2012606 (Refugee)

[2022] AATA 1739

2012606 (Refugee) [2022] AATA 1739 (29 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2012606

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Genevieve Hamilton

DATE:29 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 29 April 2022 at 3:37pm

CATCHWORDS
REFUGEE – protection visa – Nepal – ethnic group and caste minority in home region – fear of harm from groups and officials – threats to father while applicants in Australia – general crime and violence – applied for protection after application for student visa invalid – young child born in Australia – country information – applicant’s ethnic group and caste dominant in whole country – risks to population in general, not applicants personally – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), r 2.08

CASE
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first and second named applicants applied for the visas on 19 July 2017.  The third named applicant, their child, was subsequently born and added to the application pursuant to regulation 2.08.  The first named applicant is hereafter known as the applicant.  The second is the applicant’s wife. 

3. The delegate refused to grant the visas on 30 July 2020.  The applicants applied for review on 7 August 2020 and uploaded a copy of the Delegate’s decision with the review application.

   CRITERIA FOR A PROTECTION VISA

4. Under s 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.

5. 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.

6. Under s 36(3) with some exceptions Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia. 

   Refugee

7. 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). 

8. 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.

9. 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.

10. 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)).

11. 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). 

12. 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). 

13. 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

14. 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.

15. 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 countr, 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

16. 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

17. In his protection visa application the applicant said he left Nepal and came to Australia for higher education in 2007.  He was born in Saptari, Nepal on [Date 1] and is a Nepalese citizen.  His ethnic group is Baishya (Vaishya – a Nepalese caste).  He speakes, reads and writes English and Nepali.  He was married [in] December 2011 in Nepal.  His parents and brother are Nepalese citizens living in Nepal and he is in contact with them by phone.  His last arrival in Australia was [in] January 2012, on a student visa (after his marriage).  He also went back to Nepal in February-March 2009.  He travels on a Nepalese passport.  In Nepal he lived in [City 1], Saptari.  He has had various jobs in Australia since 2008.  Before that he was a student in Nepal supported by his family.  He completed a Bachelor degree in [Subject 1] in Kathmandu in 2003, and three further courses in Australia culminating in a Master of [Subject 2] in July 2015.

18. The applicant said he lodged a student visa application in June 2017, but the application was invalid.  He is from the Terai region, where the vast majority of people are Madhesi.  He might be abducted, tortured and prosecuted (which the Tribunal read as persecuted) if he returned to Nepal because the cadres of the political parties and terrorist groups operating in the region have been targeting people of Pahadi origin who are in the minority.  Also, because he has been in Australia they might kidnap him for ransom thinking that he had earned money. 

19. The applicant said he had experienced harm in his country.  When he went to Nepal to marry in 2011 he had to go to the registration office secretly because he could have been abducted due to being Pahadi and because he had been in Australia for several years.  He did not seek help from police and local administration because they do not take such issues seriously and also because he intended to return to Australia shortly thereafter.  In 2008 his father got a call from a leader of a Terai-based terrorist organisation asking for a large sum of money.  If people refuse such demands they are often abducted and killed.  Another reason for not reporting such matters to the police is that the Madhesi group could attack while the police are not around.  Asked whether he tried to relocate the applicant said he returned to Australia immediately. 

20. The applicant said the region had been in violent political unrest for ten years (since 2007).  Huge numbers of Pahadi minority people have left their homes fearing for their lives.  There needed to be a political solution agreed between the Madhesi and the Government in Kathmandu.  Until then the Pahadi minority will be facing threats, assault and mistreatment.  Once the situation returned to normal he would return to his country.  The applicant said he could not relocate within Nepal because all his properties including his house are in Saptari.  If he was to relocate he would need a house, a job, land to grow crops, and so on. 

21. The applicant’s wife stated that she was born in Butwal, Province 5, Nepal, on [Date 2].  She is a Nepalese citizen.  She speaks, reads and writes Nepali and English.  Her ethnic group is Vaishya.  She travels on a Nepalese passport.  Her parents and siblings are Nepalese citizens living in Nepal and she is in contact with them weekly.  She lived in her home town in Rupandehi for the year after her marriage, finishing her Bachelor of [Subject 3] degree in October and arriving in Australia in November 2012.  She had been working in [work sector] in NSW for three years as at the date of making the protection application. 

22. The applicant’s wife said that she faced the same problems as her husband as he is from the Saptari region.  She experienced harm in that she registered her marriage secretly because of the environment around there.  She did not seek help from police or local authorities because they do not take such issues seriously.  The region had been suffering violent political unrest for a decade; threats, assault and mistreatment would continue until there was a political solution.  Asked if she moved elsewhere to seek safety, the applicant’s wife said she went back to her parents’ house and continued her studies.  In the future she could not relocate because her husband’s properties including their house are in Saptari. 

23. In a supporting letter the applicant outlined his Australian study history since arriving in Australia in November 2007.  He said that he and his wife thought that their subclass 485 visa expired on 22 July 2017.  But it expired on 22 June.  They lodged a further student visa application on 26 June after the weekend, but the application was invalid due to their substantive visa having expired. 

24. The applicant said the Terai region had been political volatile since the resolution of the Maoist conflict in 2005.  The Madhesi felt that their rights were deprived in the new constitution and that the Pahadi were favoured.  There was an indefinite strike which turned into a violent uprising targeting the Pahadi minority and government establishments.  In due course political progress resumed but terrorist organisations in the region took advantage of this to amplify their activities.  Pahadi origin people were the main victims.  The situation worsened after the new constitution in 2015.  Madhesi again felt they were underrepresented and there was another indefinite strike.  It soon became violent and claimed the lives of more than 50 people over 4 months, and about a dozen security personnel.  The protesters also blockaded the Nepal India border which led to acute supply shortages.  Although the Nepalese Government agreed to address the Madhesi demands which stopped the strike, the Madhesi and Pahadi continued to be divided.  Local elections had been delayed in because Madhesi didn’t want them held. 

25. The applicant said that when he went to Nepal to get married the environment was very tense in Terai.  ”They were after our lives”.  His dad had been getting calls from Madhesi parties and their affiliates for money.  They often threatened to kill the applicant on return.  They even threatened to burn down their house.  The marriage was conducted in Butwal in secret with only close relatives aware of it; his own city was not safe because of his Pahadi origin and because he had been 5 years in Australia.  They only stayed one night in Saptari to register the marriage, and went to Kathmandu the next day.  The applicant identified that terrorist groups and Madhesi party cadres were the source of the threats. 

26. No claims were made specifically on behalf of the child applicant. 

27. The applicant submitted the following country information:

    ·News article in Kathmandu Post, 9 July 2020: At least two people died and 18 others went missing as floods ravaged through Barahbise Municipality in Sindhupalchok district in Nepal. Fourteen houses were also swept away.

    ·News article in Kathmandu Post, 20 July 2020: 200 people in a village in Saptari will be evacuated following floods in that village.

    ·Several other news articles pertaining to flooding in Nepal’s Saptari district have been included. These articles were published in Al Jazeera.

    ·Article in Nepali times, 25 November 2019: There has been a dramatic increase in complaints of polygamy, dowry, beatings, rape and murder of women in Province 2 of Nepal (which includes Saptari).

    ·Several other news articles pertaining to gender based violence in Nepal have been included. These articles were published by Reuters and the Kathmandu Post.

    ·News article in the Diplomat, 17 June 2020: Protests have started in Nepal due to the government’s perceived poor handling of the Corona virus pandemic. Cases have increased since tens of thousands of migrant workers began returning to Nepal from India.

    ·News article in Kathmandu Post, 29 June 2020: Various districts in Terrai region have had Corona virus managed poorly and have seen a lack of health care for those affected.

    ·Several other news articles pertaining to the prevalence of Covid-19 and poor management of the virus in Nepal (including Saptari) have been included. These articles were published by My Republica, The Diplomat, the Kathmandu Post, The Wire, and East Asia Forum.

    ·News article in Nepali Times, 22 November 2019 re violence against women: 40 cases of acid attacks against women have been recorded annually.

    ·Several other news articles pertaining to crime and general violence in Nepal (including Saptari) have been included. These articles were published by Kathmandu Post and WikiLeaks.
    
    

    ·Several articles dated June 2020 about the border dispute between India and Nepal (thehindu.com, BBC.com, and the Council on Foreign Relations).
    
    

    ·Several Kathmandu Post articles about Rajbiraj in July 2020: corruption in aid delivery, and militant Madhesi cadres disruption of election education and vandalising government offices.
    
    

    ·Articles dated from 2008 in The New Humanitarian referring to extortion carried out by Mahhesi militants, and the prevalence of small arms and armed groups making civilians vulnerable to such attacks.
    
    

    ·A publication of the Public Library of US Diplomacy from 2007, about violence committed by different Maoist Madhesi factions.
    
    

    ·Peace Brigades International – Nepal, newsletter dated June 2012 about the human rights situation in Siraha and Saptari districts in the Eastern Terai.  It states that the security situation has improved since the Madhes uprising in 2007 and that clashes between ethnic groups are nowadays extremely rare.  Many Pahadis had left the districts for safer locations, some of the Madhesi grievances had been addressed, tensions persisted between and within the two groups including from caste discrimination, but they were not on a large scale. The open border with India allowed armed groups and criminal gangs to operate with relative impunity due to deficient security resources.  In 2011 Saptari had the highest number of abductions in Nepal. 

28. The applicant and his wife were interviewed by the Department on 15 July 2020.  The applicant said he had lived in [City 1] all his life before coming to Australia and his family are still there.  He said the Madhesi “often threaten us, kill kidnap and extort from us and rape our daughters”.  They would do that if they think he has made lots of money.  He did not even stay there one day to get a marriage certificate.  Asked whether he himself had experienced harm, he said that after he graduated in the capital city he stayed with friends and relatives.  After he came to Australia the situation became worse.  Asked again whether he himself had experienced harm he said that he had been here since 2007.  But he did confront these things when he went back to Nepal.  “We were excommunicated and had to fight for our rights”.  The applicant said a leader made a call to his father one night in 2009 or 2010 demanding ransom/donations.  Someone from his community was kidnapped.  They think the applicant is rich so they asked his father for money (he didn’t pay).  They called his father many times for donations/ransom.  Officials had to be bribed to register his marriage. 

29. The Case Officer put to the applicant that Terai is multi ethnic and that the applicant’s group is considered elite and to have the backing of the government.  The applicant replied that bandhs (strikes) are common, there were no local elections, there was fighting all the time, ti was a backward province and they blame us for being educated and having government jobs.  The Case Officer asked why the applicant could not move to another part of Nepal.  The applicant said he had to live where the family property is.  He was not familiar with other provinces.  Relocation is expensive and he would need some capital.  The Case Officer said that the applicant had successfully relocated to Tasmania, and that he had studied in Kathmandu and had friends and relatives away from his home.  The Case Officer noted that the applicant had not applied for protection until 2017.  The applicant said at that time it was getting worse in his country, with terrorism, threats and ransoms, the Madhesi not accepting the new constitution, there was no future for himself, his wife and child.  His family advised him not to come home.  It would make trouble for his family as well.  There was also the covid situation, which was a big risk because of the poor health system limited by corruption.  He cannot set up a new life over there.

30. Asked what would happen to him, the applicant said his life was in danger from Madhesi groups and political officials.  No one follows rules there.  He is always threatened by Madhesi, even now he and his family are threatened.  Because they think he makes a lot of money they might kidnap his daughter.  And because he is Pahadi.  That is the way they think.  If he does not give them money they will do anything.  An official’s son was killed because they didn’t pay ransom.  The Case Officer said there was no evidence that people returning from overseas are targeted.  The applicant referred to the general state of lawlessness in his state, and the porous border with Bihar state in India which is also uneducated with a lot of criminals.  This led to a further discussion about whether the applicants could relocate to India, where they had a right to enter pursuant to the bilateral Peace and Friendship Treaty.   

1. The applicant’s wife said she could not return to Nepal because her husband has political problems with the Madhesi.  There were threats against him and his family.  Under their culture, she and her daughter have to live with her husband.  The Case Officer said this might not apply if their life were in danger.  The applicant’s wife said her family are poor farmers and she cannot burden them.  Asked if she was ever harmed in Nepal the applicant’s wife said when she went there just to register the marriage she felt uncomfortable about the way they were looked at suspiciously.  They didn’t stay there, they went to stay with different family members as guests (a tradition following marriage), and to Kathmandu.  They couldn’t live in Kathmandu though, it is expensive and they do not have any savings.  Nepal had a high number of Covid cases and natural disasters.  Asked the reason for not applying sooner the applicant’s wife said they would have preferred not to apply for protection but when the other visa application was ruled invalid their hands were tied because they could not return to Nepal.  Her husband had suffered from seizures and depression (the applicant however said he was not on any medication).  There were political problems in Nepal generally which were worse than before.  There was a border dispute with India.  In the Terai there were death threats, people will think they are rich and if we don’t give them money our live is at risk.  Crime is everywhere, rape and murders.  They need to protect their child.  There followed a discussion of moving to India. 

2. A hearing of the Tribunal was held on 8 February 2022.  The applicant’s wife was not sworn in as she had said she did not want to give evidence.  The Tribunal began by outlining the criteria for protection visas.  The applicant promptly said that he did not need any kind of a protection visa.  The only reason he applied for a protection visa was because his student visa application was invalid due to being inadvertently lodged late.  The applicant’s wife interjected, to say that the protection visa claims were true, but it was the only visa they could apply for out of time.  They could not return to Nepal because of the situation there where the applicant’s home is.  Their aim was not to get PR through protection but they wanted a visa to remain here for a while. 

3. The Tribunal reiterated that its role was to review the protection application which was an application for a permanent visa, and noted that the applicant had already stated that the did not require protection.  The applicant’s wife told the applicant to remain calm and say whether he could go back to Nepal or not.  The Tribunal requested that the applicant’s wife, refrain from encouraging the applicant to change his evidence.  The Tribunal asked the applicant why he could not go back to Nepal.  The applicant said because of the reasons in his application.  The Tribunal asked the applicant if he wanted to say anything more about this, and he said he did not wish to do so. 

4. The Tribunal observed that the applicant was from a group regarded as relatively privileged in his area and that the country information did not indicate he faced a real chance of serious harm.  The applicant maintained that there would be serious harm.  The Tribunal observed that the applicant had not apparently been harmed in the past.  The applicant declined to comment on this. 

5. The applicant’s wife interjected again and the Tribunal asked her not to give evidence unless she was sworn in.  She did not ask to be sworn in, however she continued to speak to the applicant while he was giving evidence.  The applicant stressed that he had been here many years and wished to be granted a visa, that he needs to stay here and support their child. The Tribunal observed that the applicant likely could obtain employment in his field (farm work) in Nepal although not as well paid as in Australia.   

6. The Tribunal asked if the applicant’s family in Nepal were alright.  The applicant said they were not, because of the problem in his referred to in the application.  The Tribunal noted the applicant had made references to threats against his family, but that the references were in the Tribunal’s view somewhat vague and it didn’t seem there were credible reasons why his family would be targeted in particular.  The applicant said it was hard to express how life was over there.  Last time he was in Nepal they made a money threat, kidnapping or something like that. 

7. The applicant said he wanted to live in Australia, it was as much his country as Nepal is, his daughter was born here, his wife is not happy about going back to Nepal, he did not know how to survive in Nepal. 

   Country information

8. The DFAT Country Information Report on Nepal dated 1 March 2019 states as follows:

   Madhesi

   3.12 The Madhesi are a group of people of Indian origin that live in the Terai. Many have continuing strong socio-cultural and ethnic links across the border with India. The term ‘Madhesi’ refers specifically to non-tribal, caste Hindus of Indian origin that live in the Terai. Many Madhesis consider those living in the Terai who do not fit this definition (including Muslims, Tharus, Pahadis, and indigenous groups who predated Madhesi immigration) to be ‘foreigners’. Less than 50 per cent of the Terai population are Madhesi, and many people from other parts of Nepal have moved to the region seeking jobs.

   3.13 Madhesis comprise around 20 per cent of Nepal's population but are underrepresented in politics, public service jobs, and the military. Hindi-speaking Indian Madhesis were historically denied citizenship certificates (and therefore also land and access to government benefits) under the Citizenship Act of 1964 and the 1990 Constitution owing to Nepali language requirements. The citizenship law was amended in 2006 to allow people born in Nepal before 1990 and those residing there permanently to acquire Nepali citizenship, but this law contained a short window period for Madhesis to claim citizenship that closed in November 2008.

   3.14 Efforts by the government to introduce compulsory Nepali language in the region have been seen by some Madhesis as a further attempt to discriminate against them. Economic and political favouritism (by way of land allocations) towards the upper caste Pahadis (hill-dwelling Hindus) was introduced under the ‘Panchayat’ system (1962 – 1990, see Recent History). This, as well as allegations of economic exploitation of the resource-rich Madhes region, have exacerbated feelings of discrimination by the Madhesis resulting in decades of political activism and tension between Madhesis and members of other ethnic minorities living in the Terai region. The extent to which such sentiments are shared throughout the entire community is unclear.

   3.15 A pro-Madhes autonomy group (the United Democratic Madhesi Front – UDMF) was formed in 2007. The group has signed two peace agreements with the Nepali government with the principal demand being the ‘liberation’ of the Terai region and the creation of a single autonomous unit called Madhes in a new federal system for Nepal. The group has also demanded greater representation in political, military and economic affairs, often at the exclusion of other ethnic groups such as the Tharu in the western regions of the Terai. Following a period of negotiations, some Madhesi aligned to political parties and participated in the 2017 election.

   3.16 DFAT assesses that Madhesis in the Terai experience moderate official discrimination because of on-going difficulties in obtaining citizenship, which impacts on their ability to access government services. The 2015 Constitution was amended in early 2016 partly in response to Madhesi demands around political representation. Violence in the region remains sporadic, as is evidenced by the protests of late 2015 and early 2016, when upwards of 40 people are reported to have been killed.

   Private Sector/Business community

   3.87 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.

   FINDINGS AND REASONS

9. Based on the information in their applications and the child applicant’s birth certificate the Tribunal finds that the applicants are Nepalese citizens. 

10. The applicant described the history of ethnic tension and the general security situation in the Terai region accurately and provided considerable country information about it. The country information considered together indicates that there is still an element of political activism and communal tension because of the perceived discrimination against Madhesi, and that sporadic political violence still occurs despite efforts to meet Madhesi demands through the Constitution. Many Pahedis left the Terai during the height of the conflict. Saptari also has a high crime rate in general in part because of the open border with India. What the information doesn’t indicate is that Madhesi are targeting Pahedis for ethnic reasons, i.e. that there is direct communal violence.

11. The Tribunal is not satisfied that the applicant or his family have been directly harmed by Madhesi terrorists or political parties.  The Tribunal gave the applicant every chance to detail his claims during the hearing.  Although he claimed that he and his family had been threatened many times, this was put in terms that the Tribunal found unconvincingly vague.  Consistent with the country information about the prevalence of extortion and forced donations, the Tribunal accepts that the applicant’s father was has faced money demands but it does not accept that this was to do with the applicant being in Australia or that it was attended by a risk of serious harm to the applicant or his family. 

12. The Tribunal does not accept there was anything usual in the process by which the applicants married or registered their marriage when he went back to Nepal.  It is not clear why registering a marriage at night would make any difference to his security, or that having to bribe officials was unusual or was attended by a risk of the applicants being harmed. 

13. The applicant’s wife shared the applicant’s claims and did not claim to be at risk for any separate reason.  She said she felt uncomfortable visiting Saptari but this was not persuasive of a case that that she had any apprehension of serious harm. 

14. Having considered all the evidence, the Tribunal is not satisfied that the applicants face a real chance of serious harm from Madhesi. 

15. The applicant submitted country information about violence against women in Nepal, but in so far as this makes a claim that the applicant’s wife or girl child in particular face serious harm based on being members of a particular social group, the Tribunal finds this to be speculative rather than a real chance.

16. Based on the evidence before it, the Tribunal is not satisfied that the applicants face a real chance of serious harm for reasons of ethnicity or any other reason.  They do not have a genuine or a well-founded fear of persecution as required by s 5J(1).  The Tribunal finds that the applicants are not refugees as defined in s 5H(1).

17. Having concluded that the applicants do not meet the refugee criterion, the Tribunal considered whether they meet the complementary protection criterion.  The Tribunal has not accepted that the applicants face a real chance of serious harm in relation to the claims discussed above, similarly the Tribunal is not satisfied that there is a real risk that they will suffer significant harm in relation to those claims. 

18. The Tribunal accepts that there is a risk to the applicants in relation to the covid and floods, but this does not amount to the types of deliberate harm envisaged in the complementary protection provisions.  The Tribunal acknowledges that the Terai is a high crime area however the risk of violent crime is not one faced by the applicants personally, but affects the population in general.

19. Accordingly the Tribunal is not satisfied that there are substantial grounds to believe that there is a real risk that the applicants will suffer significant harm on return to Nepal within the meaning of the complementary protection provisions.   

    CONCLUSION

20. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

    DECISION

21. The Tribunal affirms the decision not to grant the applicants protection visas.

    Genevieve Hamilton
    Member