1414581 (Refugee) - [2016] AATA 3213

1414581 (Refugee) [2016] AATA 3213 (28 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1414581
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:R. C. Titterton
DATE:28 January 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 28 January 2016 at 9:18am

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 Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Bangladesh applied for the visa [in] October 2012 and the delegate refused to grant the visa [in] August 2014.
The applicant appeared before the Tribunal on 1 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. The hearing was also attended by [Ms A], a friend and support person for the applicant.

SGZIZ

In SZGIZ v Minister for Immigration and Citizenship the Full Court of the Federal Court of Australia determined that s 48A does not prevent a person from making another application for a protection visa on complementary protection grounds where the first application was made (and refused) before the commencement of the complementary protection provisions of the Act on 24 March 2012. The applicant had previously made an application for protection [in] June 1996. This was refused [in] April 1997. On 16 July 1998 the Refugee Review Tribunal affirmed the Department’s decision. Accordingly, the applicant was not prevented by the decision of SZGIZ from lodging his current application for protection. Therefore, his application will be considered again, on complementary protection grounds.
Therefore, the issue in this case is whether there are 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 the applicant will suffer significant harm: s 36(2)(aa) of the Act.

SZVCH

The Tribunal notes that, at one point after the hearing the applicant claimed, on the basis of a decision of the Federal Circuit Court, namely SZVCH v Minister for Immigration [2015] FCCA 2950, that the review of the delegate’s decision should also be considered again on the basis of Refugee Convention claims. The Tribunal understands that the applicant now accepts that, given further decisions of both the Federal Circuit Court and the Federal Court of Australia, this approach is not available to the Tribunal and the review…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 1414581 (Refugee) [2016] AATA 3213
Case: [2016] AATA 3213
Decision Date: 28 January 2016

CaseChat Overview and Summary

This case involved an application for review of a decision by the delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under the Migration Act 1958. The applicant, a citizen of Bangladesh, had applied for a Protection visa in 2012, after previously applying and being refused in 1996. The Tribunal was required to decide whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there was a real risk that the applicant would suffer significant harm.

In considering the matter, the Tribunal examined the evidence provided by the applicant, including the DFAT Country Report for Bangladesh, and submissions made by the applicant’s agent. The Tribunal found that while the applicant was a citizen of Bangladesh, there were no substantial grounds for believing that he would suffer significant harm if returned to Bangladesh, as defined in s 36(2A) of the Act. The Tribunal concluded that the applicant did not satisfy the criterion set out in s 36(2)(aa) of the Act for a protection visa.

Accordingly, the Tribunal affirmed the decision not to grant the applicant a Protection visa.

Orders