1411130 (Refugee)

[2016] AATA 3533

1411130 (Refugee) [2016] AATA 3533 (6 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1411130

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Chris Thwaites

DATE:6 March 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 06 March 2016 at 3:44pm

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act)[1].

   [1] The relevant law is attached to this Statement of Decision and Reasons

2. The applicant, who claims to be a citizen of Bangladesh, applied for the visa [in] September 2012 and the delegate refused to grant the visa [in] May 2014.

3. On 23 June 2014 the applicant applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s file relating to the review application. The Tribunal has also had consideration of the delegate’s decision record provided to the Tribunal by the applicant.

5. The applicant’s written claims for protection are contained in her visa application forms. In summary the applicant states that she left her country because it was not safe for her, as she belongs to a minority group (indigenous to the region). Being a woman of different faith, Buddhist, in a predominantly Muslim country, and of a different race, Chakma, compared to the Bengali majority, the applicant is in constant fear for her life. The government, police and military persecute her ethnic group because of their refusal to convert to Sunni Islam. The applicant states she has experienced constant fear of harm, kidnap and disappearance, sexual assault, from the Bengali military in the Chittagong Hill Tracts, and on an increasing level in the Dhaka metropolitan area. The applicant fears for her safety due to the increase in violence against the Chakma people in regional and metro areas. She is unable to speak up and voice her fears because they are told to keep quiet, and not publicly voice their political opinions. The consequences are her family being threatened with harm, or alternatively, charged with false charges in order to keep Chakma members in jail. The applicant states the Bengali police and military in Chittagong Hill tract, and occasionally in metropolitan areas, may harm or mistreat her. Within metropolitan areas the applicant claims she is exploited within the workforce constantly by co-workers and passers-by who harass her because of her racial and religious views. The applicant fears sexual assault from Bengali military, police and harassment from the general public and kidnap, due to the increase in targeting of minority communities. The applicant states that because the Bengali government is made up of Bengali people who share their views, police and military target Chakma women such as the applicant because of the low probability of reporting persecution and assault. The applicant states she is afraid of the repercussions of voicing the harm against her. The applicant states they view the Chakma as outsiders and target them due to their interest in their land rights.

6. The applicant’s representative provided a written submission to the Department dated [in] May 2013 outlining the applicant’s background and the events leading to her application for a protection visa. The Department also received a number of country information online news articles in relation to Islamist violence in Bangladesh, and attacks and violence against indigenous Chakma, as well as a copy of the Amnesty International report ‘Bangladesh: climate of impunity prevents adequate protection of human rights’ from the Amnesty International submission to the UN Universal Periodic Review April/May 2013. The Department also received a number of documents relating specifically to the applicant and her work with [NGO1], and a number of documents relating to a complaint made to the police about the applicant, and a written statement by the applicant outlining her work with [NGO1] and the hostile attitude, behaviour and activities she faced from Bengali settlers suspecting her as their enemy.

7. [In] May 2014 the delegate refused to grant the applicant a protection visa because the delegate did not accept that a genuine arrest warrant was issued against the applicant on account of her anti-State activities. The delegate did not accept the evidentiary documents submitted by the applicant as authentic, nor did the delegate accept that a court in Bangladesh would address a letter to the applicant in Australia, two years after the purported crime, warning her not to return to Bangladesh or risk being imprisoned on false charges on her return. While the delegate accepted the applicant was employed with [NGO1] [for several months in] 2010, in the delegate’s view, the applicant was merely executing the tasks of her job description when she faced hostility from the local Bengali settlers, and did not accept the applicant’s actions would be perceived as anti-State. Having considered the applicant’s circumstances, the delegate found that she does not face a real chance of being persecuted in Bangladesh now or in the reasonably foreseeable future. The delegate was not satisfied the applicant has a real chance of being persecuted for Refugee Convention reasons and therefore was not satisfied the applicant’s fear is well founded. The delegate was not satisfied Australia had protection obligations to the applicant under the Refugees Convention and therefore the applicant did not meet the criteria for the grant of the visa under s.36(2)(a). The delegate was also not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that the applicant will be subject to a significant harm. Therefore the delegate was not satisfied Australia has protection obligations to the applicant under s.36(2)(aa).

8. On 23 June 2014 the applicant applied to the Tribunal for review of that decision and on 20 August 2015 the Tribunal wrote to the applicant inviting her to appear before the Tribunal at a hearing on 19 November 2015.

9. On 12 November 2015 the Tribunal received a written submission from the representative dated 9 November 2015, addressing a number of the issues raised in the delegate’s decision. It submited the delegate made a mistake in observing that the court would never write to the applicant advising her not to return to Bangladesh. The submission states the letter referred to by the delegate was written by the applicant’s lawyer in Bangladesh acting on the applicant’s behalf, not by the court. The applicant’s lawyer wrote to her advising of the danger if she returned to Bangladesh and advising her not to return. The submission also addresses the concerns about the documents in support raised by the delegate, including submissions about the format of court documents and the backlog and delay in the Bangladesh court system. The submission also notes the delegate mentioned that the case number could not be found on the Supreme Court of Bangladesh website, and submits the matter is pending with a District Judge, and that lower courts do not have computerised records of all cases lodged. The submission also addresses the applicant’s delay in making her protection visa application and notes the applicant had come to Australia to enhance her academic knowledge and then go back to her home country and her career by taking advantage of her studies in Australia. However when her parents informed her by telephone that the Bengali Muslim settlers and the local police were looking for her she accordingly lodged her protection visa application. Her fears came true when she was informed by the lawyer that the court had issued a summons against her. The submission also addresses the delegate’s observations that the applicant could go back to Bangladesh and settle down in Dhaka. It submits the applicant’s life will still be in danger as the applicant is confident that the complainants, who are Muslim fanatics, will come after her anywhere in Bangladesh as they are in a majority and have all the resources. The applicant is only safe in another country. The applicant can always be singled out because of her physical appearance and it will not be possible for the applicant to get justice and protection from the authorities. The submission notes the applicant’s family has been staying away from their home due to the danger and that their neighbour has reported people visiting their house looking for them.

10. The representative also provided copies of online news articles in relation to persecution of indigenous tribal people in Bangladesh, a copy of the United States Department of State Country Report on Human Rights Practices for 2014-Bangladesh, a copy of the United States Department of State International Religious Freedom Report-Bangladesh from 2013, a copy of the IWGIA Report 14: “Militarisation in the Chittagong Hill Tracts Bangladesh: the slow demise of the regions indigenous peoples”,  an online article from the Daily Star from 4 May 2014 with the headline “245 cases in the last seven years saw no justice” relating to 245 cases of rape or sexual harassment of indigenous women in the last seven years, and copies of online articles relating to violence and persecution against Buddhists and indigenous women, and an affidavit from the applicant’s parents’ neighbour stating that [in] November 2014 four unknown persons, one armed with a revolver, came to his door enquiring about the applicant and her parents.

11. The applicant appeared before the Tribunal on 19 November 2015 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent who attended the hearing. At the conclusion of the hearing the Tribunal granted the applicant 14 days to provide better quality copies of the documents in support submitted to the Department and Tribunal as well as any further submissions.

12. On 3 December 2015 the Tribunal received high resolution copies of the court documents previously provided.  The representative also provided a copy of the United States Department of State Bangladesh 2014 Human Rights Report and a number of online news articles about ongoing violence in Bangladesh and persecution of the indigenous people in Bangladesh.

    FINDINGS AND REASONS

    Nationality

13. On the basis of the applicant’s consistent information provided to the Department and the Tribunal about her place of birth and citizenship of Bangladesh, as well as the copy of the applicant’s Bangladesh passport provided to the Department, the Tribunal finds that the applicant is a national of Bangladesh.  There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Bangladesh.  Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of Bangladesh, the Tribunal also finds that Bangladesh is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    Credibility

14. During the hearing the Tribunal spoke to the applicant about her background, family composition, education and employment history, as well as the reasons she fears returning to Bangladesh. The Tribunal questioned the applicant in detail about her employment with [NGO1] and about the disputes with, and harassment and threats from, the local Muslim community leaders she experienced. The applicant gave detailed, consistent and persuasive evidence about her experiences.

15. The Tribunal spoke to the applicant in detail about the documents she had provided to the Department in support of her application, and about the delegate’s concerns about the genuineness of those documents as noted in the delegate’s decision record. The Tribunal accepts the applicant’s oral evidence, and the representative’s written submission, that one of those documents was mistakenly identified by the delegate as a letter from the Civil & Criminal Court in Bangladesh. The Tribunal accepts that letter was from the applicant’s lawyer who is an Advocate in the Civil & Criminal Court, [District 1], as indicated in the signature block of the letter. The Tribunal also spoke to the applicant about the origins of the other documents provided in support of the application and how she had obtained them. The applicant provided detailed oral evidence about how her lawyer went about collecting copies of the documents from the court, and the reasons why some of the documents were only partially copied and then passed on to her parents to be translated before they were sent to the applicant. The applicant explained that some of the documents came from different sources and therefore had different letterhead, such as the affidavits, and the different dates were referring to different stages of the legal process. The Tribunal found the applicant’s oral evidence about the documents plausible and accepts that they are genuine.

16. The applicant also told the Tribunal that since she left Bangladesh people have been telephoning her family members and visiting her family home asking about her, and that her family is now worried about their own safety and have stayed away from the family home because of that. The applicant provided an Affidavit from a neighbour stating that people knocked on his door looking for the applicant and her parents. 

17. The Tribunal found the applicant’s evidence detailed, consistent, and persuasive, and supported by documents from her former employer [NGO1] and the police and court documents and affidavits she provided. The applicant’s responses to concerns raised about those documents were plausible. The Tribunal also accepts the applicant’s explanation about why she did not make her protection visa application when she first returned to Australia in early 2011, that she had initially thought the issue would be over once she had left the area and Bangladesh, and that she made the application after receiving news from her family about people continuing to contact them looking for her and the issuing of the warrant for her arrest. The Tribunal notes this explanation is consistent with her earlier oral evidence and the affidavit of her family’s neighbour and the documents in support of the application. On the evidence before it, the Tribunal accepts the applicant is a witness of truth and the Tribunal is satisfied the she has told the truth about her claims and her fears of returning to Bangladesh.

    Refugee Convention

18. As noted above the Tribunal finds the applicant is a witness of truth and the Tribunal is satisfied the applicant had told the truth about critical aspects of her claims.  

19. The Tribunal notes the applicant’s claims have remained consistent throughout the application and review process and the Tribunal has given weight to the numerous documents provided in support of the application. The Tribunal accepts the applicant is a Buddhist by religion and belongs to the Chakma ethnic group, and is physically distinguishable from people of the Bengali Muslim community. The Tribunal accepts the applicant was initially a volunteer with [NGO1] and was subsequently employed by that organisation. The Tribunal accepts the applicant was involved in providing programs and assistance to the Chakma people in the Chittagong Hill Tracts and that she had a number of disputes and clashes with the local Bengali Muslim community leaders who were upset about the focus of the programs being on the indigenous people, and viewed her and her work with suspicion and hostility. The Tribunal accepts the applicant was harassed and threatened with physical violence and death by the local Bengali Muslim community and its leaders due to her race and religion and her work with the Chakma people. The Tribunal accepts the applicant approached the police about her concerns and the police failed to stop the harassment and threats. The Tribunal accepts the applicant eventually resigned her employment due to fears for her own safety.  The Tribunal accepts the leaders of the local Bengali Muslim community have continued to pursue and threatened the applicant and have made false allegations to the police resulting in an arrest warrant being issued against the applicant. The Tribunal also accepts people continue to visit the applicant’s family’s home looking for the applicant and have frightened her family who have stopped staying at that home due to their fear.  

20. The Tribunal accepts the applicant has been harassed and threatened with assault and death. The Tribunal accepts the police have failed to protect the applicant in the past and that there is now a warrant issued for her arrest, and that people who wish to harm the applicant are still seeking to find her and harm her.

21. The Tribunal has taken into account the DFAT Country Report Bangladesh October 2014 and its assessments in relation to indigenous peoples race and religion, and in the applicant’s particular circumstances, the Tribunal finds that if returned to Bangladesh there is a real chance the applicant would come to the adverse attention of the leaders of the local Bengali Muslim community who continue to wish to harm her, and that there is a real chance she will suffer significant physical harassment and ill-treatment in her home area in Dhaka, and in the Chittagong Hill Tracts. Therefore the Tribunal accepts there is a real chance the applicant will suffer serious harm if she returned to Bangladesh, and the Tribunal is satisfied that the applicant’s fear of persecution is well-founded.

22. While the Tribunal considers revenge and retribution for being excluded from the programs as one of the motivating factors of the local Bengali Muslim community leaders, the Tribunal also accepts that the applicant’s race and religion is the essential and significant reason for the persecution as required by paragraph 91R(1)(a) of the Act. The Tribunal also finds that the harm the applicant fears involves ‘serious harm’ as it amounts to significant physical harassment and significant physical ill-treatment as listed in paragraph 91R(2), and as required by paragraph 91R(1)(b) of the Act. The Tribunal also finds that the persecution which the applicant fears involves systematic and discriminatory conduct, as required by paragraph 91R(1)(c).

23. The issue of whether it would be reasonable to expect an applicant to relocate within their country only arises if the circumstances indicate that there is a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution, that is, where the feared persecution is localised rather than nation-wide. The Tribunal accepts the applicant is physically distinguishable as a Chakma woman, and will continue to stand up for the rights of the Chakma people, and that that activity would attract the adverse attention of the local Bengali Muslim community leaders wherever she was in Bangladesh, in the reasonably foreseeable future. The Tribunal accepts the authorities have failed to provide the level of protection which accords with international standards and will be unable to do so if she returns to Bangladesh. As such the Tribunal finds the applicant has a well-founded fear of persecution for a Convention reason throughout the entirety of Bangladesh.

1. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

2. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Chris Thwaites
   Member  6 March 2016

   
   

   ATTACHMENT: RELEVANT LAW

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

   Refugee criterion

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

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

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

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

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

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

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

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

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

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

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

    Complementary protection criterion

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

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

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

    Section 499 Ministerial Direction

17. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.