1614300 (Refugee)

[2018] AATA 4863

1614300 (Refugee) [2018] AATA 4863 (16 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614300

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Nathan Goetz

DATE:16 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 October 2018 at 2:21pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – United People’s Democratic Front activist – threats from the Parbatya Chattagram Jana Samhati Samti – political violence – fear of arrest and torture – fear of killing – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 424AA, 426A, 438, 499
Migration Regulations 1994, Schedule 2

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. This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Bangladesh and applied for the visa on 16 September 2015. The delegate refused to grant the visa on the basis that he did not meet the criteria for a protection visa. The applicant subsequently lodged an application for a review of this decision with the Tribunal on 6 September 2016. He included the decision record with this application for review.

   CRITERIA FOR A PROTECTION VISA

3. 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, he or she 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.

4. 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 because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

7. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.

   PROCEDURAL HISTORY

9. By letter dated 16 July 2018 which was sent to the review applicant’s migration agent, the review applicant was invited to attend a hearing before me on 6 September 2018.

10. By letter dated 5 September 2018, the Tribunal indicated that I had now become unavailable on 6 September 2018 and that I proposed to hold the hearing on 7 September 2018. The migration agent agreed to this postponement.

11. By letter dated 6 September 2018, the Tribunal indicated that I was also unavailable on 7 September 2018 and that the hearing would now be held on 11 September 2018. The migration agent confirmed that this was a suitable date for the agent and the review applicant. On that date, both the migration agent and the review applicant appeared before me for a hearing regarding the review applicant’s protection visa application.

12. Before commencing the hearing, the review applicant indicated to my hearing attendant that he was unwell and did not wish to proceed with the hearing that day. This information was relayed by the attendant to me. Once I commenced the hearing, the review applicant told me that he was suffering from mental health problems and was not in the best position to give evidence to the Tribunal. The review applicant did not provide any documents about his medical condition to the Tribunal, but told the Tribunal that he started to feel unwell the night before, was having difficulty concentrating, was feeling withdrawn and had depression and anxiety.

13. He told the Tribunal that he had been diagnosed with depression and anxiety in Bangladesh, where he was advised that if he did not stay in a calm mind or was in stressful situations, this would cause problems for him.  The review applicant told me that he had not seen a doctor or a mental health practitioner during his time in Australia but was seeking assistance from the family he was living with who were helping him with his issues.  He had been living with this family for about one month. The family he was living with was his [cousin], her husband [Mr A], their [son] and [daughter]. It was [Mr A] who was providing him assistance in managing his condition, such as going out to do yoga and other physical activities. [Mr A’s] expertise came from the fact that his [son] also suffers with depression and anxiety (to the extent he was hospitalized [and] [Mr A] was able to provide the review applicant with some direction about managing his own mental health problems. The review applicant told the Tribunal that he was going to get some professional help to address his problems to avoid a future situation where he was not in a position to give evidence to the Tribunal.

14. I postponed the hearing until 16 October 2018 at 8.30am, which was a period of 5 weeks. The review applicant and the migration agent agreed to this time. The review applicant told me that during this time, he would get some professional assistance and treatment. He did not have a Medicare card (as I understand it, this could not be issued because the visa applicant is on a bridging visa that has no work rights) so he would not be able to access the public health system. The review applicant told the Tribunal that the family he was staying with would meet his treatment costs, and he would also be able to cover costs associated with treatment because every two to three months his parents in Bangladesh sent him [money] to meet his expenses. The postponement would allow the review applicant to obtain treatment for his medical condition, and I asked that the review applicant to provide me with a medical report if he wished to rely on his medical condition as a reason for any deficiencies in his evidence to the Tribunal. The review applicant said he would do so.

15. Before postponing the hearing, the Tribunal advised the review applicant and the migration agent that a certificate under s.438(1)(a) of the Act had been issued in regards to information on the departmental file, and the migration agent was invited to make submissions about the validity of this certificate. I expressed my view that as the only ground cited in the certificate was that ‘the disclosure of this information would be contrary to the public interest because the folios contain information relating to an internal working document and business affairs’ was not a ground for public interest immunity, and that as the claimed immunity did not identify the harm that would be caused by such disclosure, the certificate appeared invalid and the information supposedly covered by the certificate would be treated as the rest of the information on the file.

16. The migration agent’s told me that he did not wish to make a submission about the validity of the certificate. In my judgment, the certificate was invalid for the reasons outlined. I proposed to treat the information purportedly subject to the certificate as the rest of the information on the file. If I was to rely on any of this information unfavorably against the review applicant, I would put it to him under the procedure contained in s.424AA of the Act.

17. The matter was to resume on 16 October 2018 at 8.30am for a three hour hearing. A new hearing invitation had been sent by letter dated on 11 September 2018. The same day, a completed hearing response was received by the Tribunal which indicated that the review applicant and his migration agent would be attending the hearing. SMS reminders about the hearing were sent on 9 October 2018 and 15 October 2018 to the mobile number which had been provided as the contact number for the review applicant, although the Tribunal notes the SMS messages bounced back.

18. On 15 October 2018 at 1.19pm, the migration agent emailed the Tribunal to advise that he had not received any response from the review applicant for the past two weeks ‘up until today’. The migration agent wrote that it was very hard for the migration agent to represent the review applicant because the review applicant was not responding to the migration agent’s phone calls and messages to prepare for the hearing on 16 October 2018. The migration agent wrote that this morning (15 October 2018) the review applicant responded to the migration agent’s phone call and advised the migration agent that the review applicant did not need a migration agent to assist him. The review applicant informed the migration agent that the review applicant would attend alone for the hearing at the Tribunal. The migration agent confirmed that the migration agent would not attend the hearing and advised that the migration agent would not be presenting anything further on behalf of the review applicant. The migration agent advised the Tribunal to send all future correspondence to the review applicant directly.

19. On 15 October 2018 at 2.15pm the migration agent sent an email directly to the review applicant but copied the Tribunal into this correspondence. The migration agent attached a ‘Change of Contact Details’ form and asked that the review applicant to print the form, complete it, and send it directly to the Tribunal. The Tribunal has never received a completed ‘Change of Contact Details’ form from the review applicant.

20. I am satisfied that the review applicant was properly notified of the hearing date of 16 October 2018. The review applicant was present when the hearing was adjourned from 11 September 2018, was sent a new hearing date invitation which confirmed this date, and the review applicant advised his migration agent that he would attend the hearing (according to the migration agent’s email to the Tribunal). SMS notifications were sent to the number for the review applicant, and it is not the Tribunal’s fault that those messages bounced back. It is the review applicant’s obligation to advise the Tribunal of any change of his contact details. No request for a postponement was received from the review applicant, nor was there any further documentation received from the review applicant since the hearing on 16 September 2018. There is nothing before me which provides an explanation for the failure of the review applicant to appear at the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. As the review applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear, I have decided to make my decision on the review without taking any further action to enable the review applicant to appear before me pursuant to s.426A of the Act.

    Findings and Reasons

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

23. The mere fact that a person claims a fear of persecution for a particular reason does not establish either the genuineness of the asserted fact or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, because a person claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy me that all of the statutory elements are made out. Although the concept of an onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him.

24. The Tribunal has significant problems with the applicant’s claims. The evidence presented by the applicant is not sufficiently detailed to enable the Tribunal to be satisfied that the review applicant faces a real chance of persecution in Bangladesh for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion),  or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the review applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.

25. The review applicant has provided insufficient information regarding how and why he came to become involved in local politics, how he became involved specifically with the United People’s Democratic Front (UPDF) and why he supported that particular political party, and has failed to provide information about the specific political activities the review applicant allegedly undertook. The review applicant also failed to provide sufficient information about why a rival political party Parbatya Chattagram Jana Samhati Samti (PCJSS) is opposed to the activities of the UDPF, from whom he received warnings to stop his political activities, and why he had received those threats. He did not provide sufficient evidence regarding alleged threatening phone calls he received, nor did he sufficiently explain why the present Awami League Government is an ally of the PCJSS.

26. Further, I do not have sufficient evidence to explain the delay in the review applicant lodging the protection visa application, noting that the review applicant arrived in [Australia] [in] February 2013, but lodge his claim for protection on 16 September 2015. This is a matter which would have been discussed at the hearing because in my view, the delay in lodging the protection visa application may undermine the credibility of the review applicant’s claims.

27. The review applicant did not provide enough details as to why he would be arrested if he returned to Bangladesh, or why he believed he would be tortured or treated inhumanely, or why he would be handed over the a ‘killing squad of the PCJSS’ on his return to Bangladesh or ‘killed in a cross fire in the hills area’ between the police and members of the PCJSS.

28. The review applicant has not provided sufficient information about why he claimed that he was not aware that he was the subject or a criminal investigation or has criminal charges against him in his protection visa application form which was filed in September 2015, yet provided a ‘First Information Report’ to the delegate which stated that the next court date was ‘[a date in] April 2013.’ There is insufficient evidence to inform me about how this ‘First Information Report’ came into the possession of the review applicant, and this information would be relevant to me in determining whether the ‘First Information Report’ is a credible document.

29. Although there was no claim raised by the applicant that he feared harm because of his ‘[specified] ethnicity’, I note that the delegate made a finding in this regard. Had the review applicant attended the hearing, I would have been in a position to clarify whether he indeed fear harm because of his ethnicity. As there is no evidence about this matter before me, I am unable to make any finding about this.

30. Given the lack of information identified above, it is impossible for me to know what significance I should attach to the applicant’s assertions, without more detail being provided by the review applicant. The review applicant has not provided any further information to me to determine if he has suffered persecution in the past; whether his fear of facing persecution is owing to a his race, religion, nationality, membership of a particular social group, or his political opinion, or if his fear is well-founded.

    CONCLUSION

31. As a result of the insufficient information and lack of detail contained in the review applicant’s claims, I cannot be satisfied that he has been persecuted for one of the reasons as set out in s.5J(1) of the Act in the past, nor can I be satisfied that there is a real chance that he would be persecuted for these reasons in the reasonably foreseeable future. I am not satisfied that the review applicant has a well-founded fear of persecution for any reason under s.5J of the Act, For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

32. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the same reasons above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the review applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm. I am not satisfied that the review applicant is a person in respect of whom Australia has protection obligations. Therefore, the review applicant does not satisfy the criteria set out in .36(2)(aa).

33. There is nothing before me to suggest that the review applicant is a member of the same family unit as a person who satisfies s.36(a) or (aa) and who holds a protection visa. Therefore the review applicant does not satisfy s.36(2)(b) of the Act.

    DECISION

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

    Nathan Goetz
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:    For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:    For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)    the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …