2008396 (Refugee)
[2022] AATA 2266
•24 May 2022
2008396 (Refugee) [2022] AATA 2266 (24 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2008396
COUNTRY OF REFERENCE: Nepal
MEMBER:Genevieve Hamilton
DATE:24 May 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 24 May 2022 at 2:53pm
CATCHWORDS
REFUGEE – protection visa – Nepal – religion – Christianity – failure to attend scheduled hearing – request for postponement of hearing declined – having an Australian child – perceived to be wealthy – delay in seeking protection – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33Any 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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 27 September 2017. The delegate refused to grant the visa on 28 April 2020. The applicant lodged a review application with the Tribunal on 18 May 2020 and provided the Tribunal with a copy of the Delegate’s decision.
CRITERIA FOR A PROTECTION VISA
Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
The criteria for a protection visa are relevantly set out in s 36 of the Act. An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.
Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.
Refugee
Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).
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.
The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).
A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).
A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).
In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s.5J(6)).
Complementary Protection
If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.
Under s 36(2B) Australia does not have complementary protection obligations 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 they will suffer significant harm;
·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or
·the risk is one faced by the population of the country generally and not by the applicant personally.
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.
CLAIMS AND EVIDENCE
In his protection visa application the applicant said his religion was Christian. He said he feared for his life because of being a Christian, and because of having an Australian child, and because people think he has a lot of money. He said he had sought help from the authorities but got no help. He had tried to move but there were no safe places. He had been told by friends and families that his life was under threat.
It is noted in the Delegate’s decision, of which the applicant submitted a copy with his review application, that the applicant came to Australia as a student in 2008 and later lodged a partner application. The partner visa was refused (the relationship broke down), this decision was affirmed by the AAT (differently constituted) and the applicant sought Ministerial intervention however the Minister declined to intervene and this outcome was notified to the applicant on 14 September 2017.
The Tribunal invited the applicant to attend a hearing scheduled for 1.30 pm on 13 May 2022. The Tribunal did not receive a response to the hearing invitation. The applicant’s representative attended the Tribunal in time for the start of the hearing. However the applicant himself did not appear. At 1.29 the applicant’s representative emailed the Registry requesting a postponement due to the applicant having car trouble. He attached a screenshot of two messages sent to him by the applicant stating that he was having car trouble and would not make it to Melbourne until about 4-5 pm. It is not clear what time these messages were sent.
Given that the applicant was based in [City 1] and would have had to set off by car early in the morning, and the Tribunal was not notified of the applicant’s difficulties until the hearing was due to commence, the Tribunal requested a detailed timeline of the day’s events with supporting evidence. The representative replied that the applicant broke down near [Town 1] and had to be towed back to [City 1]. He stated that he had received the applicant’s messages during the morning. He did not provide verification that the messages were sent in the morning or a satisfactory explanation of why he did not inform the Tribunal of the potential delay, particularly a delay of several hours which would have rendered a postponement necessary.
With the representative’s reply is an unsigned mechanic invoice for towing of a car belonging to a [company] and driven by the applicant, due to need for a radiator replacement. It does not state at what time the breakdown was reported, what time the vehicle was towed or what information was given to the applicant as to how long the repair would take. The breakdown occurred at [location] (which is between [Town 1] and [City 1]).
In these circumstances the Tribunal is not satisfied that the applicant was en route to the Tribunal hearing. The Tribunal has therefore decided not to postpone and reschedule the hearing.
Country information
The current DFAT Country Information Repot for Nepal (1 March 2019) includes the following information:
Religion
The 2015 Constitution states Nepal is a secular state, signalling a major departure from the Hindu monarchy. It guarantees freedom of religion. Religious tolerance is broadly practiced and there are no restrictions on the sale or distribution of religious material. Nepal celebrates public holidays for numerous religious faiths in addition to secular and political anniversaries. Nepal’s 2015 Constitution prohibits one person from converting another.
…
According to the 2011 Population Census, the most recent available, approximately 81 per cent of Nepalis are Hindu, nine per cent are Buddhist, four per cent are Muslim and 1.4 per cent are Christian. …
…
Overall, DFAT assesses that people of different religions generally live side-by-side without incident in a richly multi-ethnic and multi-religious society. Incidents of tensions between groups, and discrimination against them, has been reported, mostly in localised events.
Christians
Christianity was introduced into Nepal in the 18th century, but Christian missions to Nepal were not common until the 1950s. The US Department of State estimated that 1.4 per cent of the population is Christian, the vast majority of whom are Protestant. Nepal has dozens of Christian missionary hospitals, welfare organisations, and schools and, in general, Christians report that they do not face government interference in operating these institutions. However, a number of Christian groups report that they keep their activities discreet. In particular, Christian groups that are not well-established can face difficulty registering as religious organisations and, as a result, can find it difficult to own land. Christians also complain that they have been unable to acquire land for cemeteries.
Proselytising is banned in Nepal. Eight Christians were charged with this offence after giving out a pamphlet about Jesus Christ in a Christian school. Christian leaders reported that foreign missionaries involved in proselytising are generally not expelled from the country, but that nonetheless they attempt to keep their activities, and their ties to foreign Christian churches and charities, discreet.
Small scale terrorist events have affected Christians in Nepal, including improvised explosive devices being detonated on the grounds of three churches in Jhapa district at the same time that protests against the new constitution were occurring in 2015. An arson attack on a Catholic cathedral occurred in 2017, causing significant damage to the building but not causing injuries to the priests living there. The attacks were claimed by Hindu nationalists.
Conversion to Christianity has increased since the 1950s. More than 90 per cent of Nepal’s Christians are from marginalised groups such as indigenous communities (such as Chepangs and Santal) or Dalits, for whom Christianity provides an escape from the caste system. There are also anecdotal reports of occasional social tension because activities of (particularly foreign) missionaries to induce conversion through the provision of health, education, housing or employment opportunities to converts, which are perceived by some to be over-zealous.
DFAT assesses that Hindu citizens who convert to Christianity are publicly and safely able to do so, although they may experience low-level societal or family discrimination which may vary according to their personal and family circumstances.
…
Fear of Maoists
Communist parties won the 2017 elections in both the parliament and the provincial
assembly. The main far left parties, Communist Party Nepal (Unified Marxist-Leninist) CPNUML
and Communist Party Nepal (Maoist Center) merged in 2018.
…
While the two main Maoist parties have merged, the movement has a history of internal splits
and the ideology of the two main groups, while merged, is inconsistent. Historical claims of
abuses during the insurgency remain unresolved.
Maoists have the potential to control the national agenda without resorting to violence. In
general, DFAT assesses that political opponents of Maoists do not face violence, unless they
participate in violent political demonstrations, in which case they face no greater threat of
violence than other participants.
…Private Sector/Business Community
There are widespread reports of threats against businesses throughout Nepal. Threats such as coercion, extortion and forced donations, as well as kidnappings or coercion to join political parties, have been identified as the most common forms of mistreatment. However, credible sources told DFAT that the most common occurrence, forced donation, was generally seen as part of ‘doing business’ in Nepal and was regularly encountered. The practice reflects the intensely political nature of Nepali society and the inability of Nepali political parties to formally and directly raise funds to support their activities.
…Consistent with high rates of corruption generally, people in business may be required to pay bribes to officials to gain registration and operate in a highly bureaucratic environment. DFAT further assesses that people involved in business, including small businesses, are subject to corrupt practices that are consistent with other areas of life in Nepal, including by citizens not engaged in small business.
FINDINGS AND REASONS
Based on the information in his protection application, the Tribunal finds that the applicant is a national of Nepal.
With regard to the applicant’s claim of being a Christian, it is noted in the Delegate’s decision that the applicant had difficulty answering questions about Christianity. There is insufficient information before the Tribunal about the applicant’s religious beliefs. The Tribunal is therefore not satisfied that the applicant is a Christian. Moreover, based on the country information, the Tribunal is not satisfied that there is a real chance of serious harm to a Nepalese person who converts to Christianity. The Tribunal is not satisfied that the applicant faces a real chance of serious harm due to religion.
With regard to the applicant’s claim that he is at risk of harm due to having an Australian child, there is insufficient information before the Tribunal as to the nature of this risk. The Tribunal does not have any information that Nepalese with foreign parentage children are targeted for that reason. The Tribunal is therefore not satisfied that having an Australian child entails a real chance of serious harm to the applicant.
The applicant claimed that he will be at risk of harm because people think he has a lot of money, and at the interview he specified this risk came either from gangsters or Maoists. Based on the country information, the Tribunal finds that the chance of serious harm to the applicant in this scenario is no more than speculative. Although bribery, extortion and forced political donation are common, the country information does not support a contention that this amounts to a real chance of serious harm such a threat to life or liberty, significant physical harassment or ill treatment, significant economic hardship that threatens capacity to subsist, or denial of access to basic services or capacity to earn a livelihood.
The applicant claimed in his protection application that he had sought help from the authorities but got no help. He had tried to move but there were no safe places. He had been told by friends and families that his life was under threat. However, other than these vague written claims, there is insufficient information before the Tribunal that the applicant was specifically threatened or harmed, requiring him to seek help from the authorities or try to relocate. The Tribunal therefore is not satisfied that the applicant was under any specific threat. This conclusion is reinforced by the fact that the applicant only lodged a protection visa application after several years of living in Australia, which tends to indicate he did not feel threatened.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Act, and therefore finds that he is not a refugee within the meaning of the Act.
Having concluded that the applicant does not meet the refugee criterion, the Tribunal considered the complementary protection provisions. As the Tribunal has not accepted the factual basis of the applicant’s claims, the Tribunal is not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk that they will suffer significant harm
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Genevieve Hamilton
Member
Key Legal Topics
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Appeal
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