1503088 (Refugee)

[2016] AATA 3672

1503088 (Refugee) [2016] AATA 3672 (18 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503088

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Fraser Syme

DATE:18 March 2016

PLACE OF DECISION:  Brisbane

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 18 March 2016 at 1:55pm

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. The applicant is [an age] year old man from Bangladesh. According to the applicant, he and his family members were harmed in the past by supporters of the Awami League (“AL”) because of his support of Jamaat-e-Islami (“JEI”) and because he is a businessman. He fears if he returns to Bangladesh he will be harmed again by AL supporters and he may be harmed by the Bangladesh authorities because he departed Bangladesh illegally and applied for asylum.

2. The applicant applied to this Tribunal on 3 March 2015 for review of a decision made by a delegate of the Minister for Immigration [in] January 2015 to refuse to grant him a Protection visa under s.65 of the Migration Act (1958). The applicant included the delegate’s decision with the review application.

3. This review application raises the following issues for the Tribunal to determine:

   a.Does the applicant face a real chance of serious harm in Bangaldesh.

   b.Is the applicant able to receive state protection from the Bangladeshi authorities

   c.Is it reasonable for the applicant to relocate to another part of Bangladesh.

   HISTORY OF THE APPLICATION FOR REVIEW

4. The applicant entered Australia as an unlawful maritime arrival in May 2013. He applied to the Department of Immigration for a protection visa June 2014. The delegate conducted an interview with the applicant in October 2014. The Tribunal has listened to a recording of that interview. The applicant provided to the department: identity documents; school records and a letter from his former employer. 

5. In the decision under review, the delegate found the applicant was a low-level supporter of JEI and had been extorted in the past by supporters of AL, but that the applicant was not targeted for harm due to his political opinion. The delegate found the applicant therefore did not have a well-founded fear of persecution or a real chance of significant harm if he returned to Bangladesh.

6. The applicant appeared before the Tribunal on 17 March 2016 to give evidence and present arguments. The hearing was conducted with the assistance of an onsite interpreter in the Bengali and English languages.

7. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal via telephone and provided written submissions the day prior to the hearing. The applicant provided no additional supporting evidence to the Tribunal.

   RELEVANT LAW

8. 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.

9. 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).

10. 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.

11. 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’).

12. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of r.2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.

13. 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. DFAT have published a country assessment report for Bangladesh, which the Tribunal has had regard to.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. For the following reasons, the Tribunal has concluded that the decision under review should be remitted

15. In making its findings, the Tribunal is mindful the applicant was [age] years old at the time of the hearing. The Tribunal is mindful too that whenever evidence is received in a language other than the applicant’s first language or through an interpreter there is always room for differences in meaning and nuance. The Tribunal is satisfied the standard of interpreting at the hearings was reasonable. The Tribunal considers the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way.

16. The Tribunal finds the applicant is a national of Bangladesh. He provided a copy of his Bengali birth certificate and other identity documents. He made no claim to be a national of any other country. The Tribunal accepts the applicant’s claims should be assessed against Bangladesh for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered the applicant’s home town, the place he resided prior to departing Bangladesh, to be his home region.

    Real chance of serious harm

17. In summary, the applicant’s claims are he was assaulted and threatened in the past because he refused attempts by AL supporters to recruit him to that party. He told the Tribunal he was considered to be someone with the capability of persuading people. He would often speak with people about teachings from the Koran that were also the basis of JEI policies. His success in doing that brought him to the attention of AL supporters and therefore their desire to recruit him to that party. He explained his initial introduction to JEI was through a former employer and his own devout Muslim beliefs. He told the Tribunal how his clashes with AL supporters started with verbal altercations. Then, after the AL won the 2008 election, those altercations turned to physical violence. His conflicts with AL supporters further deteriorated in 2012 when the applicant was involved in JEI activities protesting the arrest of JEI leaders involved in war crime trials. He continued to decline the overtures of AL supporters to defect to their party. In December 2012, he was given an ultimatum of ceasing his JEI activities and joining AL, or being extorted money. When the applicant once more refused, he was assaulted a week later on expiry of the extortion deadline. He suffered injuries which rendered him unconscious and required admission to hospital for 10 days.

18. At the hearing the applicant explained in detail that after his discharge, the applicant attended a JEI meeting where he sought the assistance of JEI leaders, including the local [official] and [official] and the [official]. They all spoke on his behalf at the meeting to seek a solution for the applicant. That night, when on his way home, he was confronted by AL supporters who attempted to abduct him. He escaped by fighting back against them and running into thick jungle in the dark. He hid himself amongst the bushes until he was sure the AL supporters were no longer searching for him. He then carefully made his way to a roadside bus stop. He caught the first bus travelling in the direction of his relatives in Dhaka and on alighting from that bus caught a taxi for the final 50kms of the over 100km journey to his relative’s home. While at his relative’s home he considered whether he could restart his life there. He was ultimately persuaded to leave Bangladesh after a conversation with his parents where they counselled him wherever he lived in Bangladesh he would be targeted by supporters of AL due to his being a supporter of JEI. His parents told him he either had to leave the party or leave the country. He chose the latter after AL supporters attacked his family home while the applicant was in Dhaka. His love for JEI and his faith mean he will always be involved with JEI.

19. The applicant’s claims have been largely consistent and detailed throughout the history of his protection visa application. The Tribunal found the applicant to be a credible witness who gave detailed and spontaneous recollections that appeared to be devoid of exaggeration.  The Tribunal notes too his claims show an escalation over time, which lends plausibility to their being events that genuinely occurred. It is persuaded too that his claims he would resume JEI activities if he returned to Bangladesh are genuine. It makes that finding putting weight on the applicant having the standing within JEI that both the local and district leaders of the party took personal interest in his situation. It puts weight too on the applicant regarding his support for JEI as part of his faith.

20. The Tribunal has had regard to the country information provided by the migration agent. It notes much of that relates to political violence within election cycles or of high level leaders of JEI. The Tribunal is mindful too of the DFAT report which states while there is political violence in Bangladesh, low-level supporters of JEI are generally not at risk of serious harm. The Tribunal finds the applicant, although not a leader – and he has not claimed to be a leader – was an active and passionate supporter of JEI in the past and accepts if he returns to Bangladesh, he will continue to be so.

21. The Tribunal accepts the applicant’s claims as made. It accepts he has been targeted for harm in the past by supporters of AL in his home area. It finds his political opinion in support of JEI is the essential and significant reason the AL supporters have targeted the applicant in the past and will target him again in the future. Therefore his fear of persecution is for a Convention reason. Accordingly, the requirements of s.91R(1)(a) are met.

22. Having regard to the non-exhaustive list in s 91R(2) of the type and level of harm that will constitute ‘serious harm’ for the purposes of s 91R(1)(b), the Tribunal accepts that the persecution feared by the applicant involves serious harm, including significant physical harassment or ill-treatment and a threat to his life or liberty. It follows that the requirements of s 91R(1)(b) are also met.

23. In relation to the requirements of s 91R(1)(c), the Tribunal is satisfied from country information set out earlier that the feared persecution by supporters of AL would involve conduct which is systematic in the sense of being deliberate and premeditated (see VSAI v MIMIA [2004] FCA 1602) and discriminatory in the sense that it would be directed at the applicant for the Convention reasons of his political opinion. It follows that the requirements of s 91R(1)(c) are met in this case.

24. On the evidence before it, the Tribunal is satisfied the applicant has more than a remote or speculative chance and therefore has a real chance of serious harm for the Convention reason of his political opinion from supporters of AL, now or in the reasonably foreseeable future if he returns to his home area in Bangladesh.

    State protection

25. Given the threat to the applicant arises from supporters of AL and AL is the current ruling party of the Bangladesh government, the Tribunal considers state protection will not be available to the applicant. In making that finding, the Tribunal has had regard to the country information provided by the migration agent and in the DFAT country report regarding political violence perpetrated by supporters of AL with impunity.   

    Relocation

26. There remains the question of whether the applicant will face less than a real chance of serious harm by relocating to a different part of Bangladesh. It is well settled that the focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of “practicable”, to expect him or her to seek refuge in another part of the same country. What is “reasonable” in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC [2007] HCA 40 and SZFDV v MIAC [2007] HCA 41, per Gummow, Hayne & Crennan JJ, Callinan J agreeing. In the matter of SZATV v MIAC (2007) 233 CLR 18 at [80]-[81] Kirby J stated;

    [I]nternal relocation will not be a reasonable option if there are logistical or safety impediments to gaining access to the separate part of national territory that is suggested as a safe haven. Nor if the evidence suggests that there are other and different risks in the propounded place of internal relocation; or where safety could only be procured by going underground or into hiding; or where the place would not be accessible on the basis of the applicant’s travel documents or the requirements imposed for internal relocation.

27. Given he relocated there once before and has relatives there, the Tribunal identified Dhaka as a location in Bangladesh where the applicant could relocate. The Tribunal has had regard to the personal circumstances of the applicant as a young, single man who was a successful businessman in the past and had shown himself to have the wherewithal and resilience to establish himself in Australia. There are all factors which weigh in favour of finding it is reasonable to require the applicant to relocate. As well as his not being harmed while he was residing in Dhaka for three months before departing Bangladesh.

28. The applicant said he rarely left the home of his relative during those three months. He raised being questioned by neighbours and his past then coming to into light as a reason it was unreasonable for him to relocate to Dhaka. The Tribunal is not persuaded being questioned by neighbours about his past makes it unreasonable to relocate to Dhaka. The applicant further raised eventually, after he has settled, he would make contact with the local JEI office and attend a JEI affiliated Mosque. He would then recommence his JEI activities. The Tribunal put to him that would indicate that there are JEI supporters living there which would suggest he could live there too. However, the Tribunal is mindful of the country information regarding the targeting of JEI supporters, including the banning of that party and clashes surrounding protests against the war crimes tribunal convictions of JEI leaders. Having regard to that information the Tribunal is satisfied although there may not be a real chance of harm to the applicant as a supporter of JEI in Dhaka the risk of harm to the applicant in Dhaka is such that it makes it not reasonable to require him to relocate there.

29. In the circumstances of the applicant, the Tribunal accepts that it is not reasonable for the applicant to relocate to Dhaka or to any other location in Bangladesh to avoid his risk of Convention based persecution.

30. For the above reasons, the Tribunal is satisfied the applicant has a well-founded fear of persecution from supporters of AL due to the Convention reason of his political opinion, now or in the reasonable foreseeable future if he returns to Bangladesh.

    CONCLUSIONS

31. For the reasons given above, 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).

32. Given the finding in the preceding paragraphs, it is not necessary for the Tribunal to examine in detail and make findings on other claims of the applicant or integers of his claims. As the applicant has satisfied s.36(2)(a), it follows there is no need for the Tribunal to consider the complementary protection criteria in s.36(2)(aa).

    DECISION

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

    Fraser Syme

    
    

    Member