1509141 (Refugee)

[2017] AATA 466

1509141 (Refugee) [2017] AATA 466 (1 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509141

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Louise Nicholls

DATE:1 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 01 March 2017 at 4:48pm

CATCHWORDS

Refugee – Protection visa – Bangladesh –Member of a Particular social group – Political opinion – Jamaat-e-Islami –  Islami Chatra Sena Shibir – Political activist – Physical assaults – False charges – Business owner –– Land dispute – Credibility – Inconsistent evidence –

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2

CASES

MZAFZ v MIBP [2016] FCA 1081

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 applicants for review are the applicant wife and husband and their [number] children. They claim to be citizens of Bangladesh. They are seeking review of a decision made by a delegate of the Minister for Immigration [in] June 2015 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants arrived in Australia [in] November 2014. They are seeking protection visas on the basis that the applicant wife claims she fears returning to Bangladesh for reason of her political opinions. Her husband and children are seeking visas as members of her family unit.

3. The applicants applied for the protection visas [in] June 2015. They provided a number of documents, including;

   ·Applicant [children’s] birth certificates ([birthdates]).

   ·Applicant [children’s] Bangladeshi school reports.

   ·Bangladeshi educational documents for the applicant wife.

   ·Applicant wife and husband’s national ID cards and marriage contract ([date] 1995).

   ·Biodata pages of the applicants’ Bangladesh [passports] issued in September/October2011.

   ·Statement of the applicant wife [in] December 2014 setting out claims for protection. 

   ·Membership card for Islami Chartri Sena Shibir.

   ·Letter from [an office bearer] of Chatra Chatri Sena Shibir certifying that the applicant wife has been known to her for [number] years and is a member and [office bearer] of the Islami Chatra Shena Shibir [area 1] branch, Dhaka.

   ·A list of the [office bearers] of the Islami Chatra Shena Shibir[ area 1] branch, Dhaka 2011 to 2012. 

   ·A certificate certifying that the applicant wife passed the [level] examination in 1994.

   ·Applicant wife’s Bangladeshi [medical] documents January 2014.

   ·Police Case Injury Report referring to [(the applicant wife)] noting a [specified injury], [other minor ailments]. She was admitted into the [hospital ward] with a suspected [specified injury].  It also noted that injury may have been caused by a [specific kind of] weapon.  [date] 2009.

   ·Submissions of the applicants’ representative.

4. The applicants provided letters, statements and other documents to support applications for bridging visas.

5. [In] June 2015 the delegate refused the application for protection visas on the basis that the applicants did not meet the criteria for protection visas.

6. This is an application for review of that decision and it was made [in] July 2015. The applicants provided a number of documents to support the review, including,

   ·Delegate’s decision record of [date] June 2015.

   ·Copies of Bridging Visas Grant notices in relation to the applicant wife and the applicant children.

   ·The applicant husband and wife’s joint bank statement from [Bank].

   ·Membership card of Islami Chatra Sena Shibir and Letter from [an office bearer] of Chatra Chatri Sena Shibir certifying that the applicant wife has been known to her for [number] years and is a member and [office bearer] of the Islami Chatra Shena Shibir [area 1 ]branch, Dhaka, and a list of [office bearers] of the Islami Chatra Shena Shibir [area 1] branch, Dhaka 2011 to 2012. (Previously provided to the Department) 

   ·Property documents relating to property owned by the applicant wife’s [relative ]and transferred to the applicant wife in August 2009.

   ·Charge sheets in relation to the applicant wife’s complaint against [complainant] made [in] 2009. Section 7/10 and 30 of the Prevention of Women’s Repression Act 2000 and court outcomes [date] March 2011 and [date] June 2011.

   ·First Information Report [dated] 2009 relating to complaints about an attack on [business premises] in [Town 1] and a copy of the applicant wife’s statement in relation to that alleged attack.

   ·Photograph of the wife with [specified injuries].

   ·Photograph of a multistorey building said to be the [business premises] which was the subject of the land dispute referred to later in this decision.

   ·Documents relating to a [corporation] [date] June 2013.

   ·Arrest warrant seeking the arrest of the applicant wife dated [date] October 2016 ([date] August 2015).

   ·Applicant husband’s itinerary [day], August [date], 2016 Dhaka to [Country 1].

   ·Applicant wife’s passport pages with [Country 1] visa endorsement and arrival and departure stamps for [Country 1].

   ·Medical documents relating to the applicant wife’s [medical condition] in [2009] and discharge from [a] [Hospital] Dhaka.

7. The applicants were initially invited to appear before the Tribunal in on 4 November 2016 to give evidence and present arguments. The applicant wife gave evidence to the Tribunal and the Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

8. The applicant husband did not attend the Tribunal hearing as he had departed Australia [in] March 2016 and was unable to return as the bridging visa which gave him permission to travel had expired.

9. The Tribunal advised the applicant that the application included her husband and her [number] children as family applicants.  As her husband has departed Australia and is not likely to be present when the decision is made it advised he may not be eligible for a protection visa.

10. The applicants were represented in relation to the review by their registered migration agent. The applicant wife advised at the beginning of the hearing that her representative was intending to attend the Tribunal hearing but had been held up.  She stated she was happy to go ahead without her representative. However, after a short adjournment she advised her representative would not be attending the hearing. She stated she was happy to go ahead with the hearing in the absence of her representative.

11. The applicant wife gave evidence about her background, her travel to Australia with her immediate family, her and her family’s circumstances in Bangladesh and her claims for protection. She also gave evidence about her husband’s current situation in Bangladesh.

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

    CONSIDERATION

13. The issue in this case is whether the applicants meet the criteria for a protection visa. If one of the applicants is found to meet the refugee or complementary protection criterion the Tribunal must consider whether the other applicants meet the family membership criterion.

    Validity of non-disclosure certificates

14. A preliminary issue which arises in this review is whether certificates purporting to restrict disclosure of some Departmental documents are valid.

15. The Tribunal has received Departmental file [file number]. The file contains the protection visa applications made [in] December 2014 and associated documents. The file has certificates issued pursuant to s.438 of the Migration Act which, on their face, restrict the disclosure of the following folios;

    ·ff.3-4. Email correspondence between Departmental officers relating to another individual. It is clear that this document had been placed on the file in error as it relates to a different application and is unrelated to the visa application.

    ·Ff.12-16. Attachment to the file. These folios are copies of outgoing passenger cards completed and signed by the applicants on various dates.

16. The Tribunal has considered the material identified in the two relevant certificates and considers that the certificates are not valid certificates. The certificates state that the disclosure of the information would be contrary to public interest on the grounds they contain information relating to internal working documents and business affairs.

17. In MZAFZ v MIBP,[1]  the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were ‘internal working documents’. This was held never to have been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.[2]

    [1] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016).

    [2] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37].

18. The documents in ff.3-4 concern an unrelated individual and have been placed on the file in error by an officer of the Department.  As they concern another person’s private affairs and are not related to the application for review in any way they would not ordinarily be disclosed to the applicants. Further, they do assist the applicants, or detract from their claims and do not form part of the Tribunal’s consideration.

19. The Tribunal considers that the relevant certificate is not a valid certificate as the description of the reasons for restriction, that is, that the relevant folios “contain information relating to an internal working document and business affairs” do not properly identify a basis for public interest immunity. There is no suggestion that the documents would harm the nation or public service by disclosure of the material.

20. As the Tribunal has found, on the evidence before it, that the certificate is invalid it has not given the certificate any effect in its determination.

21. The documents in ff.12-16 are copies of outgoing passenger cards signed by the applicants when departing Australia. The Tribunal considers that the relevant certificate is not a valid certificate as the description of the reasons for restriction, that is, that the relevant folios “contain information relating to an internal working document and business affairs” do not properly identify a basis for public interest immunity. There is no suggestion that the documents would harm the nation or public service by disclosure of the material. The documents have been signed and completed by the applicants and the contents are known to them. The material in the certificates is consistent with evidence given to the Tribunal.

22. As the Tribunal has found, on the evidence before it, that the certificate is invalid it has not given the certificate any effect in its determination. The material does not assist the applicants or detract from their claims.

    Assessment of Claims

23. The applicants’ claims are contained in the application for protection and the applicant wife’s statement [in] December 2014. The applicants were invited by the Departmental delegate to attend an interview on 25 June 2014 but did not attend.

24. The applicant wife’s written claims are rambling and discursive. They identify some specific claims but in other respects are vague, generalised and lacking in substance. Nevertheless the Tribunal has considered them and extracted specific claims.

25. The applicant wife also gave evidence concerning her claims at the Tribunal hearing held on 4 November 2016. Her husband did not attend the hearing as he was outside Australia at the time of the hearing. The applicant husband made no request to attend the hearing by conference telephone.

26. Essentially the applicant wife’s claims are that she fears harm from government authorities and Awami League supporters if she returns to Bangladesh because she was a member of the [particular] wing of Jamaat e Islami. She also fears harm from another property owner in [Town 1] as a result of a land dispute. She claimed that the other property owner was backed by her [sibling]. She claimed that the other property owner was an Awami League supporter and false cases have been brought against her. She also claimed that she contracted [a medical condition] through a [medical procedure].

27. The applicant claims that if she returns to Bangladesh she will be persecuted by the ruling party, prosecuted with false charges and she, her children and husband will be kidnapped or harmed.

28. Taking into account the written claims, documents and oral evidence of the applicant wife the applicant wife’s grievances appear to arise from a bitter land dispute with another landowner and her [sibling] in [Town 1] in 2009. The ensuing litigation and hostilities appear to have had a significant impact on her life. She also stated that she [contracted a medical condition] through a [medical procedure] and her diminishing health and [well being] has had an impact on the normally compassionate relationship between the husband and wife. She also complained about the disrespectful attitude of her husband’s family and the stress which she has suffered.

29. The Tribunal did not find the applicant wife to be a credible witness; she was highly evasive and her evidence was internally inconsistent. When discrepancies in her evidence were put to her she was not able to satisfactorily explain those discrepancies.

30. At the Tribunal hearing when asked about her recent travel the applicant stated that she had not travelled recently and her last travel was to [Country 2] in 2014. When questioned further about this she stated she could not remember any recent travels because she was taking so much medication. At first she stated she was taking medication for [a medical condition].

31. As the Tribunal was concerned whether she was fit to give evidence it asked for further details about her medication and suggested that the hearing be adjourned for her to get her doctor to provide evidence on the effect of her medication.  She then stated she and her [child] had been to [Country 1] recently.  She told the Tribunal she is seeing a [specialist] at the moment but has completed taking all her medication for [a medical condition] and when the Tribunal put it to her that she had just given evidence that she was taking medication for [a medical condition] she stated she had forgotten.  She then confirmed she was not taking any medication and was happy to proceed with the hearing.

32. She stated she had recently travelled together with her younger [child] to [City 1] because she and her husband had a large bank deposit in a bank in [City 1].  She claimed that she was in [City 1] for one month travelling from Australia to [another country] to [City 1] and then returning to Australia.

33. The Tribunal asked her if she had stayed in [City 1] for the whole time and she stated she did not wish to answer the question without her representative being there.  She stated that her representative had told her not to answer such a question. 

34. The Tribunal put it to her that it sounded as though she was concerned about how answer might impact on her other evidence and suggested that the hearing be adjourned for short period, that she call her migration representative and ask her when she was due to arrive at the hearing.

35. After the short adjournment the applicant told the Tribunal that her representative was not going to attend the hearing because it was too late and she had decided not to attend.  The Tribunal asked the applicant whether she wished to continue the hearing and she stated she wished to continue.

36. The Tribunal asked the applicant whether she had stayed in [City 1] for the whole period of her visit and she stated she had stayed in the home of a family friend in [City 1] and did not travel to Bangladesh during the period.  She stated her husband had travelled from Bangladesh to [City 1] to visit them.  During her visit to [Country 1] her eldest [child] stayed by [him/herself] in Australia as [he/she] was old enough to look after [him/herself].

37. With respect to her visit to [City 1], the Tribunal invited the applicant pursuant to s. 424AA of the Act to comment on /respond to information in the Department’s file that she had applied for permission to travel on a bridging visa with permission to travel in 2016 on the basis she and her [child] were going to visit her [sibling] in [Country 2]. She also provided extensive evidence to substantiate the planned trip to [Country 2] but ended up going to [Country 1] instead. The Tribunal put it to her it appeared she had given the Department false information about her intentions and that she had always intended to visit her husband in Bangladesh. She disagreed and stated she had intended to go to [Country 2] but could not get a visa so went to [Country 1] instead. She stated that she later advised the Department of the changed plans. When asked why she could not get a visa for [Country 2] she stated she could not manage the online application form.

38. She also stated that she had not travelled to Bangladesh but that she met her husband in [City 1] during that trip. After the hearing the applicant wife’s representative provided a copy of [airline] flight details for the applicant husband showing he had booked a flight from Dhaka to [City 1] [in] August 2016 and the applicant wife’s passport stamps showing arrival in and departure from [Country 1].

39. There is no evidence that the applicant wife travelled to Bangladesh during the trip to [Country 1]. Whilst the Tribunal has some doubts as to the whether the applicant returned to Bangladesh during this trip it accepts, for the purpose of the review, that she has not returned. However the Tribunal does not accept the explanation that the applicant changed her plans to go to [Country 2] after she obtained the bridging visa. It considers she provided this information to satisfy the Department that her application for permission to travel was not for the purpose of travelling to or near Bangladesh. It considers she had no intention of travelling to [Country 2] and her claim that she could not deal with the online application was not credible.  The Tribunal considers that the applicant wife has been prepared to give misleading information to the Department in relation to her migration status and this is consistent with its earlier finding that she was not a credible witness.

    Background

40. The applicants were all born in Bangladesh. The applicant wife is [number] years old and was born in [Town 1] and the applicant husband is [number] years of age and was born in Dhaka. The applicant wife attended school and university in Dhaka and the applicant husband attended school and college in Dhaka. The applicant husband and wife married [in] 1995 and they have [number children]. After her marriage the applicant wife moved to join her husband in Dhaka. 

41. The family most recently lived in [Neighbourhood 1], Dhaka. The applicant husband owns [an industrial] business ([business name]) and the applicant wife worked as [an office bearer] in that company from 2006 to 2014 before she left Bangladesh. The applicant wife also cared for the applicant children. The applicant husband and his [siblings] own the family [business] and it is still operating. The applicant wife and her husband own a number of properties in Dhaka and in [Town 1].

1. The applicant wife’s parents are still alive and live in [Town 1] which is [number] kms from Dhaka.  Her [relative] lives for [several] months of the year in a mosque in [Neighbourhood 2], a suburb of Dhaka.  She explained that he is [number] years of age and no longer does any paid work but takes care of people coming from overseas to spend time at the [Neighbourhood 2] mosque.  She said these people had joined Jamaat and he takes care of them.  When questioned about Jamaat she stated that the Jamaat her [relative] is involved in is a different organisation to the political organisation known as Jamaat e Islami.  Jamaat is a religious group and her [relative] distributes food to the overseas visitors and is regarded as a carer.  She stated that the overseas visitors spend their time saying prayers and talking about Allah.

2. She has [four siblings]; one [sibling] lives in Bangladesh, one [sibling] lives in [Country 3], one [sibling] lives in [Country 4] and one [sibling] lives in [Country 2].

3. The applicants arrived in Australia travelling on visit visas [in] November 2014. The applicant wife claimed that they had originally intended to visit only but then decided to apply for protection after she found out there was a false case brought against her. She enrolled the children in Australian schools at the beginning of 2015.

4. The applicant husband left Australia [in] March 2016 on a bridging visa which gave him permission to travel. He is now living in Bangladesh and due to the expiration of his bridging visa he has been unable to return to Australia. The applicant wife has also recently travelled overseas on a bridging visa but was able to return to Australia before the expiration of her bridging visa. At the time of the hearing she and her [children] were present in Australia.

   The land dispute in [Town 1]

5. In the applicant wife’s written claims she stated that she had obtained a block of land from her [relative] in [Town 1] and her husband purchased another block of land and transferred it to the applicant wife. The owner of the neighbouring land was [Mr A] and he was aligned with the ruling government party.

6. She claimed that [Mr A] lodged a case against the applicant husband to embezzle the husband’s block of land. The court process was prolonged and in the end she and her husband gave up their case.

7. Her husband gave her power of attorney in 2007 to deal with the case that [Mr A] had lodged and [Mr A] was angry as she was a traditional Muslim lady who had come out of the home to deal with the case.

8. The applicant wife had many bitter arguments with [Mr A] and he expressed his anger and aggressiveness to her as she was a Muslim woman he regarded as unequal and he never accepted her as an opponent.

9. In May 2009, the applicant husband and wife won the court case and a decree was issued from the court in favour of them. When [Mr A] found that her husband had given her an entitlement to use a block of land for the purpose of building [new business premises] he became very angry and upset with her. 

10. He expressed his anger upon her when she started putting in the pillars for the foundations of the [business premises]. [Mr A] and some of his hooligans attacked her with [specified objects] and one of them [inflicted injuries] from the back.  She fell down on the ground and became unconscious.  She was taken to [a hospital in Dhaka].

11. She [had an existing medical condition] and in the hospital doctors [treated her injuries]. Due to the [specified] injury [her existing medical condition worsened].  Her recovery process was delayed and she returned to consciousness after 3 days. 

12. When she became conscious they decided to lodge a case against the attackers but the case did not hold water because she was not involved with the current ruling party.

13. She was dependent on her monthly salary to look after herself and to build the [business premises].  She applied for government allocation which she acquired after long hardship.  She could not proceed with the [business] because [Mr A] engineered a series of conspiracies and threats and indicated he would file cases against her.  He was trying to accuse her and he convinced the neighbourhood that she had been organising many unacceptable activities including [illegal activities] using the [business premises].  He started lodging false intentional cases against her family.

14. When she was admitted to hospital and taken for [a medical procedure] she received [an infection] and later found out that she had contracted [a medical condition].  She had to shut down her [business] and decided that the family had to leave Bangladesh for the sake of their safety, security and lifesaving measures. 

15. She also stated she was very ill and needed to have medication in the form of an injection for 6 months.  She believed the medication had harmful side-effects on her body.

16. As a result of all these things she and her husband had arguments and debates and she became disappointed and depressed.

17. At the Tribunal hearing the applicant told the Tribunal she had a problem in 2009 and as a result a false case has been lodged against her.

18. She explained that in 2006 her husband bought land from a person in their village with the intention of building [new business premises].  Under the Bangladeshi system relatives of a seller are given a first option to purchase a plot of land. A relative of the seller of the plot, [Mr A], objected to the sale to the applicant husband. [Mr A] started a civil case and the applicant husband gave her power of attorney to run the case as she was more knowledgeable about land disputes. The applicant wife and husband won the civil case and eventually ended up with 3 plots of land, their own plot, a plot bought from [Mr A]’s [sibling] and a third plot owned by the applicant wife’s [relative] and gifted to the applicant wife. [Mr A] was unhappy because the applicant and her husband had bought the land; the applicant wife’s [sibling] was unhappy because his[/her] [relative] had given the land to the applicant wife. So [Mr A] and her [sibling] tried to stop the applicant husband and wife building the [business premises] on the land and appealed against the original decision. The applicant stated that [Mr A] was a supporter of the Awami League.

19. One day in 2009 when the applicant wife was at the building site she and [Mr A] got into an argument and he [inflicted injuries] with a[ specified object]. She had to go to hospital for treatment for the [wound]. After she received treatment she made a complaint that [Mr A] and his associates had assaulted her. She [suffered a worsening of her existing medical condition] as a result of the assault. Whilst she agreed the police followed up the complaint the applicant stated they delayed taking any action because [Mr A] was an Awami League supporter.

20. After this incident she and her husband remained living in Dhaka and her [relative] completed the construction of the [business premises] in the village. The dispute over land ownership continued and the applicant wife and her husband could not operate the building as a[business]. The appeal has not yet been resolved.

21. The Tribunal accepts the evidence of the applicant wife that she and her husband purchased land in [Town 1] and that her [relative] also gifted her plot of land for the purpose of building [new business premises]. The applicant provided photographs of a multistorey building which she stated was the building proposed for the [business]. She also stated that due to the continuing litigation the centre was not being used as a[business].

22. The Tribunal accepts that the purchase of the land and the gifting of her [relative]’s plot provoked a dispute between a neighbouring landowner, [Mr A] as well as her [sibling] who was aggrieved by her [relative]’s gift to her. This dispute set off a continuing series of court cases which, according the applicant wife, are yet to be finally resolved.

23. The applicant wife stated that they were successful in the original civil case relating to the land dispute, that a further case was resolved in their favour in 2013 but that [Mr A] and others, including her [sibling], appealed the decision and the matter is still subject to appeal. Whilst the applicant’s evidence was confusing and somewhat obscure, the Tribunal accepts the evidence that the land dispute may still be subject to some form of appeal and is not yet resolved.

24. The applicant claims that [Mr A] is an Awami League supporter and that he will be able to call on his political connections to support his case. However, the evidence suggests that the applicant wife and husband have, so far, been the successful parties in the land dispute during a period when the Awami League has been in power[3]. This is contrary to the claims made by the applicant wife that [Mr A] and his associates have the benefit of Awami League sponsorship and will be successful in the land dispute.

    [3] Bangladesh Country Profile BBC online >

    The Tribunal accepts that in 2009 she and [Mr A] argued at the construction site of the [business] and as a result the applicant wife was [struck] and had to be admitted to hospital for a [specified] injury. The documents provided and the evidence given by the applicant wife indicates that the Bangladeshi police took action against [Mr A] and his associates for their part in the assault. The applicant wife lodged a First Information Report setting out the circumstances of the land dispute and the consequent assault. Further documents indicating that the charges were still pending in 2011 were provided by the applicant. The Tribunal does not accept that police delayed taking action in relation to the assault. They accepted a First Information Report in 2009 and charges were laid against [Mr A].

25. The applicant claimed that the charges against [Mr A] did not “hold water” and it is not clear to the Tribunal whether those charges were dismissed or are still pending. However, given the evidence before it, the Tribunal finds that the applicant made a complaint to police about the assault in 2009, [Mr A] and others were charged in 2009 and charges remained pending until at least 2011.

26. The Tribunal accepts that, as a result of the assault, the applicant wife was admitted to hospital where she received medical treatment. She also claimed in writing that [her existing medical condition worsened] due to her injury. The documents show that she was admitted to hospital for her [specified] injuries [in] 2009 and that she was later admitted to hospital [in] 2009 for [another medical condition], however, there is no medical evidence indicating that the assault caused the [condition]. However, the Tribunal considers that it is reasonable the applicant drew this conclusion given the timing of the events.

27. After the assault by [Mr A] in 2009 the applicant wife stated that she and her husband lived in their home in Dhaka on a full time basis and that her [relative] became responsible for completing the construction of the [business premises].

28. The Tribunal considers that the land dispute is a private dispute between the applicant wife and husband and [Mr A] and the applicant wife’s [sibling]. It does not accept that the dispute, police actions or the court outcomes are related to the political affiliations of the applicant wife and husband or [Mr A].

    Was the applicant a member of Jamaat I Islami?

29. In her statement of [December] 2014 the applicant claimed she was an active member of the Jamaat e Islami political party. She claimed that her involvement in the party resulted in political and judicial aggression against her. She referred to the conviction and punishment of high level members of Jamaat e Islami for war crimes. She also referred to an organisation known as Gano Jagoran Moncho which was advocating the arrest of senior Jamaat e Islami leaders for war crimes.

30. She provided a number of documents to support her claims of being actively involved in the party. These included a Membership Card of Islami Chartri Sena Shibir (a student wing of the group), a letter from a person described as [an office bearer] of the Islami Chatra Shena Shibir [area 1] branch, Dhaka and a list of persons said to be [office bearers] of that branch in 2011-2012 including the applicant wife.

31. At the Tribunal hearing the applicant stated she feared returning for social and political reasons. By this she explained that she meant she feared harm from living in society and harm because of her association with Jamaat e Islami.

32. She claimed when she was a student in 1995/1996 she was a general member of the student wing of Jamaat e Islami and [an office bearer]. The Tribunal put it to her that the country information indicated that Jamaat e Islami prevented women from having active roles in the party and they did not field female candidates for election. She agreed this was correct.

33. Country information indicates that the registration of Jamaat I Islami was cancelled in 2013 due to its inability to meet the requirements of the Election Commission because, amongst other things, it discriminated against non-Muslims and the party did not field female candidates. The latest Country Report on Bangladesh by the Department of Foreign Affairs in noted in July 2016 that;

    Jamaat-e-Islami (JI)

    3.50 JI is the largest Islamist party in Bangladesh, with historical strongholds in Rajshahi and Chittagong. Many JI leaders and activists participated in Pakistani military operations during the 1971 war and have been implicated in war crimes, including mass murders, rapes and forced conversions to Islam. This underpins JI’s vocal opposition to the ICT, which the party has sought to characterise as an attack on Islam and Bangladesh’s Muslim identity.

    3.51 JI members have held ministerial roles under previous BNP Governments but the party has been circumscribed during the last two AL Government terms, and faces the prospect of an effective ban by the continuing ICT. The High Court in August 2013 deregistered JI as a political party on the grounds that provisions in its charter preventing women and non-Muslims from holding political or bureaucratic posts were inconsistent with the Constitution.

    3.52 JI’s student wing, the Islami Chhatra Shibir (ICS), has an Executive Council and Secretariat and is organised into six divisions (Dhaka, Chittagong, Syhelt, Rajshahi, Khulna and Barisal)

34. When asked to explain her role in Jamaat e Islami she claimed that when she was living at her husband’s family home in about 1996/1997 the wife of [Mr B][4] “[nickname]” used to come to the home and talk about Jamaat e Islami and encourage support for the group. The applicant wife used to go to these talks; she also previously heard about Jamaat when she was in college. After that she and her husband bought a flat in [Neighbourhood 1] and the office of the Jamaat was in [location].

    [4] [information deleted].

35. She claimed when she was in college she talked with the student wing, Chatra Shibir. She stated that she had nothing else to say about her activities. When asked about her current knowledge about the group she stated she did not have any current knowledge.

36. Despite providing copies of documents suggesting she was an office bearer in a local branch of Jamaat e Islami in 2011-2012 the Tribunal does not accept that the applicant wife was a member or held any positions in the Jamaat e Islami. When questioned at hearing about her involvement she stated she had been involved in discussions and a support group for Jamaat e Islami in 1996/1997 but did not make any claims about any recent involvement. She agreed that Jamaat did not field female candidates for election or official positions. The country information suggests that there are some female consultative bodies[5] in the Jamaat e Islami but there is no evidence of active female political involvement in elections or in the political process. At the hearing she made no claims of any recent active involvement with the group.

    [5] Political Parties in Bangladesh CDP-CMI August 2014 p 26 \\sydnetapp2\REFER\Research\2014\Web\CPD-CMI.pdf

37. In these circumstances the Tribunal has not placed any weight on the documents provided to support the applicant wife’s written claims of recent involvement in Jamaat e Islami. The Tribunal notes the country information referred to in this decision on the prevalence of false documents in Bangladesh.

38. The Tribunal does not accept that the applicant wife was a member or an active supporter of Jamaat e Islami at the time she left Bangladesh or at any time beforehand. It accepts she may have been sympathetic to its political ideology but does not accept she was in any way involved in the party.

    Has a false case been lodged against the applicant wife?

39. In her written statement the applicant claimed that [Mr A] had lodged false intentional cases against the applicant and her family. She claimed that allegations of [illegal activity] in the [business premises] had been made against her and these allegations damaged her social and professional reputation.

40. Her written claims did not provide any specific information or particularise the false cases she to which she referred. The written statement setting out the applicant wife’s claims in relation to the false cases was not specific in its claims.

41. Prior to the Tribunal hearing the applicant wife lodged an English translation of an Arrest Warrant said to have been made under “s.75 of the Criminal Action Rule” to [Neighbourhood 1] Police Station with the applicant wife listed as the accused person. The document was dated [August] 2015 at the end of the document.

42. At the Tribunal hearing the applicant wife gave evidence that she, the applicant husband and the children came to Australia on a visit arriving [in] November 2014. She claimed that they had intended to visit Australia for 4-6 weeks but she changed her mind about returning to Bangladesh when she found out there was a case against her. She then enrolled her children in schools in Australia at the beginning of 2015. She claimed that she found out there was a case against her about [days] after she arrived in Australia ([November] 2014). She claimed she was told that the police had come to the front of her home in Dhaka and were looking for her. 

43. The Tribunal asked her when she was wanted for arrest and at this point she looked down at the documents in front of her and spent some time reading them. She looked up but did not respond to the Tribunal’s question.

44. When asked about the case brought against her she stated that it was a political case and based on politics. The Tribunal questioned what criminal charge had been made but the applicant was not able to answer this question.

45. The Tribunal asked her to explain why the arrest warrant she had provided to the Tribunal was dated [August] 2015, some 9 months after she claimed police came to her home looking for her and when she was told she was wanted for arrest.

46. She stated that she got this document when she was in Australia and did not know anything about it; she did not know the reason behind it. She claimed that her [relative] obtained the document from the [Neighbourhood 1] Police Station. The Tribunal put it to the applicant that she had given evidence that she became aware she was wanted for arrest in [November] 2014 but the arrest warrant document was dated August 2015. She stated that the arrest warrant came after the case was entered. The Tribunal put it to her that the police could not arrest her in November 2014 without an arrest warrant. She claimed that she heard about the attempt to arrest her through acquaintances.

47. The Tribunal put it to her that the country information indicated that there was a high level of document fraud in Bangladesh. It put to her that there were agents in Bangladesh who produced false documents for use in visa applications. This meant that documents from Bangladesh were not reliable sources of evidence. This did not mean every Bangladeshi document will be false but the Tribunal needed to consider the possibility that it was not a genuine document. She stated she did not know anything about this kind of thing.

1. Recent country information produced by the Immigration and Refugee Board of Canada on the prevalence of false documents indicates there is a high level of document fraud and use of false documents in applications for asylum[6]. It also notes

   A 2013 report on migration trends in Bangladesh, India and Nepal, produced by the Asia Foundation, a San Francisco based non-profit international development organization that focuses on development issues in Asia (The Asia Foundation n.d.), states that "informal intermediaries, or dalals," play a significant role in both "irregular and regular migration" between these countries (ibid. 2013, 1). Thomson Reuters Foundation, a UK charitable organization funded by media firm Thomson Reuters (Thomson Reuters Foundation n.d.), reported in a 2013 article that Bangladeshi migrant workers pay "unlicensed labour brokers - some linked to organised crime groups - large sums of money for travel documents and employment papers" (ibid. 19 Nov.2013). The ILO report similarly states that in Bangladesh, some "recruiting agents, illegal sub-agents, and travel agents (also called 'tour operators' in Bangladesh)" are involved in producing "fake passports, job contracts, [and] BMET [Bangladesh Ministry of Expatriates' Welfare and Overseas Employment] clearance certificates" (UN 2014, 36).

   The May 2015 press release by the US Embassy in Dhaka states that consular officials "often encounter legitimate travelers who place their trust in an unscrupulous broker" and who are then denied a US visa and subsequently arrested "for violating Bangladeshi law" (US 5 May 2015). The April 2014 US press release about the arrest of five visa applicants for document fraud [see Section 2] states that they "admitted [to] using the services of a broker who allegedly instructed them to lie about their purpose of travel and manufactured fraudulent documents to aid in the deception" (ibid. 6 Apr. 2014).

   A 2012 report produced by the Centre for Policy Dialogue (CPD), a Bangladeshi civil society think-tank focused on research and policy advocacy concerning economic development (CPD n.d.), states that "[a]necdotal information suggests that there are more than 50,000 middlemen [dalals] currently active in Bangladesh" (ibid. Feb. 2012, 102).[7]

   [6] AdHoc Query on assessment of authenticity of documents submitted by asylum seekers from Bangladesh 15 December 2014 Bangladesh: Reports of fraudulent documents (2011-2015); 20 August 2015; BGD105263.E

   Research Directorate, Immigration and Refugee Board of Canada, Ottawa

2. An earlier report by the Canadian IRB in 2010 noted

   In 7 September 2010 correspondence with the Research Directorate, an official at the High Commission of Canada to Bangladesh stated that

   “There is a significant prevalence of fraudulent documents [in Bangladesh] including passports, birth certificates, bank statements, taxation documents, business documents, school documents, marriage certificates. If we ask for it, it can be produced.”

   The Canadian Official added that "[t]here is no difficulty at all for anyone to obtain these documents. Quality varies with prices paid." (Canada 7 September 2010).[8]

   [8] Bangladesh: Reports of fraudulent documents 20 September 2010 BGD103532.E Research Directorate, Immigration and Refugee Board of Canada, Ottawa

3. Country information also indicates that warrants are issued according to the procedures set out in the Code of Criminal Procedure 1898[9]. There do not appear to be any regulatory rules referred to as “Criminal Action Rule” relating to powers of arrests and detention.

   [9] [9] The Code of Criminal Procedure 1898 (Complete version), Government of the People’s Republic of Bangladesh,  22 March,

4. Given the discrepancy between the applicant wife’s evidence that she heard from acquaintances that police had attempted to arrest her in Bangladesh in November 2014 shortly after she left Bangladesh and the date of the arrest warrant (August 2015), her inability to explain how the documents were obtained or what she was charged with as well as the country information on the ease of obtaining false documents and prevalence of such documents in asylum claims the Tribunal has not placed any weight on the arrest warrant to support the applicant wife’s claims that there are any outstanding false cases or warrants of arrest against her.

5. The Tribunal does not accept that an arrest warrant was issued for the applicant wife’s arrest in either November 2014 or August 2015.

   Has the applicant wife contracted [a medical condition]?

6. The applicant claimed she contracted [a medical condition] in 2009 through a [medical procedure] in Bangladesh and this has had a significant adverse effect on her health. She stated she was very ill and had to have injections of medication for 6 months and she considered the medication was harmful to her health. She claimed that her illness had a consequential and adverse impact on her relationship with her husband and his family.

7. At the Tribunal hearing the applicant initially claimed that she was still taking medication for [a medical condition] but later in the hearing stated that she had completed taking medication for [the medical condition]. There was no medical evidence provided showing the applicant wife’s [medical condition] status. On the evidence provided the Tribunal finds that the applicant had contracted [the medical condition] at the time she [underwent medical procedures] in 2009 but that she was treated with injections and no longer has [an active medical condition].

   Other claims

8. In her written claims the applicant wife referred to the applicant husband as a very well renowned businessman. She stated that the residential area in which her husband conducted his business is located in the constituency held by a well-known Awami League [politician] [Mr C]. She claimed he was very powerful, no one could speak out about him and he was responsible for a number of killings in the area. The applicant wife claimed she feared her husband would be targeted by [Mr C] because her husband was a supporter of the Bangladeshi Nationalist Party (BNP). She also claimed that her husband had a previous dispute with Ms [D] who was a former Awami League [politician].

9. At the hearing the applicant wife made no reference to claims that she or her husband might be harmed by [Mr C], [Ms D] or their supporters. No claims were made of any previous mistreatment or threats of harm emanating from these persons. The claims appear to be based solely on the claimed political allegiances of the applicant husband as a BNP supporter as opposed to the Awami League associations of these persons. There was no further evidence provided to support these claims and the Tribunal does not accept that the applicant husband or wife have been harmed or threatened by these persons

   The husband’s current residence.

10. The applicant husband first arrived in Australia in November 2014 together with the rest of his family. He then travelled outside Australia on bridging visas in [2015] and January 2016.

100.   He last left Australia [in] March 2016 on a bridging visa which expired whilst he was outside Australia and he does not have a visa which entitles him to return. At the Tribunal hearing the applicant wife stated that her husband was currently living in Bangladesh. She claimed that he was living in [location] which was an area located close to his factory. She stated that he had to return because his [relative] died in [City 1] and he had to return [his/her] body to Bangladesh for burial. The Tribunal pointed out that the death certificate provided by the applicant wife to the Department indicated that the applicant husband’s [relative] was pronounced dead when she was brought into a hospital in Dhaka [in] March 2016.

101.   She stated she had made a mistake about the place of death and had not really asked where her husband’s [relative] had died.

102. Under s.65(1) of the Act a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. Section 36(2) of the Act provides a criterion for protection visa is that the applicant for the visa is a non-citizen in Australia.

103.   The Tribunal explained to the applicant wife that one of the requirements for the grant of a protection visa is that an applicant for the visa must be in Australia at the time of grant. As her husband was not in Australia and unlikely to return in the near future he may not be eligible for the grant of the visa. She stated she understood the consequences and that he may not be eligible for the grant of a protection visa.

Does the applicant wife meet the refugee criterion?

104.   The applicant stated she feared returning for social and political reasons. By this she meant she feared harm from living in a society and harm because of her association with Jamaat e Islami. She stated they could do some many things to her. The Tribunal asked her to give specific details of the reasons for her fears. She stated they could get her for anything.

105.   The Tribunal accepts that the applicant wife lived in Bangladesh until she departed Bangladesh for Australia in November 2014 with the applicant husband and their [children].

106.   The Tribunal does not accept that the applicant will face a real chance of serious harm for reasons of her political opinion if she returns to Bangladesh. She claimed, but the Tribunal does not accept for reasons set out above, that she was a member or active supporter of Jamaat e Islami at any time before she left Bangladesh.

107.   The Tribunal does not accept her claim that government authorities or Awami League activists will harm her or her family if she returns to Bangladesh because of any Jamaat I Islami associations. The applicant’s husband has returned to Bangladesh and there is no evidence he has suffered any harm following his return as a member of the applicant wife’s family.

108.   It also does not accept that she faces harm from government authorities or Awami League activists because she was involved in a land dispute with [Mr A], who she claimed was an Awami League supporter. The evidence suggests that she and her husband have been involved in a long running land dispute with [Mr A] and that they have pursued their legal rights with some energy. The evidence indicates they have been successful in the land dispute up to this point but that appeal proceedings are still pending. The Tribunal does not accept that the claimed Awami League associations of [Mr A] have had any adverse impact on the applicants or the outcome of the land dispute.

109.   The Tribunal accepts that the applicant wife was assaulted by [Mr A] and some associates in 2009. The Tribunal considers that this assault arose from a private dispute concerning the disposition of land in [Town 1]. The applicant wife was taken to hospital for treatment, the local police acted on the applicant wife’s complaint and charged [Mr A] with an offence and the evidence indicates that it was still before the courts in 2011. It is not clear whether the charges were dismissed, however, the Tribunal considers that the local police took action to provide state protection and there is no evidence to indicate that they failed to provide adequate protection for any Convention related reason. There is no evidence indicating that the claimed Awami League connections of [Mr A] have resulted in the applicant wife or her family members being mistreated after the assault.

110.   The Tribunal does not accept that the Awami League will take any action to cause the applicant wife harm if she returns to Bangladesh due to the land dispute. She claimed that the people who were in dispute over the land were supporters of the Awami League. This may be so, but the Tribunal does not accept that the applicant has had any political involvement which would come to the attention of the Awami League or its activists. Further the evidence indicates that the applicant wife and husband continued to live in their home in Dhaka from 2009 until they departed Bangladesh and arrived in Australia in November 2014. On the evidence before it the Tribunal finds that they did not suffer any mistreatment or harm during that period and they actively pursued their legal rights through the court system for a number of years following the incident in 2009. On the evidence of the applicant wife the litigation has not yet been resolved.

111.   The applicant wife claimed at the Tribunal hearing that a false case had been lodged against her some [days] after she arrived in Australia in November 2014. She provided a Bengali document and English translation to support that claim. For reasons set out above the Tribunal does not accept that [Mr A] and his associates have arranged for a false case to be lodged against her and that a warrant of arrest has been issued for her arrest. The Tribunal does not accept she will face a real chance of being arrested if she returns to Bangladesh now or in the foreseeable future for any Convention related reason.

112.   The applicant wife has given evidence that the applicant has returned to Bangladesh and is currently living in [location] and there is no evidence or claim that he has suffered any harm on his return. He is continuing to operate his [company]. The applicant wife claimed that his situation was different to her situation but the Tribunal does not accept this evidence. It accepts that the applicant wife may not wish to return to Bangladesh, however, the Tribunal does not accept that the applicant will face a real chance of serious harm for reasons of actual or imputed political opinion if she returns to Bangladesh now or in the foreseeable future.

113.   The applicant claimed that she had contracted [a medical condition] in 2009 and received treatment for this in Bangladesh. At the Tribunal hearing she claimed that her health was poor and she was receiving medication for [a medical condition], then she claimed she was receiving [specified] treatment but when questioned further stated she stated she was not currently taking any medication. There is no evidence of any current serious illness and the Tribunal does not consider she will face harm as a member of a particular social group, being persons who have serious [medical conditions].

114.   Accordingly, and taking all of the above into account the Tribunal is not satisfied that the applicant wife has a well-founded fear of persecution for reasons of her actual or imputed political opinion, membership of a particular social group or any other Convention related reason.

Does the applicant meet the complementary protection criterion?

115.   The Tribunal has considered whether, on the evidence before it, that there would be a real risk that the applicant wife will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.

116.   The Tribunal accepts that the applicant wife has been involved in a land dispute with [Mr A] in 2009 and that she was assaulted and injured in that dispute. She claims that she fears she and her family will suffer harm if she returns to Bangladesh because of her role in that land dispute however the Tribunal does not accept she or family members will suffer any harm for this reason if they return to Bangladesh.

117.   It considers that she and her husband took action to prosecute [Mr A] and his associates for the assault and she and the applicant husband have pursued a civil action in the Bangladeshi court system over the disputed land.

118.   The Tribunal has found that the applicant wife and husband have not suffered any further mistreatment at the hands of [Mr A] or his associates following the assault in 2009 and before their departure from Bangladesh. Further the applicant has returned to Bangladesh and there is no evidence he has suffered any harm following his return.

119.   With respect to the support given to the applicant wife following the assault the Tribunal considers she received appropriate and adequate medical treatment in Bangladesh. She also contracted [a medical condition] through a [medical procedure], however, the evidence indicates that the applicant wife was treated for this condition and is not receiving any further treatment. On the evidence before it, the Tribunal does not consider that the applicant is in need of further treatment for any serious or [other] medical conditions. In any event it appears she had been provided with adequate and competent medical care in Bangladesh in the past and there is no evidence that such care would not be available in the future if she returned to Bangladesh.

120.   The Tribunal does not accept that the applicant wife faces a risk of being arrested on her return to Bangladesh as, for reasons set out above, it does not accept that a warrant of arrest has been issued.

121.   The Tribunal does not accept that that the applicant or her family are at any risk of harm from [Mr A], or his associates, her [sibling] or Awami League activist if she returns to Bangladesh.

122.   There is no credible country information indicating, and the Tribunal does not accept, that the applicant wife would face a risk of being arbitrarily deprived of her life, that the death penalty would be carried out on her, that she will be subjected to torture, that she will be subjected to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

123.   Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant wife being removed from Australia to Bangladesh there is a real risk that she will suffer significant harm: s.36(2)(aa).

Conclusion

124.   For the reasons given above the Tribunal is not satisfied that applicant wife or children are persons in respect of whom Australia has protection obligations. Therefore the applicant wife and children do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

125.   The Tribunal is satisfied that the applicant husband is not in Australia. Therefore he does not satisfy the requirements of s.36(2) of the Act and cannot be granted a protection visa.

DECISION

126.   The Tribunal affirms the decision not to grant the applicants Protection visas.

Louise Nicholls
Senior Member  1 March 2017

ATTACHMENT A

RELEVANT LAW

127. 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

128.   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).

129.   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.

130.   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.

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

132.   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.

133.   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.

134.   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.

135.   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.

136.   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.

137.   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

138.   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’).

139.   ‘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.

140.   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

141.   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.

Member of the same family unit

142.   Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include .