistle.
….
For fulfilling his duty of providing security for a whole month, a Nepali watchman is paid a mere RS 5 to 10 per household per month…Number of Nepalese watchmen have injured or even many time (been) brutally harassed (by) the police. Number of Nepalese watchmen have (been) injured or even died while saving the property of their owners. But after that, nobody takes care that injured, brave saver of their life and property. Many of these Nepali watchmen are losing their life in accident while they are doing their duty.There are lots of cases of harassment by the police and colony residents for whom they are working the whole night. Lots of the Nepali watchmen have led their lives performing their duty and many have been severely injured. Several Nepalese migrants have returned to their homeland after getting completely disabled. But none of them have got any compensation from any authority…
According to this article other sectors in which Nepalese work in India are as restaurant workers, agriculture, house servants and rickshaw pullers, in areas where exploitation is highly probable.[12] Domestic workers and sex workers are the most invisible migrants according to Raju Bhattrai. These migrants, mostly women, are untraceable after they arrive at the destination.[13] Further, many women and children are trafficked and sold in the sex industry and other hazardous and risky jobs in India. Their conditions are extremely exploitative and inhuman[14].
[12] Ibid.
[13] Ibid.
[14] Ibid.
The Tribunal finds therefore that the applicant does have a well-founded fear of persecution from Maoists in Nepal on account of:
·Political/imputed opinion, being pro monarchist and therefore anti-Maoist and
·Membership of a particular social group (perceived landed monarchist).
While it would appear that the applicant also has a right to enter and reside in Nepal temporarily and permanently, the working conditions for unskilled Nepalis in India are such that being a member of the particular social group, Nepali migrant workers in low level jobs, gives rise to a more than remote chance that he would suffer serious harm in India, in that he will be deprived of the ability to make a living and that in the course of his employment there is a real chance he could be subject of serious physical injury and even death.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Rosa Gagliardi
MemberATTACHMENT - 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.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
‘Entrepreneurs are being threatened to either pay extortion amount or close businesses: FNCCI’,
10 December 2020, myRepublica, Entrepreneurs are being threatened to either pay extortion amount or close businesses: FNCCI - myRepublica - The New York Times Partner, Latest news of Nepal in English, Latest News Articles (nagariknetwork.com).
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