1419835 (Refugee)

Case [2016] AATA 4907

1419835 (Refugee) [2016] AATA 4907 (29 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419835

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Giles Short

DATE:29 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 29 June 2016 at 2:22pm

CATCHWORDS

REFUGEE – Protection visa – Bangladesh – Political opinion – Jamaat-e-Islami – Islami Chhatra Shibir – Religion – Sufi – Maizbhandari sect – Particular social group – Bangladeshi ship deserters – Election campaign – Physical violence – Threats of killing – Imprisonment – Employment – Credibility issues – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 65, 91R, 424AA, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES
AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Border Protection v WZAPN [2015] HCA 22
Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
SZQTJ v Minister for Immigration & Anor [2015] FCCA 3226
SZRNJ v Minister for Immigration [2014] FCA 782
SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245
SZVCH v Minister for Immigration & Anor [2015] FCCA 2950
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

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

INTRODUCTION

  1. [The applicant] is a citizen of Bangladesh.  He deserted a ship in Australia [in] 2011 and he first applied for a protection visa on 12 May 2011.  In that application he said that he had left Bangladesh to escape persecution for his religious beliefs as an adherent of a Sufi sect, Maizbhandari.  He expanded upon these claims when he was interviewed by the primary decision-maker in…

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Details
AGLC
1419835 (Refugee) [2016] AATA 4907
Case
[2016] AATA 4907
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse the applicant a protection visa. The applicant, who had deserted a ship in Australia in 2011, sought review before the Tribunal. The core dispute revolved around whether the applicant had a well-founded fear of persecution in Bangladesh for one of the five prescribed reasons under the Refugees Convention, or alternatively, whether there was a real risk of significant harm upon removal to Bangladesh.

The Tribunal was required to determine if the applicant met the criteria for a protection visa under section 36(2) of the Migration Act 1958. Specifically, the issues were whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or if there were substantial grounds to believe that removal would result in a real risk of significant harm. The Tribunal also considered the applicant's claims regarding his religious beliefs as an adherent of a Sufi sect, Maizbhandari, and his assertions of potential discrimination and harassment if returned to Bangladesh.

The Senior Member, Giles Short, found that the applicant had not satisfied the criteria for a protection visa. The applicant's account of his residence and employment history in Bangladesh contained inconsistencies, leading to credibility issues. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any of the Convention reasons, nor that there was a real risk of significant harm upon removal. Consequently, the Tribunal affirmed the delegate's decision not to grant the protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

[The applicant’s] current application for a protection visa was refused by a delegate of the Minister for Immigration on 7 November 2014 and he has applied to this Tribunal for review of that decision. A summary of the relevant law is set out at Attachment A. I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant. Subject to the observations made above with regard to the Tribunal’s jurisdiction, the issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention if he returns to Bangladesh and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.CONSIDERATION OF CLAIMS AND EVIDENCEDoes [the applicant] have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Bangladesh?[The applicant’s] claims [The applicant] is aged in his [age range]. He comes from a village called [Village 1] which is in the Senbag thana in the Noakhali district in the south-east of Bangladesh. His parents still live in the village where he has said that his father has a lot of land. He has a wife and [child] who are living in Narayanganj with her family. [The applicant] attended primary and high school in [Village 1]. He attended college (Years 11 and 12) in [a town] in the Feni district and he then completed a [degree] at [a named] College in [year]. He has said that he was unemployed until March 2004 where he went to Dhaka to work as [an Occupation 1] for a [product] company, [Business 1]. He has said that he ceased working there in January 2007 and that from May 2008 until [2011] he was employed as [an Occupation 2] by a firm of shipping agents in Chittagong, [Business 2]. In his current application he said that he had lived in Narayanganj from March 2007 until October 2010 (when he had last left Bangladesh) but at the hearing before me he said that this was not correct and that he had lived in [Village 1] and had visited his wife and [child] in Narayanganj once a week. He then said that he had been unable to live anywhere permanently, that he had only gone to [Village 1] to visit his parents and that he had been travelling around. As referred to above he deserted a ship in Australia [in] 2011. As referred to above, in his first application for a protection visa, made on 12 May 2011, [the applicant] said that he had left Bangladesh to escape persecution for his religious beliefs. He said that he was an adherent of a Sufi sect, Maizbhandari, and that he feared that he would be discriminated against and harassed and that his life might even be at risk for this reason if he returned to Bangladesh. He said that the mainstream people in Bangladesh were fundamentalists and the government represented them. He said that as a result he would not be protected by the authorities if he returned to Bangladesh.

Decision

Reasons for decision

For the reasons given above I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in paragraph 36(2)(a) or (aa) of the Migration Act for a protection visa. There is no suggestion that he satisfies subsection 36(2) on the basis of being a member of the same family unit as a person who satisfies paragraph 36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criterion in subsection 36(2) for a protection visa.DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Giles ShortSenior MemberATTACHMENT A - RELEVANT LAW In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. As applicable to this application subsection 36(2) of the Act provided that:‘(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 under the Refugees Convention as amended by the Refugees Protocol; 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.’Refugee criterion Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’. Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

Ratio Decidendi

Legal Principle Established

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