2007534 (Refugee)

[2023] AATA 3529

2007534 (Refugee) [2023] AATA 3529 (11 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007534

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Jessica Henderson

DATE:11 August 2023

PLACE OF DECISION:  Perth

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

The Tribunal otherwise remits the matter for reconsideration with the following directions:

(i)that the second named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the third named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the third named applicant.

Statement made on 11 August 2023 at 4:52pm

CATCHWORDS

REFUGEE – Protection Visa –Nepal – primary applicant has become an Australian citizen – a victim of domestic violence – suffering health problems (both physical and mental) as a result of the abuse – third applicant’s mental health conditions – third applicant is the de facto partner of the second applicant – a member of the same family unit as the second applicant – membership of the particular social group – primary care-giver fathers with disabled partners – decision in relation to the first applicant affirmed – decision in relation to the second and third named applicant under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 48, 65, 499

Migration Regulations 1994, r 2.08, Schedule 2

CASES

AMA15 v MIBP [2015] FCA 1424
SZGIZ v MIAC (2013) 212 FCR 235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 27 May 2015 by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The relevant application for protection visas was made on 16 May 2014 for the primary applicant, who was born in Australia, and for his parents, the second and third applicants, who are Nepalese citizens.

3. The applicants appeared before the Tribunal on 12 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

   BACKGROUND

4. The second and third applicant arrived separately in Australia in 2008 on student visas. 

5. The third applicant made a protection visa application in February 2011, based solely on refugee criteria.  The harm that she claimed to fear was said to flow from her political activity in Nepal.  That protection visa application was unsuccessful, as was a request for Ministerial intervention.  She is precluded from applying for a further protection visa on those refugee grounds.  However, she is still able to raise complementary protection grounds and still eligible to apply as a member of the same family unit as a person granted the same class of visa.

6. The second applicant lodged an application for a further student visa in March 2010, which was unsuccessful.  He also sought Ministerial intervention, without success.  He had not, prior to the application under review, made an application for a protection visa. 

7. The second and third applicants have been in a relationship since some time in 2011.  They identify as being in a de facto relationship.  The third applicant is still married to her former husband, who she believes is in Nepal.  She says that they have been separated since 2009.  The first applicant was born to the second and third applicants after their arrival in Australia.  The application under review is his first protection visa application. The Tribunal has been provided with a birth certificate showing that the second and third applicant have another child, a son, who was born in Australia on [date]. No relevant decision has been made by the Department with respect to that child, and the Tribunal has no jurisdiction to consider any claims that the younger child may have.

   Procedural history

8. The Delegate’s decision made on 27 May 2015 was previously reviewed by the Tribunal (differently constituted).  The Tribunal considered the first applicant’s claim and the third applicant’s claim insofar as it related to complementary protection, and also in her capacity as a member of the first applicant’s family unit.  The Tribunal affirmed the delegate’s decision not to grant the protection visa to the appellants.

9. The applicants sought review of the Tribunal decision by the Federal Circuit Court.[1] The Federal Circuit Court affirmed the Tribunal’s decision. 

   [1] [Deleted].

10. The applicants appealed from that decision to the Federal Court of Australia.   By orders dated 24 March 2020 the Federal Court remitted the matter back to the Tribunal for reconsideration.[2]  The error identified in the Tribunal’s reasoning was that “the Tribunal should have considered the particular fears as articulated on behalf of the child, assessed whether there was evidence to support them, considered the individual circumstances of the child and considered the circumstances of the country to which he would return.”[3] Her Honour went on to say “the Tribunal’s failure to engage with the claims or undertake the qualitative task required to assess the nature and effect of the identified feared harm comprised a constructive failure on the part of the Tribunal to carry out its statutory task, and so comprised jurisdictional error.”

    [2] [Deleted].

    [3] [68]

    RELEVANT LAW

11. Absent statutory provisions providing otherwise, an application is determined in accordance with the law as it stood at the time of the application.  However, whether the relevant criteria are met is determined according to the facts as they stand at the time of the determination.

12. The law as it stood at the time of the application is set out below.

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

    Refugee criterion

14. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

15. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

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

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

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

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

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

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

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

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

    Complementary protection criterion

24. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).

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

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

    Member of the same family unit

27. Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.

28. The Tribunal accepts that the second and third applicants are in a de facto relationship and are the parents of the first applicant.  All three applicants are members of the same family unit.

    Mandatory considerations

29. 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 – FIRST APPLICANT

30. Under s 65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.

31. Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is a non-citizen. Indeed, the object of the Act is to regulate the presence in Australia of non-citizens, and visas cannot be granted to Australian citizens (see s 4 and s 29 of the Act). The issue in this case in relation to the primary applicant is whether the primary applicant is now an Australian citizen.

32. On 2 February 2023 the applicants provided the Tribunal with a completed pre-hearing attendance form.  That form identified that the primary applicant has become an Australian citizen.  It attached his Australian Citizenship certificate showing that he acquired Australian citizenship on [date] 2022.

33. On 9 February 2023 the Tribunal wrote to the applicants in the following terms:

    At the time the review application was lodged, all three review applicants were noncitizens and the application was considered to be a Part 7 reviewable decision.

    In conducting the review, we have identified relevant information that Master [name] is no longer a non-citizen. The Tribunal has information from the Department of Home Affairs that he became an Australian citizenship on his 10th birthday, [date] 2022. On 2 February 2023, you provided the Tribunal with a copy of his birth certificate and Australian Citizenship Certificate confirming he had been granted Australian Citizenship.

    This information is relevant to the review because as he is now an Australian citizen, he is unable to satisfy the Protection visa criteria, which refers to non-citizens.

    Under subsection 65(1) of the Migration Act 1958 (the Act), a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.

    Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is a non-citizen. This is consistent with the objective of the Act, which is to regulate the presence in Australia of noncitizens.

    As the Tribunal has information that he can no longer satisfy criteria for the grant of a Protection visa, the Tribunal may no longer have jurisdiction to review this application.

    You are invited to give comments on or respond to the above information in writing.

34. The applicants replied to the Tribunal by email dated 23 February 2023 in the following terms:

    It is true that [their son] has automatically acquired his Australian Citizenship…

35. The Tribunal is satisfied on the evidence before it that the primary applicant is now an Australian citizen.

36. It follows that the applicant does not satisfy the requirements of s 36(2) and cannot be granted a protection visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE – SECOND AND THIRD APPLICANTS

37. Both the second and third applicants press their own claims, independent of their relationship with the first applicant.  The Tribunal has considered each of their claims separately and has also considered the risk posed to them cumulatively.

    Third applicant’s claims

    Mental and physical issues

38. There is a wealth of medical evidence before the Tribunal relating to the physical and mental health of the third applicant who has been consulting a counsellor for many years. The Tribunal as previously constituted accepted on the medical evidence and on observation during hearings that the second named applicant suffers from physical and mental ill health.  That is consistent with the observations of the Tribunal during the hearing in June 2023 and with the updated medical evidence provided for the third applicant.  There is no basis for the Tribunal to upset its previous findings.

    Prior marriage and current de facto relationship

39. The previously constituted Tribunal considered whether it was feasible for the mother to divorce her husband and marry the father of her children, and then proceeded on the basis that the mother would not be able to divorce him and marry the father in the reasonably foreseeable future (at [44]).

40. The Tribunal then considered the status of de facto relationships in Nepal and found that, although there might be family and social disapproval of a de facto relationship, such disapproval would not comprise serious harm nor amount to significant harm as defined in s 36(2A).

    Marriage and de facto relationships

41. The third applicant’s evidence during the hearing on 12 June 2023 was that she had entered into an arranged marriage in Nepal, in the course of which she was subjected to violence.  The worst violence occurred after she and her husband travelled to Australia, where she didn’t have friends or family and didn’t speak the local language. 

42. She says that she was a victim of domestic violence.  She further says that she did not understand the extent of the domestic violence herself until she started talking to counsellors.  When she tries to recount her history there are so many incidents of abuse that she remembers that she expressed concern that her story sounds inconsistent – she remembers and recounts different incidents each time she is asked to recall an incident of violence in her marriage.

43. Amongst other violent incidents, the third applicant’s husband punched her repeatedly in the stomach.  She now suffers from [Medical condition 1] in the region.  The pain in her back is also likely due to his assaults.

44. Although it has been around 14 years since the third applicant has seen her husband she says that he is always in the back of her mind because they are still married, and in Nepal that means he still exercises authority over her life.  That is consistent with the information in the DFAT Report for Nepal, which makes it clear that police in Nepal do not register complaints by wives about their husbands.[4]

    [4] Department of Foreign Affairs and Trade (DFAT) Report for Nepal 2019 [3.64] (DFAT Report)

1. The Tribunal accepts that the third applicant has been a victim of domestic abuse, and that the aftermath of abuse still dominates her life in a significant way.  She remains fearful of her husband taking control of her again either directly or peripherally/coercively.

2. The Tribunal asked the third applicant why she thinks that her husband would be interested in pursuing her and harming her when they haven’t been in contact for 14 years.  She said that her parents are still in touch with her husband, even though they know the reason for the separation.  Her brother, who does not know the reason for the separation, still hounds her about being separated.  She said that it is likely that her husband will believe that she and the second applicant are very rich because they have been living in Australia for many years.  She thinks her husband will consider it worth trying to get money out of her or the third applicant and will assert his marital rights over her as leverage.  That is plausible, on the information available to the Tribunal.

3. The second applicant says, and the Country Information indicates, that notwithstanding domestic violence it is very difficult for women to obtain a divorce in Nepal.[5]  However, the article 'Divorce Process in Nepal (2080) – All the latest provisions' suggests that in the second applicant’s circumstances divorce would be not only possible but might potentially have occurred already, automatically or on her husband’s application.[6]  The Tribunal put the gravamen of this article to the third applicant during the hearing and asked if there was anything that she wanted to say about it.  She did not make any substantial comments in response.  On the basis of the information contained in the article the Tribunal is satisfied that it would be possible for the third applicant to obtain a divorce if she returned to Nepal.

   [5] DFAT Report for Nepal [3.74]

   [6] Mero Adalat, 11 May 2023

4. The third applicant says that if she returned to Nepal she would need to be involved in politics.  She recounted the history of her father’s involvement in politics with considerable pride and said that he had been so proud when she became involved herself.  However, for the reasons that follow, the Tribunal does not consider that there is a real chance that the third applicant will be involved in politics on a significant level should she return to Nepal.

   Third applicant’s health issues

5. On 23 May 2023 the second applicant wrote to the Tribunal providing medical evidence in relation to the third applicant.  In the extensive covering letter (May 2023 Submissions), the second applicant described the third applicant as having a “very long history of chronic pain and medical conditions.” 

6. The May 2023 Submissions attached multiple documents including a letter to Dr [A] from Dr [B] [dated] 10 October 2022, detailing the extent of the third applicant’s [Medical condition 1], as well as discharge summaries dated 5 November 2021, 17 October 2020 and 18 May 2019, describing her previous surgery. It is clear from the records that third applicant has had four major surgeries since 2017 and is due a fifth.  Those operations include a caesarean section during the birth of the primary applicant, and three [Medical condition 1] repairs.  She is on the waiting list for a fourth [Medical condition 1] repair.  She has an ongoing [Medical condition 1] which has been treated (and continues to be treated) with proscription opioids. As at September 2022 the defect was [deleted].  Her pain management is described by the second applicant as “a very big challenge”.

7. The second applicant made limited comments about the third applicant’s mental health in the May 2023 Submissions.  The submissions attached a letter from Dr [C] titled [Medical] Letter/Certificate.  It is undated but says that the third applicant is unfit for work in the period 1 September 2021 to 1 March 2022.  In it Dr [C] says that the third applicant has been her patient since 2016, and she confirms a diagnosis of Complex Post Traumatic Stress Disorder with Major Depression and Panic Disorder, with a secondary diagnosis of Chronic Pain Syndrome.  The diagnosis is based on what Dr [C] describes as a “well established past history of severe domestic violence and trauma”.  Importantly, Dr [C] says that the third applicant is “unable to maintain care of her two small children without assistance” and that she suffers from “complex interconnection with PTSD and pain syndrome”.

8. Dr [C] is known to the Tribunal.  She is a consultant psychiatrist who, in addition to her private practice, works in a refugee trauma clinic and has worked with people seeking protection in Australia for at least 15 years of her professional experience. The Tribunal gives weight to her written opinion.

9. The submissions also attached a letter dated 14 November 2022 from [name], counsellor [confirming] that as of that date the third applicant had been attending [clinic] for regular sessions since 28 May 2014.  Ongoing counselling was recommended by the author.  Suicidal ideation was noted in the third applicant.

10. The third applicant says that there is a very significant stigma associated with mental health problems in Nepal and she has difficulty dealing with the extent of her own mental health problems. That is consistent with the Country Information for Nepal.[7]  The Tribunal does not draw any adverse inference from the third applicant’s apparent inability to describe what appears from Dr [C] to be the extent of her mental health problems to the Tribunal.

    [7] DFAT Report for Nepal [2.24] and [2.25]

11. The Tribunal considers it unlikely, given the third applicant’s struggle with ordinary daily living activities, that it would be possible for her to be significantly engaged in politics in any meaningful way.

    Summary of the Tribunal’s findings with respect to the third applicant

12. The Tribunal finds as follows:

    a.The third applicant is a victim of domestic abuse at the hands of her husband;

    b.She hasn’t seen her husband for 14 years, but is still suffering health problems (both physical and mental) as a result of the abuse;

    c.The third applicant is still married to her husband, but a divorce is available to her notwithstanding that the process may be difficult;

    d.There is a real chance that the third applicant’s husband will try to assert marital rights over her and/or put barriers in the way to her obtaining a divorce if she returns to Nepal, in order to extort money;

    e.The third applicant has been diagnosed with Complex Post Traumatic Stress Disorder with Major Depression and Panic Disorder, with a secondary diagnosis of Chronic Pain Syndrome for which she both requires and is undergoing counselling.

    f.The third applicant has a significant [Medical condition 1] which has failed to respond to three [Medical condition 1] repairs and requires a fourth.  The [Medical condition 1] may be a direct result of past violence from her husband.

    g.The third applicant will struggle to engage in normal daily living activities for the foreseeable future.

    Further protection visa applications

13. A bar is imposed by s 48A on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of the visa application made by the applicants on 16 May 2014, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.

14. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criteria in s.36(2)(a). In SZRNJ v MIBP6 the Court extended the principle established in SZGIZ v MIAC, finding that even where the Tribunal had considered complementary protection criteria in refusing an application post 24 March 2012 (as here with respect to the third applicant), a further application would not be prevented if the original application was not based on complementary protection.

15. The effect of the authorities is that the Tribunal as presently constituted can consider the third applicant’s claims pursuant to the complementary protection criteria, and as a family member of the other applicants.  The Tribunal cannot consider the third applicant’s claims to the extent that they duplicate the earlier protection visa application.

16. The third applicant’s history of domestic violence and consequential health issues predated her original protection visa application.  She has not departed Australia since the determination of that application.  It is not open to the Tribunal to consider whether the third applicant meets the refugee criteria on the basis of the above findings.

    Complimentary protection criteria

17. The Tribunal has considered whether the above findings constitute substantial grounds for believing that as a necessary and foreseeable consequence of removal to Nepal there is a real risk of significant harm to the third applicant.

18. There is no suggestion that the third applicant will be arbitrarily deprived of her life if she returns to Nepal, nor that she will be subjected to the death penalty.

19. The Tribunal does not consider it likely that any threat from the third applicant’s husband would rise to the level of torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. Given that the third applicant has two children with her current partner, who is a long term committed partner, there does not appear to the Tribunal to be a real risk that the third applicant’s family will pressure her to return to her husband.  There is no evidence on which the Tribunal could base such a finding, given the lack of open or forthright correspondence between the third applicant and her family.

20. There does appear to be a real risk that the third applicant’s immediate family might refuse to offer the third applicant any assistance with her children or household activities.  That does not, in the Tribunal’s view, amount to significant harm.

21. The Tribunal has considered whether significant harm might flow from the third applicant’s mental health conditions.  The DFAT Country Information Report for Nepal contains the following information about mental health treatment in Nepal:

    2.24 Mental health facilities are poor and availability throughout the country is not consistent. Decades of conflict and natural disasters have left many Nepali people vulnerable to mental health disorders. Stigma about mental health conditions prevents identification of conditions and access to treatment. Stigma is particularly associated with mental health disorders that involve psychosis, such as schizophrenia.

    2.25 Victims of torture and conflict may have access to government provided facilities which are supposed to be free, but in practice charge money. Drugs that are used to treat people with mental health problems may not be in line with current international medical practice, or not available at all.

22. Unavailability of treatment is not, in itself, significant harm, and there does not appear to be any suggestion that sufferers of mental ill health in Nepal are at risk of forced treatment that might comprise significant harm, such as shock therapy or the use of restraints.

23. The Tribunal is not satisfied that the third applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa).

24. However, the Tribunal is satisfied that the third applicant is the de facto partner of the second applicant and is a member of the same family unit as the second applicant for the purposes of s 36(2)(b)(i). As such, the fate of her application depends on the outcome of the second applicant’s application.

    Second applicant’s claims

25. The second applicant has not previously raised any personal protection claims, although the following comment was made in the previous Tribunal decision:

    I note that even though aspects of the evidence given by the second and third named applicants suggested that the third named applicant may face some degree of harm in Nepal (largely due to familial and societal attitudes toward his de facto relationship) he repeatedly and consistently reiterated in writing and at the hearing that he was not making protection claims of his own, that he was not seeking protection on the basis that he faced harm in Nepal, and that he was only seeking a protection visa on the basis that he was a member of the same family unit as the other two applicants.

26. He told this Tribunal at the hearing in June 2023 that he feared returning to Nepal with responsibility for two children and a wife who is incapable of providing the home care that is expected of mothers in Nepal.  He says that it will be impossible for him to find work in Nepal that allows him to continue to be the primary carer for his sons, and that society in Nepal is still so intolerant of mothers suffering mental health which prevents them caring for their children that he will not receive any support for a carer role whilst he is in a relationship with her – instead he will be expected to insist that she recover from her health problems and if she does not then he will be expected to separate from her and marry a good mother for his sons.

27. It is clear from the country information above that treatment options for the second applicant’s mental health problems are limited in Nepal.  The Tribunal has proceeded on the basis that the third applicant’s mental health issues will, at best, continue at their current level for the foreseeable future if she returns to Nepal.  There is a real chance that they will get worse.

28. The Tribunal accepts that the second applicant has been the primary care-provider for his two children whilst the third applicant has been unable to perform that role by herself. The Tribunal also accepts that his role is complicated by his son’s health issues, and his de facto wife’s various conditions. 

29. The second applicant wrote to the Tribunal after he was unable to attend a hearing, in the following terms:

    I am writing this explanation to clarify about what happened today. I also would like to present my sincere apology for the inconvenience caused to everyone.

    [Master A]’s Health

    …

    The doctor had a look at him and believe [Master A] has viral infection. His tonsils appeared inflamed and throat has some redness as well. You should be able to confirm these with the doctor if needed. He has advised to continue with Panadol and Nurofen for the time being. If [Master A] doesn’t get better in next 2 days, we should do a follow up.

    [Ms A]’s Health

    …

    Apart from transmission of flu from [Master A], [Ms A] has very long history of chronic pain and medical conditions. Since our last Tribunal hearing in 2017, [Ms A] has had 4 big surgeries and is due to have one more very soon. She has had c-section during [Master A]’s birth and 3 [Medical condition 1] repairs [at] about one a year interval. Her last [Medical condition 1] repair has failed again and is on wait list for surgery. Her pain never went away. So she has been on opioid medication [for] a very long time and has to use it on a regular basis. She also takes other prescriptions regularly for other reasons.

    Her [Medical condition 1] defect has been growing in size following every surgery. CT scan done in September 2022 had shown [deleted] and it would have only grown in size till now which is making her feel more pain and sometimes causes pain attack. It can only get worse till it is fixed by surgery. We have been having follow ups with surgeons every 3 months and they have suggested ways to minimise it and ways to handle pain attacks.

    Sneezing and coughing makes her pain worse as it directly puts pressure in her abdominal walls. So even common flu can affect her severely.

    Her pain management has been a very big challenge and has impacted our family in so many different ways. [Ms A] is also restricted from heavy lifting and when [Master A] gets unwell, he tends to get clingy, which is not unusual for his age. It is not unreasonable to consider not leaving [Master A] with [Ms A] when she herself is unwell. [Ms A] herself needs care most of the time. I am always mindful of that and try to stay around all the time.

30. The Tribunal subsequently questioned the second applicant at the hearing and is satisfied that the second applicant not only takes responsibility for his two sons and his wife but does so to the extent that he is exhausted and desperate for some respite.

31. The Tribunal finds that he is a member of a particular social group comprising “primary care-giver fathers with disabled partners”. 

32. The Tribunal must determine, with very little information or evidence, whether a male primary carer with a disabled wife is unlikely to be prevented from earning a subsistence level income. The DFAT Report for Nepal does not provide any information about the reversal of traditional gender carer roles, or the treatment of men who wish to be primary caregivers for their children. 

33. The Tribunal has not been able to locate any country information relevant to its considerations on this point.  The logical conclusion is that male primary caregivers are still so rare in Nepal that there is no data for examination.

34. The DFAT Report does deal with ‘women’ as a group of interest at [3.61] – [3.75]. The Tribunal notes the following, in particular:

    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.

    …

    3.69 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.

35. The Tribunal takes from that information that reversal of traditional roles is dealt with harshly by the Nepalese community.  The Tribunal’s findings with respect to the third applicant’s family mean that there is unlikely to be any assistance from them.  The second applicant does not expect assistance from his family.

36. The second applicant gave compelling evidence that he would be unable to earn a subsistence level income whilst looking after his wife and two children in Nepal.  The Tribunal has no reason, aside from the matters below, to doubt that evidence.

    New claims or evidence

1. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence.  If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

2. The concerns that the second applicant has raised before this Tribunal are said to flow from the findings of the previously constituted Tribunal, which were not displaced by the Federal Court judgment. The Tribunal notes the finding at [80] of the Federal Court that there was not “an articulated claim that the ability of the parents to support the child would be affected by the medical conditions that affect the mother.”  That is an essential part of the claim now raised by the second applicant. 

3. The Tribunal accepts that the second applicant’s analysis of his own situation has been affected by reading the Federal Court’s analysis, in circumstances where he had not previously had the benefit of legal advice. It is also relevant that the second applicant now has two children to provide for, and two children that has to ensure are cared for during any period that he is absent from the home working. His wife’s condition has deteriorated.

4. The Tribunal does not draw any adverse inference because of the second applicant’s new claims and evidence.

5. The Tribunal finds that the second applicant fears not being able to find and retain employment sufficient to support a mentally and physically disabled adult and two infant children if he returns to Nepal, which responsibilities fall to him. If he returns to Nepal the Tribunal finds that there is a real chance that the second applicant will provide for his wife and children as his first priority and is likely to end up starving himself and causing himself very severe physical and mental harm in the process. That is serious harm for the purpose of the Act and it flows from his membership of the identified social group. No government protection appears to be available to men in his situation.

6. For the reasons given above the Tribunal is satisfied that the second applicant is a person in respect of whom Australia has protection obligations. Therefore the second applicant satisfies the criterion set out in s 36(2)(a).

7. It follows that, as a member of the same family unit, the third applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

   DECISION

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

9. The Tribunal otherwise remits the matter for reconsideration with the following directions:

   a.that the second named applicant satisfies s 36(2)(a) of the Migration Act; and

   b.that the third named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.

   Jessica Henderson
   Member