2106264 (Refugee)

[2021] AATA 5240

2106264 (Refugee) [2021] AATA 5240 (16 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2106264

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Genevieve Hamilton

DATE:16 November 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 16 November 2021 at 2.07 pm

CATCHWORDS

REFUGEE – protection visa – Nepal – political opinion – monarchist – particular social group – businessman – extortion of business owners – fear of attacks by Maoists – death threats – state protection – return visits to Nepal – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

CASES

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 dependants.

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 refusing to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. As stated in the Delegate’s decision the applicant arrived in Australia [in] January 2018 (as the holder of a Tourist visa).  During 2018 he departed and returned to Australia twice on the same visa.  He applied for a protection visa on 10 October 2018.  

3. The delegate refused to grant the visa on 5 May 2021.  The applicant applied to the Tribunal for review on 11 May 2021.  He provided a copy of the Delegate’s decision to the Tribunal with his review application. 

   CRITERIA FOR A PROTECTION VISA

4. 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.

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)(a), (aa), (b), or (c).  Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on ‘complementary protection’ grounds, or be a member of the same family unit as such a person.

   Refugee

6. 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).  

7. 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.

8. 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.

9. 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)).

10. 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). 

11. 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). 

12. 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

13. If a person is found not to meet the refugee criterion in s.36(2)(a), they may still be a person to whom the Minister is satisfied 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(2)(aa).  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.

    CLAIMS AND EVIDENCE

14. In his protection visa application the applicant said he was born [[on date] in Gulmi, Nepal.  He is a Nepalese citizen, as are his parents (they live in Nepal).  He is not and has never been a citizen or national of any other country.  He states that he has no right to enter or reside in any other country.  He speaks, reads and writes Nepali and English.  His occupation is business.  He married in Nepal, [in] July 2000.  He is in contact with relatives in Nepal by phone once a week.  He left Nepal legally via Kathmandu airport [in] September 2018, travelling on his Nepalese passport issued in October 2007.  He entered Australia as a visitor.  His address in Nepal was [Address 1] (but he has also lived in Kathmandu).  [This town] is also the address of his wife and two sons.  He said he was the owner of a business in Kathmandu, and was currently unemployed.  He completed school leaving in [Village 1 in] Gulmi.  

15. The applicant said he was a businessman in Nepal and had to pay criminals including Maoists from time to time.  He is a supporter of the Monarchy.  It was impossible to run and protect business without paying the criminals.  He was in a situation where he would face financial hardship or death if he failed to cooperate with the Maoist criminals.  He refused to act according to their wish and received death threats.  After this he focused on his safety.  He could not seek protection in Nepal because no authorities could protect him from being harmed by his enemies.  He was forced to leave Nepal in search of protection.  Maoist criminals will kill him if he returns to Nepal.  He had experienced mental torture from the Maoists who demanded a large sum of money after he refused to help them financially, and opposed them.  He sought help from the police.  No help was given and he was ignored.  He did not try to relocate because his enemies including Maoists are in every part of his country and there is no safe place for him.  The authorities are corrupt and he does not trust people in authority for his protection.  The Maoist criminals have a nationwide network and they can find him easily no matter where he goes in Nepal. 

16. A hearing of the Tribunal was held on 24 August 2021 with the assistance of a Nepalese interpreter.  The hearing was scheduled during the COVID-19 pandemic and the Tribunal determined it was reasonable in the circumstances to hold a hearing by video conference.   The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by such means.  The applicant was living in Queensland at the time, whereas the case was constituted to the Melbourne Office of the Tribunal; he therefore consented to this arrangement.

17. The applicant said he was born in [Village 1] (Gulmi district) and later the family moved to [Village 2], Nawalparasi Distrct where they had relatives.  His father had a small convenience store.  The applicant established his own business there.  The applicant confirmed his last address was in Nawalparasi.  The address [Address 1] mentioned in his protection visa application is his in-laws’ address.  Asked if he ever lived in Kathmandu the applicant said yes, his brother has a house there.  After his business was ruined by the Maoists he moved there.  It was not for a long time.  Asked when he moved to Kathmandu the applicant then said he used to go back and forth to Kathmandu.

18. The applicant said he had a large [product] distributorship in [Village 2].  He established the business with a loan; he also had a business partner.  His brother also has a business, importing from China.  The applicant said he started his business 8 to 9 years ago.  It was successful.  But then the Maoists came. 

19. About 6 to 7 years ago (i.e. 2014-2015) two motorbikes crashed into one of his company’s delivery vehicles.  One of the bike riders died.  (Later the applicant said they both died).  They were not wearing helmets and one of them was drug affected.  The Maoists demanded [amount] compensation (for each victim) instead of the normal amount which would be [amount].  The Maoists threatened to leave the body in front of the shop until he paid the extra.  The Tribunal asked why the Maoists involved themselves in this, was the deceased one of them?  The applicant said he thought so. 

20. The applicant said he was involved in politics and the Maoists were asking for a donations and he opposed that.  The Tribunal asked the applicant when he first started having problems with Maoists.  The applicant said it was in 2017-8.  Before that he used to provide small donations.  The Tribunal asked the applicant when he first started making donations to the Maoists.  The applicant said he could not recall.  Asked how often he made such donations he said it was twice a year.  When the Maoists got into Government Biplav’s faction used to demand huge amounts of money with threats to kill.  Maoists used to torture everyone at that time.  The Tribunal asked, when were they torturing people?  The applicant replied that in 2017 and 2018 they were asking for donations.  The Tribunal observed that this was not torture.  The applicant said people were threatened with being killed, they have to provide the money as they cannot go and hide. 

21. The applicant said he was demanded [larger amount] rupees.  He had paid [amount but in August 2018 6-7 people came and demanded the rest.  This was a lot of money and he could not afford it.  People have been murdered for not making these large donations. 

22. The Tribunal asked the applicant who the Maoists were.  The applicant said they were Maoist supporters and when he said he wouldn’t pay they protested, so he thought they were Maoists.  He reported it to the police but they didn’t do anything.  The Tribunal asked again how he knew the people making the demand for money were Maoists, and the applicant said they told him they were from Biplav Maoist Party. 

23. The applicant said he was targeted by the Maoists because he was against them; they know he is a monarchist.  It was also because of his identity as a business person.  The applicant said he never gave any donations to any other party. 

24. The Tribunal asked the applicant how he got a visitor visa.  The applicant said he used to help a group called the [Foundation 1] by introducing it to poor rural women in the area for [a health program].  Late in 2017 he told them what the Maoists were doing to him.  The Tribunal expressed that it was unlikely that the applicant, as a private sector [product] seller, would be involved in such work.  There were development NGOs and local health officials who would be connecting the Foundation to potential clients.  They would not require his assistance.  The applicant maintained that he was affiliated with the Foundation and that he did to go to the [health] programs in [Australia] and learned a lot of things. 

25. The Tribunal asked the applicant why he didn’t lodge a protection visa application when he first came to Australia.  The applicant said he had not thought of staying longer.  He thought things would be settled.  But they weren’t, so what could he do.  The Tribunal asked the applicant why he thought things would settle.  The applicant said he still hoped to be able to go back to Nepal in 2 – 4 years if things improve.  The Tribunal noted that the applicant had claimed to have come to Australia in fear for his safety.  The applicant said he wanted to go back to see his family.  The Tribunal put it to the applicant that it could be perceived that he only applied for protection in order to extend his stay in Australia.  The applicant maintained that his claims were true.

26. The Tribunal put to the applicant that the country information indicated that political violence was rare in Nepal these days and mainly occurred in the context of opposing demonstrations.  The practice of extorting political donations was not targeted and was regarded as a cost of doing business.  The applicant’s claims were therefore not consistent with the country information.  The applicant maintained that it was not safe for him to go back to Nepal.  There followed a discussion about whether the applicant could relocate to India. 

27. The Tribunal obtained a copy of the applicant’s visitor visa application.  It contained information inconsistent with the applicant’s claims.   The Tribunal wrote to the applicant in accordance with s 424A inviting him to comment on this information.  The letter included the following:

    The particulars of the information are:

    In your visitor visa application lodged in November 2017 you said you were

    living in [Town 1 in] Kathmandu and that you had been employed at [Agency 1]

    (based in [Municipality 1], Kathmandu) for 23 months as a program manager.

    You provided a relationship certificate from [Municipality 1] stating that you and your wife are residents of [Town 1], [in] Kathmandu (now [Municipality 1] ).

    Your employer wrote a reference letter to the Australian High Commission

    stating you were the Director of its [health program] department and commending your visit to [Australian Agency 1] to study [health issues].

    The [Foundation 1] (sponsor of the visit) wrote a letter to the High Commission including you in the Delegation as [Agency 1’s] Director ([health program] Department)

    Your accountant stated that you earn a salary of [amount] NPR from

    [Agency 1].

    Your bank balance certificate and bank statements show your address as

    [in Town 1], Kathmandu.

    This information is relevant to the review because your protection visa claims are
    based on your occupation being businessman and your residence being in [Village 2], Nawalparasi, where you claimed you were targeted by Maoists.
    If we rely on this information in making our decision, we may find that you are not a
    businessman based in Nawalparasi and have therefore not been targeted by Maoists.
    Alternatively we may rely on the information to find that you provided false information
    in and with your visitor visa application, which may cause the Tribunal to doubt your
    general credibility, including your claim to have been harmed by Maoists.
    We may therefore reach the conclusion that you do not have a well-founded fear of
    persecution, which would be a reason for affirming the Delegate’s decision.

28. The applicant did not respond to the letter. 

    Country information

29. The DFAT Country Information Report – Nepal, dated 1 March 2019, provides the following information:

    In 1996 the Unified Communist Party of Nepal (Maoist) (UCPN-M) began a nationwide violent insurgency against the government leading to a ten-year civil war. Almost 18,000 people were killed and over 1,300 disappeared before a peace accord was struck in 2006 following an agreement between the Maoists and an alliance of seven Nepali political parties.

    In February 2005 the then-king assumed absolute power in a coup supported by the army. A people’s movement in April 2006 and a joint alliance of democratic parties and the Maoists forced the king to relinquish direct rule. Parliament subsequently agreed to abolish monarchical rule, and Nepal became a republic in 2008 with the election of the first Constituent Assembly.

    …

    POLITICAL OPINION (ACTUAL OR IMPUTED)

    …

    Nepal has enjoyed several years of political stability. A lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. DFAT assesses the risk of a return to widespread violence is low.

    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) CPN-UML 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.

30. Reports of breakaway Maoist groups committing extortion do continue, but targets for extortion are those with money, they are not identified as monarchist Refworld | Nepal: Instances of kidnapping and extortion by Maoist groups and affiliated student groups, including targeting of the Nepal Congress (NC) party and pro-monarchists; instances of land capture by Maoist groups; availability and effectiveness of state protection to victims (January 2015-November 2015).  Outlawed party on extortion spree amid clampdown - myRepublica - The New York Times Partner, Latest news of Nepal in English, Latest News Articles (nagariknetwork.com)

    FINDINGS AND REASONS

31. 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.

32. Based on the information in his application the Tribunal finds that the applicant’s country of nationality is Nepal.  The applicant claimed that he is a monarchist and a businessman who was threatened by Maoists, which arguably could be considered as a claim of persecution on the grounds of political opinion or imputed political opinion, or membership of a particular social group (businessmen). 

33. The applicant claimed that he was targeted while living and running a business in [Village 2 in] Nawalparasi.  He asserted an unclear residential connection with Kathmandu as well, but his claims relate to living in Nawalparasi and running a business there.  He paid small donations to Maoists but their demands escalated to a dangerous level in 2017-18 (the relevant time). 

1. The Tribunal does not accept that the applicant was a businessman in [Village 2], Nawalparasi at the relevant time.  Based on the comprehensive evidence supplied in support of his visitor visa application the Tribunal finds that the applicant was resident in Kathmandu and had been working for an organisation called [Agency 1] (based in [Municipality 1], Kathmandu) for 23 months as a program manager (i.e. since about December 2015).  In that capacity he was supported by [Foundation 1] to visit [Australian Agency 1] to study [health] programs. 

2. It follows that the Tribunal does not accept that the applicant was targeted by Maoists as claimed.  

3. This finding is reinforced by the following consideration.  The applicant, despite claiming to have been threatened with being killed, returned to Nepal twice during his stay in Australia, before lodging a protection visa application.  The applicant claimed that he was given a final demand in August 2018 just before he lodged his protection application, however if his claims were true, he left Nepal in the first place because he was presented with demands for money and people were being threatened with death if they did not comply.  In these circumstances the Tribunal would expect the applicant to apply for protection sooner after arriving in Australia and not return to Nepal twice before lodging his application.   

4. Furthermore, the applicant’s evidence about the identity of the people who were targeting him was vague and conjectural.  Only when pressed did he say that they announced themselves as being from the Biplav faction of Maoists.  If the applicant was targeted as claimed by Maoists in provincial Nepal the Tribunal would have expected him to be able to name his antagonists or at least identify them with some precision.     

5. The applicant claimed to have been held responsible for motorbike fatalities 6 or 7 years ago, relating to his business.  As the Tribunal is not satisfied as to the applicant’s occupation prior to being employed by [Agency 1], the Tribunal does not accept that the accident, if it occurred, related to a business.  It was not readily apparent why Maoists would involve themselves in such an incident and the applicant’s contention that this had to do with Maoists was conjectural.  The Tribunal is not satisfied that the applicant was required to pay extraordinary compensation or that there was anything politically motivated by the compensation requirement. 

6. The applicant claimed to be a Monarchist involved in politics.  However, the Tribunal does not accept that this is the case, as he provided no evidence of active involvement in politics and said that he was not financially supporting any other party.  The Tribunal is not satisfied on the evidence that the applicant will actively support monarchists or any other political group in the reasonably foreseeable future. 

7. Based on the country information which indicates that Maoists do not need to resort to violence, and that Nepal has a stable, lively and generally non-violent political climate, the Tribunal is satisfied that any risk of harm to the applicant in the reasonably foreseeable future is remote and speculative. 

8. Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant faces a real chance of serious harm from Maoists in Nepal.  He therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

9. The applicant confirmed at the hearing that he had no claims to fear harm other than those discussed above.  As the Tribunal has not accepted the factual basis of the applicant’s claim to fear harm in Nepal, 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 real risk that he will suffer significant harm within the complementary protection provisions.

   CONCLUSION

10. 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).

11. There is no suggestion that the applicant is a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.  

12. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Genevieve Hamilton
    Member