1701101 (Refugee)

1701101 (Refugee) [2022] AATA 4747 (2 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701101
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Nathan Goetz
DATE:2 November 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 November 2022 at 3:18pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – Bangladesh Nationalist Party (BNP) – credibility concerns – lack of knowledge of the BNP – non-production of corroborative documentation – failure to seek protection in first safe country – voluntary return to Bangladesh – incorrect information in visitor visa application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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

This is an application for review of a decision made under s 65 of the Migration Act 1958 (the Act) by a delegate of the Minister to refuse to grant the applicant a protection visa.
BACKGROUND
The applicant identifies as a male citizen of Bangladesh presently located in Australia.
On 13 September 2016 the applicant was offshore and granted a temporary work (entertainment) visa. [In] September 2016 the applicant arrived in Australia holding this visa.
On 30 September 2016 the applicant applied for the protection visa. On 11 January 2017 the applicant attended a delegate interview to discuss his protection claims.
On 13 January 2017 the delegate refused to grant the visa on the basis that the applicant did not satisfy s 36(2)(a) or (aa) of the Act.
On 22 January 2017 the applicant applied to the Tribunal for a review of the refusal decision.
On 4 November 2020 the Tribunal wrote to the applicant under s 425(1) of the Act and invited him to appear at a Tribunal hearing scheduled for 4 December 2020 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was obligated to invite the applicant to appear at a Tribunal hearing because the Tribunal decided that it should not decide the review in the applicant’s favour on the basis of the material it had.
On 4 December 2020 the applicant appeared at the Tribunal for a Tribunal hearing to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Bengali languages.
Criteria for a protection visa
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.
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.
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 themselves 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).
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.
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.
Sections 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 reg 1.12 of the Regulations
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
CONSIDERATION OF Claims and evidence
The Tribunal has considered all the evidence in this case, including what the applicant told the delegate at interview and what the applicant told the Tribunal at the Tribunal hearing.
Identity and travel outside of home country
The Tribunal has considered the content of the application form. In the form, the applicant identifies as a male who was born in [year] in Mymensingh, Bangladesh and claims citizenship of that country. He provided his Bangladeshi passport which was issued [in] 2014 and was valid [until] 2019. He claims no other citizenship or right to enter and reside in a third country. He has never been known by any other name. He has never married or been in a de facto relationship. He has a mother and father in Bangladesh, and [number] brothers, [number] of whom live in Bangladesh and one who lives in [Country 1]. He is not in contact with any of them.
He departed Bangladesh from Dhaka [in] September 2016 and arrived in Melbourne [in] September 2019.
He declared that he had been ‘deported for illegal stay’ from [Country 2] on 14 August 2014. He has not applied for refugee status or protection in a country other than Australia. He declared his travel to [Country 2]. He was there between 28 April 2007 and 14 August 2014 and lived in [City]. The purpose of this travel was for a ‘visit’.
He declared travel to [Country 3]. He was there from 20 September 2014 until 24 September 2014 for a ‘visit’ but did not declare where he lived in [Country 3].
He declared his residential history in Bangladesh as [Village 1], Bhaluka, Mymensingh, Bangladesh between birth and March 2007, and [address], Gulshan, Bangladesh from September 2014 until September 2016.
He declared employment as owner of a [business] from July 2003 to April 2007 in Bhaluka.
Protection claims raised in the protection visa application form
The protection visa application form asked the applicant for his reasons for claiming protection. The applicant directed the reader to his statement. In this statement, the applicant wrote that he was an active member of the Bangladesh Nationalist Party (BNP) and was working hard for the party and when opportunities arise, he will be able to lead the local members effectively and responsibly to the requirements for the party. He had the skills and knowledge to engage in decision making and gradually internalise inclusion and best practices into party structures at all levels. He became [office bearer] of his area and made huge progress in grassroots level politics.
The opposition Bangladesh Awami League members realised his activities and attempted to kill him. The 2006 to 2008 caretaker government assumed power at the end of October 2016 following the end of term of his party. The Awami League boycotted the election and violence and political rioting followed. The military intervened and a state of emergency was declared.
The applicant with other leader(s) was arrested and tortured in the name of interrogation. He family paid 5 lack taka for his release. He let Bangladesh after organising a visa to [Country 2]. He stayed in [Country 2] until he was deported in 2014.
When he was back in Bangladesh, he realised the Awami League cadres killed many of his BNP leaders and members. They were looking for him. He sayed a few hours and left home in the middle of the night. Early in the morning Awami League cadres came to look for him. He decided to stay in Dhaka and planned to leave Bangladesh.
He seeks protection in Australia because he feared that if he went back to Bangladesh he will be killed.
Oral evidence given at delegate interview and oral evidence given at Tribunal hearing
The Tribunal has considered the applicant’s oral evidence given at the delegate interview and at the Tribunal hearing. The oral evidence is included where relevant in the Tribunal’s findings as detailed below. The applicant told the Tribunal hearing that the information contained in the protection visa application form was true, that what he said at the delegate interview was true, and that all his protection claims were raised in the protection visa application form were true.
FINDINGS AND REASONS
The issue in this case is whether the applicant is owed protection obligations because the applicant is a ‘refugee’, meets ‘complementary protection’ or is a member of the same family unit of such a person.
For the following reasons, the decision to refuse to grant the applicant the protection visa must be affirmed.
Country of reference
The Tribunal is satisfied that the applicant is a citizen of Bangladesh because he has provided a Bangladesh passport which identifies him as a citizen. There is no information to support a suggestion that the applicant is a citizen of any other country or that he has the right to enter and reside in another country. Therefore, the country of reference for the protection visa is Bangladesh.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Was the applicant ever involved in the Bangladesh Nationalist Party as claimed or harmed in Bangladesh as claimed?
In the applicant’s written statement, which he declared in the protection visa form was completed without assistance, he declared his ‘hard work’ for the party, that he ‘will be able to lead the local members effectively and (had) responsibility to the requirements for the party. He wrote of his ‘skills’ and ‘knowledge to engage in decision-making’ and wrote about including ‘best practices into party structures’. He noted that he was a ‘[office bearer]’ of his area and made ‘huge progress’ in the grassroots level of politics. He told the delegate during the interview that he had been a member of the student wing of the BNP since 2003 but he had no evidence of his membership because he did not think to bring it from Bangladesh and did not think it was required. Yet, to the delegate he could tell him nothing more about the BNP other than it ‘was good’. He could not name any principle which the BNP stood for, and when the delegate started referring to some of the principles of that organisation (as apparently contained in their party constitution), the applicant explained his inability to tell the delegate about the principles was because he did not understand what the delegate meant by principles.
The Tribunal raised with the applicant that he was unable to tell the delegate about any principles of the BNP and could only describe the party as ‘good’. This suggested to the Tribunal that the applicant was not a witness of truth and may be fabricating his protection claims. The applicant repeated the explanation he gave to the delegate, namely that he did not understand what the word ‘principles’ meant. The Tribunal has considered that response but is not persuaded by it. The delegate interview was conducted by the assistance of an interpreter in the Bengali language, and given the only thing that the applicant could tell the delegate about the BNP was that it was ‘good’, the Tribunal concludes, when it considers the other concerns it as has discussed in this decision, that the reason the applicant could provide no meaningful detail about the BNP is because he was never involved as he claimed. It is incredulous for the Tribunal to believe that the applicant, who was supposedly involved with the BNP since 2003, had been a [office bearer] and had achieved quite a lot would not be able to tell the delegate more about this political party.
The concern that the Tribunal had about the applicant’s past claimed involvement also extended to the fact that the applicant had not produced any documentary evidence to confirm his party membership, role in the party, or any document to corroborate his claimed profile. This was raised with the applicant by both the delegate at interview and at the Tribunal hearing. The applicant suggested that the reason no corroborative material had been provided was because he was unaware that he needed to do so. He told this to the delegate at the Tribunal. Given that the applicant claimed at the Tribunal hearing that he travelled to Australia to claim protection here, and that he was aware that protection was offered in Australia prior to his arrival, it was curious that the applicant would not have brought that material with him.
The Tribunal pointed out to the applicant that the issue about the non-production of corroborative documentation was raised with him at the delegate interview, the Tribunal’s acknowledgment of his review application on 23 January 2017 advised him that if he wished to provide documentation for the Tribunal to consider he would need to do so as soon as possible, the hearing invitation of 4 November 2020 advised him that any documents would need to be provided to the Tribunal 7 days prior to hearing, and the ‘Hearing Response to Invitation’ form that the applicant completed also had a section relating to the giving of documents. The applicant then said that as he had no siblings in Bangladesh at the moment, he was unable to get documentary evidence of his BNP activity but would try to do so if he had more time.
The Tribunal advised him that it would consider any information he gave to the Tribunal before it decided the review application. The possible future production of any documents, given the timing, namely four and a half years since the applicant lodged his protection visa application, in combination with the other concerns that the that the Tribunal has about the applicant’s credibility, lead the Tribunal to conclude that the fact that there is no corroborative evidence of the applicant’s involvement in the BNP is due to the fact that the applicant has never been involved in the BNP as claimed.
The applicant also claimed in his oral evidence that all of his siblings were outside of Bangladesh. He said his family were all BNP supporters. He told the Tribunal that at the time he left Bangladesh for Australia in September 2016, he had only two siblings remaining in Bangladesh. His evidence suggested that all his siblings had to leave Bangladesh because they were BNP supporters. The Tribunal pointed out to the applicant that in his protection visa application form, which was completed on 29 September 2016, he claimed that [number] of his siblings were in Bangladesh at that time. The Tribunal suspects that the applicant’s claimed lack of ability to obtain documents due to siblings not being in Bangladesh was invented by the applicant as an excuse for why the applicant had not provided any documentation.
The Tribunal also views the fact that the applicant provided contradictory evidence about the location of his siblings (which the Tribunal believes was done at the Tribunal hearing to bolster his claims that his family were supportive of the BNP and had to leave Bangladesh for that reason) to demonstrate that the applicant was prepared to manufacture evidence in order to be granted a protection visa. The applicant disputed that he had manufactured his evidence that his family were supporters of the BNP.
The Tribunal accepts that the applicant gave consistent oral evidence at the Tribunal hearing of the main historical facts contained in his written statement. He claimed that he was arrested with other people. He told the Tribunal that this happened at the end of 2006 during a protest when there was a fight. The applicant said that he was stabbed in the [body]. He told the Tribunal the scar was visible. He was arrested by police at the scene, and he was tortured and beaten. He was held for three days. He was released after 5 taka was paid. He was given bail. He told the Tribunal that he left Bangladesh before the false claim against him could be forwarded to the court. He was then outside of Bangladesh in [Country 2].
The Tribunal was not persuaded by the applicant’s oral evidence. It repeated, without any of the detail that it would be reasonable to expect a person to include when they were telling anther person about their own lived experiences. For example, the applicant did not tell the Tribunal about when in 2006 this protest was, how the fight started, what he meant by beating, when this occurred, what exactly occurred, and was unable to address the Tribunal’s concern about his claim that the police were acting at the instance of the Awami League in arresting him, but were prepared to release him on bail, which the applicant said they did not as a bribe, but to secure him a grant of bail. The applicant claimed he was able to depart Bangladesh in 2007 because at that stage because the Awami League were not in power but was not able to explain how he was able be leave Bangladesh for [Country 2] in April 2007 despite being on bail with Awami League cadres looking for him. The applicant was also unable to explain how the applicant was able to successful depart Bangladesh in September 2016 if the was being sought after by Awami League cadres.
In light of the fact that the applicant could not tell either the delegate or the Tribunal about the principles of the BNP, the lack of corroborative documentation to support the proposition that the applicant was a member of the BNP, and that his account of his arrest, assault and claimed detention was, in the Tribunal’s assessment, superficial and lacking in the surrounding detail that would be expected to accompany a person recalling their own lived experience, and the fact that the applicant was able to depart Bangladesh without any difficulty despite being a person of interest to the Awami League, lead the Tribunal to find that the applicant was not arrested, assaulted and detained as he claimed.
Why did the applicant not seek asylum in [Country 2]?

According to the applicant’s protection visa application form, the applicant left Bangladesh for [Country 2] after his arrest and torture. The applicant told the Tribunal that he travelled to [Country 2] on a visitor visa which was valid for three months. Given the applicant remained in [Country 2] from his arrival in April 2007 until August 2014, the Tribunal was curious as to what steps the applicant took to remain in [Country 2], as he had apparently gone to that country to seek safety following his claimed arrest, assault and detention.
The applicant initially told the Tribunal that he applied for protection in [Country 2] but made no such declaration in his protection visa application form which asks that very question. The applicant then told the Tribunal that there was ‘no provision’ for refugee applications in [Country 2] but he ‘tried for protection.’. When asked to explain how he ‘tried’ to apply for protection, he said that he spoke to a lawyer but after he became an unlawful non-citizen in [Country 2], there was ‘no option’ for him. He told the Tribunal that he was deported from [Country 2] because he was residing there unlawfully and that [Country 2] officials came to his home, placed him into immigration detention, and deported him after 7 days.
The Tribunal is aware that the United Nations High Commission for Refugees provides for assessment of asylum claims in that country. The Tribunal struggles to accept that if the applicant was genuine in his claims about his past experiences in Bangladesh prior to his departure from that country in 2007, he would not have gone to the United Nations High Commission for Refugees in [Country 2] and made an asylum claim. The fact that the applicant claimed that there was ‘no provision’ for these assessments in [Country 2] demonstrate that the applicant either lied to the Tribunal about his knowledge about seeking asylum in [Country 2], or alternatively, he had no idea about the fact that he could claim asylum in [Country 2] because he did not make inquiries about this. If it is the later, the Tribunal’s assessment is that the applicant had no knowledge about this because he had no reason to approach the United Nations High Commission because his claims were not true and were fabricated to claim protection in Australia.
When asked by the Tribunal whether he wished to comment on the fact that he could have applied for asylum in [Country 2] but did not do so (which may lead the Tribunal to reason that he had manufactured his protection claims), the applicant responded that it was ‘very difficult at that time’ to do that during the validity period of [Country 2] visa. The Tribunal is not aware, and nor did the applicant provide, any persuasive evidence that he would not have been permitted to apply for asylum in [Country 2] after his visitor visa ceased. The Tribunal is satisfied that the failure of the applicant to apply for asylum in [Country 2] demonstrates that his protection claims were fabricated in order to get a protection visa in Australia.
Why did the applicant return to Bangladesh from [Country 3] if he feared harm in Bangladesh?
The Tribunal accepts that because he returned to Bangladesh from [Country 2] through deportation, he did not voluntarily return to his home country. However, the applicant’s protection visa application form demonstrates that after his return to Bangladesh in August 2014, he remained in Bangladesh for approximately 6 weeks until he left for [Country 3] where he remained for 4 days, before returning to Bangladesh where he remained until he arrived in Australia in September 2016.
Concerning the fact that the applicant had been in [Country 3] for four days in 2014 but voluntarily returned to Bangladesh, the Tribunal thought that this demonstrated that the applicant did not have any genuine fear of harm in Bangladesh. The applicant said that he went to [Country 3] to ‘get to know how to apply for visas to other countries’ but said that it was not possible to stay in [Country 3].
The Tribunal also wondered why the applicant would not remain in [Country 3], as he had demonstrated a willingness to remain in [Country 2] despite being an unlawful non-citizen. In response to the Tribunal’s assessment that his voluntarily return to Bangladesh from [Country 3] may demonstrate that his claims were not true, the applicant did not address this concern directly, instead stating that he was in hiding in Bangladesh prior to going to [Country 3]. When pressed further about why he did not stay in [Country 3], he said that it was not possible because on a visitor visa he could only remain there for a ‘month or two’ while also saying that he did not know how long his visitor visa allowed him to remain in [Country 3].
The Tribunal was not persuaded by the applicant’s response about why he would return to Bangladesh from [Country 3] after four days despite the fact he was apparently allowed to remain in [Country 3] for ‘a month or two.’ The applicant did not provide any specific detail about inquiries he made about applying for a visa to remain in [Country 3]. The Tribunal is satisfied that the applicant’s voluntarily return to Bangladesh from [Country 3] and that his failure to remain in that country demonstrate that he had no fear of harm returning to Bangladesh because his claims are not true and were fabricated in order to claim protection in Australia. The Tribunal also suspects that the applicant’s trip to [Country 3] was to build up a positive migration history for the purpose of applying for a visitor visa to come to Australia, especially in light of the fact that the applicant said it was his intention to come to Australia and apply for a protection visa.
Has the applicant demonstrated dishonesty in information provided in his visitor visa application to come to Australia, and if so, what can be made of that?
The Tribunal asked the applicant whether he declared in his visitor visa application for travel to Australia that he had overstayed his visa in [Country 2] and been detained/deported from that country. He said he did not and explained his failure to do so due to a ‘friend helping him’ to apply for that visa, and he did not realise that he needed to provide that information in the visitor visa application form.
The Tribunal is aware that the visitor visa application forms to visit Australia require this information to be declared. In the Tribunal’s assessment, the applicant’s failure to declare that he overstayed his visa in [Country 2] and been detained/deported suggested that the applicant had a flexible approach to the truth and was prepared to say (or in this case, not say) whatever he thought would assist him to obtain a favourable migration outcome. The Tribunal reasoned that his willingness to provide false information in the past may demonstrate that he was willing to provide false information now to obtain a protection visa. The Tribunal put its concern to the applicant about his willingness to provide false information and the inferences the Tribunal may draw from this past conduct. The applicant again repeated that a friend helped him complete the form.
The Tribunal was not persuaded by this response. The Tribunal does not accept that the applicant would not know the answers he provided in the visitor visa application form to come to Australia. The Tribunal is satisfied that the applicant has a flexible approach to the truth and is satisfied that this flexibility to the truth has been deployed to claim protection in Australia.
Why was the applicant able to reside in Dhaka in Bangladesh between September 2014 and September 2016 without incident if his claimed fear of harm is true?
In the visitor visa application form, the applicant declared that he lived in Gulshan, which is a district of Dhaka, between September 2014 and September 2016. In the protection visa application form, the applicant did not raise any instance of harm that he claimed to have suffered during that stage. The Tribunal discussed with the applicant why he could not go back to Bangladesh and live in Dhaka given he appeared to have had no problems there during that time prior to his travel to Australia. The applicant put this down to the fact he was ‘in hiding’ because he could be kidnapped or beaten up.
The Tribunal is not persuaded that there is any truth to the claim that the applicant was ‘in hiding’ which was why there was no further harm during the two years he lived in Dhaka. In light of the other concerns that the Tribunal has about the applicant’s credibility, the Tribunal is satisfied that the reason there was no further harm suffered by the applicant in Dhaka during the two years he lived there because he did not suffer harm in the past and was of adverse interest to anyone in Bangladesh.
CONCLUSION
The Tribunal is not satisfied that there is any truth to the applicant’s narrative that he or his family were supporters of the BNP, or that he was harmed in connection with his membership of that organisation or that he participated in any political activity that resulted in him being assaulted, arrested, detained or harmed in any way in connection with his political opinion or any other way. The Tribunal is satisfied this was invented in order for the applicant to claim protection in Australia.
The Tribunal is satisfied that the applicant has a flexible approach to the truth in light of the demonstrated lies he provided in the visitor visa application form to come to Australia, as outlined above. The Tribunal is satisfied that the applicant has utilised a flexible approach to the truth in order to make protection claims in Australia.
The Tribunal is satisfied that the applicant’s return to Bangladesh from [Country 3] demonstrates that his claimed fear of harm is not genuine. The Tribunal is satisfied that the applicant was able to depart Bangladesh for [Country 2], [Country 3] and Australia without difficulty is indicative that he is of no adverse interest to any person, group or authority.
The Tribunal is satisfied that the fact that the applicant did not experience any harm during the two years he lived in Dhaka between 2014 and 2016 is demonstrative of the fact that he is of no adverse interest to any person, group or authority.
The Tribunal is not satisfied that the applicant has engaged in any activity in Bangladesh that places him at risk of harm in that country for any reason. The Tribunal is not satisfied that upon the applicant’s return to Bangladesh, he would now engage in any political activity (as the Tribunal is not satisfied that he has done so in the past).
The Tribunal rejects the applicant’s claims and the factual basis of those claims as fabrication in order to achieve a protection visa in Australia. There is no truth to them.
Refugee
For the reasons given above, the Tribunal not satisfied that there is a real chance of serious harm to the applicant in Bangladesh on account of his race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Bangladesh, there is a real risk the applicant will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
Member of the same family unit
For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and holds a protection visa.
Therefore, the applicant does not satisfy s 36(2)(b) or (c) of the Act.
decision
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2022] AATA 4747

2 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction