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

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.
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.
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
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.
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.
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.
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…

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.

Continue reading 1503088 (Refugee)

Details

AGLC: 1503088 (Refugee) [2016] AATA 3672
Case: [2016] AATA 3672
Decision Date: 18 March 2016

CaseChat Overview and Summary

This case involved a claimant from Bangladesh who applied for refugee status in Australia, with the application being reviewed by the Tribunal. The Tribunal was required to consider the applicant’s claims of past persecution and threats due to his refusal to join the Awami League party, as well as his involvement in Jamaat-e-Islami activities. The Tribunal had to assess the credibility of the applicant’s claims and the evidence provided, including country information from the Department of Foreign Affairs and Trade. The central legal issues were whether the applicant met the criteria for refugee status under section 36(2)(a) of the Migration Act and whether the Tribunal should remit the matter for reconsideration based on the evidence presented.

The Tribunal concluded that the applicant’s claims of past persecution and threats were credible, based on the detailed and consistent account provided, supported by the country information and the applicant’s identity documents. The Tribunal found that the applicant had a real chance of serious harm if returned to Bangladesh due to his refusal to join the Awami League and his ongoing involvement with Jamaat-e-Islami. The Tribunal accepted that the applicant’s devout Muslim beliefs and his ability to influence others led to conflicts with Awami League supporters, culminating in physical violence and extortion attempts. The Tribunal also noted the applicant’s effective communication and understanding of the proceedings, despite the language and interpretation challenges.

In light of the credible claims and evidence, the Tribunal decided to remit the matter for reconsideration, directing that the applicant satisfies the refugee status criteria under section 36(2)(a) of the Migration Act. The Tribunal found it unnecessary to delve into other claims or aspects of the applicant’s case since the established facts met the necessary threshold for refugee status. Consequently, the Tribunal did not need to consider the complementary protection criteria under section 36(2)(aa).

The final orders of the Tribunal were to remit the matter back to the original decision-maker for reconsideration, with the direction that the applicant meets the requirements for refugee status under the Act. The Tribunal’s decision was based on the applicant’s credible account of past persecution and the real chance of serious harm if returned to Bangladesh.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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