2014748 (Refugee)

2014748 (Refugee) [2022] AATA 3642 (1 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Vikram Jeet Singh (MARN: 1572276)
CASE NUMBER:  2014748
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Mark O'Loughlin
DATE:1 August 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 August 2022 at 12:11pm

CATCHWORDS
REFUGEE – protection visa – Nepal – inability to repay creditors – harm from wife’s family and her first husband – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Nepal, applied for the visa on 30 January 2018. The delegate refused to grant the visa on the basis that the applicant has the right to enter and reside in India and has not taken all possible steps to avail himself of that right. The delegate found that therefore, due to the effect of s36(3) of the Act, Australia does not have protection obligations in respect of the applicant.
The applicant was represented in relation to the review.
On 17 February 2022 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. On 11 April 2022 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c).
s36(2)(b) and (c) relate to applicants who claim to be family members of protection visa holders. The applicant in this matter does not claim to be such a person.
The Tribunal is satisfied, and finds, that the applicant is not entitled to a protection visa under s36(2)(b) or (c).
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. This is called the “refugee criterion”.
The Tribunal has regard to the applicant’s passport and finds that the applicant is of Nepalese nationality.
A person who has a nationality is a refugee if they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether, based on what is accepted of the claims made expressly or arising on the evidence, the applicant is a person to whom Australia has protection obligations.
The Tribunal has relied on the delegate’s decision of 18 September 2020, the visa application, and the applicant’s interview with the department in making its decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Application Form
In the visa application of 30 January 2018, the applicant says that he was married [in] January 2013[1].
[1] Page 2 PVA at “Relationship Status”
He says that his wife had been married before and had a child[2]. He says because the marriage would not have been acceptable to his parents, he and his wife (and apparently her child) moved to [Village 1] for safety and security. He also says that they moved to hide her history from his parents.
[2] Ibid page 16.
The Tribunal notes that [Village 1] is about [number] kilometres north of Kathmandu and that the application at page 7 says that the applicant moved to [Village 1] on [date] January 2013 which was the time of the applicant’s marriage.
He says that in May 2016 his wife came to Australia on a student visa[3]. He stayed in Nepal.
[3] Ibid
He says [in] December 2016 he moved to Australia to support his wife. He also says she went back to Nepal in December 2016 “without my acknowledgement”[4]. This suggests that she returned to Nepal within about a week of him arriving in Australia.
[4] Ibid
He says that in Nepal her parents saw her passport which named him as her husband. He does not say how he knows this.
He says that unbeknown to him she had not divorced her first husband, although she told him she had.
He says that his wife’s parents and first husband searched for him on 3 January 2017 at his rented place in Nepal, intending to harm him physically. He does not say how he knows this.
He says that they announced that they will not leave him alone and will harm him physically with weapons next time they see him. He does not say to whom this announcement was made or how he heard about it.
He says that his parents found out that his in laws were looking for him after a few days. He says that he had not told his parents that his wife had been married before and they were disappointed and stopped providing him with financial support.
He does not say what his relationship with his parents was like before this.
Further, he does not say what level of financial support his parents were giving him, or why, or for how long they had been supporting him.
His application form says at page 13 that in Nepal he was employed as a [Occupation 1] [from] March 2012 [until] December 2016 (which is when he moved to Australia).
He says that he had borrowed $AUD30,000.00 to fund his wife’s study and if he returns without repaying it the lenders will come after him which will be a threat to his life. He does not provide any evidence of his borrowings. He does not say when he paid his wife’s course fees, what course the fees were for, or whether his wife studied the course.
He does not explain the terms of the loans or provide any corroboration of them having been made.
He says that his lenders will come after him and his life will be threatened. He also says the people who lent him money will put him into some form of custody as he cannot repay them immediately. He does not describe the type of custody or whether it is illegal.
He says that it will be social embarrassment, mental torture and emotional disturbances for him.
He does not have any recorded proof of threats against him and this means he cannot seek help from authorities.
He says that there is no safety in Nepal and no proper law and order in place. He also could not relocate inside Nepal because he is not strong financially. Further, it would be an embarrassment for him to return without having achieved anything in Australia.
He also says that it would be very easy for those people to locate him and harm him.
Departmental Interview
The applicant was interviewed by a representative of the Department on 25 August 2020.
His statement is summarised below.
He grew up in Kathmandu with his parents and an elder brother. His brother now lives in Australia and has been here for over 10 years.
He had been to India using the open border system. That was in 2009 when he did 3 years’ tertiary education there, studying [subject]. He left India in 2011.
He did not work in India.
He had a business in Nepal selling goods. He was self employed. He started that in 2012 and continued unto 2016. That was his only job. This is inconsistent with the statement in the application form that he worked as a [Occupation 1][5] and he worked supervising and maintaining [specified projects].
[5] PVA page 13
He said that he had started contacting his parents again in about July 2019 and has been in regular contact with them.
He said the most important reason he cannot return to Nepal is because he has lots of loans over his head.
He said he sold his businesses to come here. He said his wife was asking for money. He said suddenly they did not have a good relationship and she was asking for money. She said that if he did not give her money she would accuse him of domestic violence, which she did a few times.
It is not clear whether the relationship soured, and the threats (and reports of domestic violence) were made in Nepal or in Australia. The Tribunal observes that the applicant and his wife were both in Australia for only about a week.
He paid the fees for her course and 3 or 4 days later he got a letter saying his visa had been cancelled. Given that the visa was cancelled on 9 January 2018[6], a year after the applicant’s wife had returned to Nepal, it is unusual that he paid her course fees.
[6] Ibid page 19
He said that he came to Australia because his wife wanted to have a foreign degree so he had to come here to support her. This seems unusual if, as it appears, the relationship had soured to the point that she left within a few days.
He said they could have cleared the debts and paid for her course if they stayed together.
He said there are two reasons he can’t go back.
The first reason is the debt he has over his head and the difficulty he would have in re-starting in Nepal.
He said that he would have to take out another loan and won’t be able to do so unless he pays off his last one.
It would be embarrassing too because people would know that his wife left him and they would comment on that.
He also said that he knew his wife had been married but did not know that she was not divorced.
He said that his wife’s first husband has threatened him with violence if he returns to Nepal. He said his wife’s first husband threatened to chop his legs.
The applicant agreed his wife had committed bigamy when she married him.
He said that his wife had been living with her mother when they met and told him that she was divorced, which he believed. He went against his parents to marry her but did not know she had lied to him about the divorce.
He also said he married her without her parents’ consent.
He said that he could not go to the police in Nepal for protection from the threatened violence because he is not a big celebrity.
He said he could move to a different part of Nepal but it is not easy to start a new life. He would need more money.
He said he could go to India and find some work. He said that he would not consider that for a couple of years (the interview was about 2 years ago). He said he would need to find work in India and he does not know about that.
He also said that he is not trying to be in Australia for ever and would be happy to return if he could pay off his debts.
He said if he goes back it will be hopeless. It will lead him to suicide, but he would happily go back if he could have more time in Australia first. He did not suggest that he has any medical condition or predisposition to suicide.
He was told that at the interview consideration would be given to any further information that he submits. He did not provide further information.
Claims
The applicant claims that Australia has protection obligations to him for 3 reasons.
They are;
·          that he faces humiliation and risk of physical harm in Nepal because he cannot repay his creditors;
·     that he faces physical harm from his wife’s family (including her first husband); and
·     he is not able to avoid harm by relocating.
The applicant says that to return to Nepal would be social embarrassment, mental torture and emotional disturbances for him[7]. He also says it will be hopeless and will lead him to suicide[8]. These predictions flow from the harm the applicant says he faces and do not require consideration independent of those claims.
Harm From Inability to Repay Creditors
[7] Application form page 17 about .7
[8] Departmental interview.
The applicant described this as his most important claim. He says he borrowed money, the equivalent of $AUD30,000.00, to fund his wife’s study in Australia.
He does not say when he borrowed the money.
He does not say from whom he borrowed it.
He does not give the term of the loan or loans, when he was expected to make payments, what the rate of interest was or give any other details of his borrowings.
He says that he had been working in Nepal for some time and had sold his business and other assets to fund the move to Australia but does not say how much the move cost in total or how much his wife’s course fees were.
He makes conflicting statements about the work he was doing in Nepal before he left for Australia. He does not say how much of the move and of the course fees he was able to fund from the sale of his business and from savings.
He does not say why he had to borrow the money nor does he fully explain his financial circumstances in Nepal.
On the basis of the evidence before it the Tribunal is not satisfied that the applicant borrowed money in Nepal.
He says that he paid for his wife’s course fees in January 2018, a year after she had left him and returned to Nepal. He provided the department with a screenshot suggesting that he may have made a payment of $1,200.00 to Equals International, a tertiary education institution in Adelaide, in January 2018.
He does not say why he made this payment despite the fact that his wife had left him.
He does not say why he made this payment for his wife, despite the alleged threats of violence against him by her family.
He does not say how she had enrolled or whether she had returned from Nepal to Australia and was proposing to actually attend the course.
He does not say how he could afford to pay those fees and whether he had money left over from his borrowings or whether he had saved from his earnings in Australia.
He does not say how he had access to course information in sufficient detail to be able to ascertain the amount of fees and their due date and make payment accordingly.
He claims that if he returns to Nepal he will be detained and put into “some form” of custody by the people who lent him the money. The Tribunal does not accept that the applicant borrowed money in Nepal and is not satisfied that the applicant faces a real risk or a real chance of harm for this reason.
The applicant claims he will suffer humiliation in the community if he returns without being able to repay his loans. He says that he will suffer embarrassment, mental torture and emotional disturbances. He does not say why or how.
The Tribunal is not satisfied that the applicant’s fears about experiencing harm at the hands of his creditors are well founded.
As set out above, the Tribunal is not satisfied that the applicant actually borrowed money as he claims.
The Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm by reason of inability to repay creditors if he is returned to Nepal.
The Tribunal is not satisfied that the applicant’s claims about his inability to repay his debt satisfy the refugee criterion at s36(2)(a) or the complementary protection criterion at s36(2)(aa).
Harm From His Wife’s Family and First Husband
The applicant discussed these matters in both his application form and in his departmental interview.
He says that his wife’s family were angry when they saw him named on her passport as her husband. He says that they were angry because they had not approved the marriage and because she was not yet divorced.
The applicant does not say why his wife’s first husband was angry although it was presumably because he was not divorced from applicant’s wife when the applicant married her.
The applicant says that his wife’s family and first husband announced publicly that they would harm him physically with weapons
He does not say how many members of his wife’s family threatened him, who they were or whether he believes they will be likely or able to carry out any threats. He does not say whether the threats have been repeated, or when they were last made.
He does not say what form the threats took and he does not say whether any corroborative evidence of the threats is available.
He said in his interview that his wife’s first husband had threatened to chop his legs if he returned to Nepal. He has not provided any detail of these threats.
The applicant has not availed himself of the opportunities he had to provide further information about the threats from his wife’s family and first husband. He has asked the Tribunal to consider his application on the basis of the evidence already before it.
On the basis of the evidence before it, the Tribunal is not satisfied that the applicant has been threatened by his wife’s family or first husband or that he faces a real chance of serious harm or a real risk of significant harm from his wife’s family or first husband.
The Tribunal is not satisfied that the applicant’s claims about fear of harm at the hands of his wife’s family or first husband satisfy the refugee criterion at s36(2)(a) or the complementary protection criterion at s36(2)(aa).
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).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

100. As the Tribunal has already found that the applicant does not satisfy s36(2)(b) or (c), the applicant does not satisfy the criterion in s 36(2).

decision
101. The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark O'Loughlin
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 3642

1 August 2022

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